Department of Transportation

Draft Preliminary Plan for 

Implementation of 

Executive Order 13563

Retrospective Review and Analysis 

of Existing Rules

May 2011
Department of Transportation

Preliminary Plan for Implementation of Executive Order13563

Retrospective Review and Analysis of Existing Rules

I. Executive summary of preliminary plan and compliance with Executive 

Order 13563

Executive Order 13563 (E.O. 13563) stresses the importance of an 

agency having a regular, ongoing plan to review its existing regulations. 

When a final rule is issued, regardless of the quality of the agency’s 

analysis, it cannot be certain that the rule will work as intended and that 

the costs and benefits will match the agency’s estimates. The Department 

of Transportation (DOT or Department) has a plan that requires all of its 

existing rules to be reviewed every 10 years to determine whether they 

need to be revised or revoked. We publish the plan in our semi-annual 

Regulatory Agenda and posted on the Department’s website. Through this 

as well as special reviews or other publications that the Department or its 

operating administrations also use, the public is provided opportunities to 

comment on our priorities for review as well as provide us with 

information on the need for changes to particular reviews. In response to 

E.O. 13563, the Department has decided to improve its plan by adding

special oversight processes within the Department; encouraging effective 

and timely reviews, including providing additional guidance on particular 

problems that warrant review; and expanding opportunities for public 

participation.

II. Scope of plan

a. DOT and the elements of the Department that are included in this 

plan. The Department of Transportation (DOT) consists of ten operating 

administrations and the Office of the Secretary, each of which has 

statutory responsibility for a wide range of regulations. DOT regulates 

safety in the aviation, motor carrier, railroad, motor vehicle, commercial 

space, and pipeline transportation areas. DOT also regulates aviation 

consumer and economic issues and provides financial assistance for 

programs involving highways, airports, public transportation, the maritime 

industry, railroads, and motor vehicle safety. The Department writes 

regulations to carry out a variety of statutes ranging from the Americans 

with Disabilities Act to the Uniform Time Act. Finally, DOT develops

and implements a wide range of regulations that govern internal programs 

such as acquisitions and grants, access for the disabled, environmental 

protection, energy conservation, information technology, occupational 

safety and health, property asset management, seismic safety, and the use 

of aircraft and vehicles. The following is a list of the elements of the 

Department:
• Office of the Secretary (OST)

• Federal Aviation Administration (FAA)

• Federal Highway Administration (FHWA)

• Federal Motor Carrier Safety Administration (FMCSA)

• Federal Transit Administration (FTA)

• Federal Railroad Administration (FRA)

• Maritime Administration (MARAD)

• National Highway Traffic Safety Administration (NHTSA)

• Pipeline and Hazardous Material Safety Administration (PHMSA)

• Research and Innovative Technology Administration (RITA)

• Saint Lawrence Seaway Development Administration (SLSDC)

b. Documents covered under this plan

This plan covers all of the Department’s existing rules. Any review of a 

listed rule may also include related guidance, information collections, and 

other documents, such as waivers and interpretations. 

III. Public access and participation in this plan development

a. Public Access. 

i. Written comments. In response to E.O. 13563, DOT published a 

notice in the Federal Register on February 16, 2011, requesting 

comments on a plan for reviewing existing rules as well as 

identification of existing rules that should be reviewed because 

they may be outmoded, ineffective, insufficient, or excessively 

burdensome. The notice provided a link to the docket and the 

docket number for this proceeding. It also announced that we 

would hold a public meeting, chaired by the DOT General Counsel 

and attended by our operating administration chief counsels, on 

March 14, 2011. 

ii. Public Meeting. On March 3, 2011, we published a notice

providing information on how the public could speak at the 

meeting and take advantage of other opportunities for

participation. At the public meeting, which was held at DOT 
headquarters in Washington, D.C., we permitted speakers to 

participate in person or via telephone; we also broadcasted the 

meeting via web streaming and listen-only phone lines for those 

who could not attend in person.

iii. IdeaScale. The public meeting notice also announced that DOT 

had created a website using IdeaScale to provide the public with an 

alternative means to provide us with written feedback in a less 

formal manner. We noted that this would permit participants to 

discuss ideas with others and agree or disagree with them, perhaps 

making it particularly useful for individuals and small entities, 

including local and tribal governments. We also suggested it 

might help participants refine their suggestions and gather 

additional information or data to support those suggestions.

iv. Effective comments. Finally, in our notices and on-line (see the 

heading “How do I prepare effective comments?” under our

description of "The Informal Rulemaking Process"), we 

provided advice on how participants could make their suggestions 

more useful to us.

b. Public participation. We placed all comments, including a transcript of 

the public meeting, in DOT’s docket. We received comments from 102 

members of the public, with many providing us with multiple suggestions. 

In addition, we had 47 people participate in discussions on our IdeaScale 

site (32 others signed up but did not directly participate), through which 

we received 53 suggestions; 11 comments were submitted about others’ 

suggestions. Forty-seven people attended our public meeting in person, 

with 154 additional people watching via our web cast and 62 over our 

phone lines; 18 people spoke at the meeting (3 by telephone). A brief 

summary of each of the suggestions we received and the name of the 

person or organization submitting the comment is contained in Attachment

1 to this Plan.

c. Additional outreach efforts. The Department took a number of 

additional steps to ensure the widest possible audience received notice of 

our request for their participation in this important project. We issued a 

press alert, sent out a series of emails to a broad range of interest groups, 

and posted information on the Secretary’s blog and the DOT regulatory

webpage, with special alerts for updates. We also set up a special 

“button” on the DOT home page graphically designed to draw people’s 

attention and bring them to the IdeaScale site, where they could also get 

more information about the retrospective reviews.
IV. Current agency efforts already underway independent of E.O. 13563

a. Summary of pre-existing agency retrospective analyses of existing 

rules. 

i. Overview. For many years, the Department has been conducting

two general categories of retrospective reviews of existing rules. 

The first is a regular review of all existing rules over a 10-year 

period. The second consists of special reviews conducted on either 

an ad hoc basis or as part of a plan. Of course, the agency also 

may conduct reviews of rules in response to public petitions under 

the Administrative Procedure Act; those reviews may fall into 

either one of these categories.

ii. Regular review. 

1. Background. DOT has long recognized the importance of 

regularly reviewing its existing regulations to determine 

whether they need to be revised or revoked. Our 1979 

Regulatory Policies and Procedures require such reviews. 

We also have responsibilities under E.O. 12866

("Regulatory Planning and Review") and, now, 13563, as 

well as section 610 of the Regulatory Flexibility Act to 

conduct reviews. Finally, there are other requirements, 

such as one requiring that our rules be written in plain 

language. To ensure that all of our rules are reviewed in 

accordance with these requirements in an organized 

manner, beginning in 1998, DOT published, in the 

Regulatory Agenda, a plan listing all of our rules and 

assigned each to a particular year for review during the next 

10 years. In 2008, we published our plan for the next 10 

years. Updates to our plan are made each Fall in the 

Regulatory Agenda, including brief reports on the progress 

made on the reviews. We plan to continue this process, 

creating new plans every 10 years and regularly updating 

them.

2. Review process. Each DOT agency divides its existing 

rules among the 10 years as it deems appropriate, using a 

variety of criteria. For example, they may group related 

rules together for review in one year or base the timing of 

the review on a perceived need for an earlier review. The 

one exception to this general process is the FAA. The 

FAA, in addition to reviewing its rules in accordance with 

the schedule provided in the Agenda for reviews required 

under section 610 of the Regulatory Flexibility Act, has 
established a process by which the public is asked every 

three years for its comments on which rules need review 

the most. (See, e.g., 72 Federal Register 64170.)

3. Publication/public participation. Our review plan is 

published in Appendix D to our Semiannual Regulatory 

Agenda. We also describe our review plan and provide a 

link to it on DOT’s regulatory website, regs.dot.gov. The 

actions we are taking are described in the Agenda in more 

detail. Through the Agenda and our website, we request 

public comment on the timing of the reviews. For example, 

we ask if there is a reason for scheduling an analysis and 

review for a particular rule earlier than we have. Any 

comments concerning the plan or particular analyses can be 

submitted to the appropriate regulatory contacts listed in 

our Agenda or on our website.

4. General information. In our description of our plan, we 

note that some reviews may be conducted earlier or later 

than scheduled. For example, events -- such as crashes --

may result in the need to conduct earlier reviews of some 

rules. We also note that we might make changes in 

response to public comment on the plan or in response to a 

Presidentially-mandated review. If there is any change to 

the review plan, we note the change in the next Regulatory 

Agenda.

5. Follow-up action. In Appendix D in each fall Agenda, we 

publish a very brief summary of the results of the analyses 

we have completed during the previous year. For rules we 

determine to have a significant economic impact on a 

substantial number of small entities, we announce that we 

will conduct a formal, section 610 review during the 

following 12 months. We also seek public comment on 

how best to lessen the impact of these rules and provide a 

name or docket to which public comments can be 

submitted. 

iii. Special reviews.

1. Ad hoc reviews. As a result of unplanned events such as 

crashes, we will also often conduct reviews of our existing 

rules. For example, after a major aircraft crash, the 

Secretary may immediately meet with senior officials to 

review information about the crash, including information 

on why existing rules did not prevent the accident or lessen 

the damage. This type of review may lead to significant 
changes to the rule. An example of this type of review is 

an ongoing review of rules covering motorcoaches that 

DOT initiated after two crashes earlier this year.

2. Planned reviews. As the result of the review of regularly 

gathered data or special studies, one of our agencies may 

notice a developing problem that warrants a review to 

determine why our existing regulations are not preventing 

the problem. For example, NHTSA decided to review its 

data to determine how occupants were dying in frontal 

crashes despite wearing seat belts and having air bags 

deploy. This review has spawned two research projects to 

determine whether revisions to the rules are necessary. 

Some specific examples of recent DOT initiatives are worth 

noting –

• Hazardous materials. In a report issued on 

March 1, 2011, PHMSA notes the hazardous 

materials “in transport that have been responsible 

for the most serious consequences in terms of 

deaths and major injuries during the years 2005 to 

2009.” The report “also identifies failure modes 

and the corresponding transportation phases that 

have resulted in the most high-impact casualties 

during the same period.” The agency notes that it 

will next analyze “alternatives to increase safety” 

and the findings from the report that it will consider. 

• Motor vehicles. Another report was issued by 

NHTSA on March 31, 2011. This report “describes 

the projects the agency plans to work on in the 

rulemaking and research areas for calendar years 

2011 to 2013” that are “priorities or will take 

significant agency resources.” For example, the 

agency notes that it is performing an analysis of the 

effect of electronic stability control, a device 

recently required on all automobiles and light 

trucks; it is also studying “the feasibility of a 

dynamic rollover test to identify occupant injury 

risk.”

• Truck and bus compliance, safety, and 

accountability (CSA). CSA is a major FMCSA 

initiative for the comprehensive review, analysis, 

and restructuring of the agency’s current safety 
monitoring system, as well as its compliance and 

enforcement programs. The initiative will optimize 

the resources of FMCSA and its State partners in 

ensuring that interstate truck and bus companies 

have effective safety management controls to 

achieve compliance with Federal safety and 

hazardous materials regulations. 

• Paperwork reduction. Existing rules governing 

hours of service (HOS) for operators of commercial 

motor vehicles require that the drivers complete 

logs of the hours they drive. This results in a 

significant information collection burden. An 

FMCSA retrospective review of hours of service 

rule compliance showed difficulties enforcing the 

log requirement; it also showed that there was

tremendous potential for reducing burdens and 

increasing compliance with the standards through a 

requirement for electronic on-board recorders 

(EOBRs). As result of this review, in a final rule 

issued on April 5, 2010, FMCSA required the 

devices on all vehicles operated by those with a 

history of non-compliance with HOS rules

beginning June 2012. This will result in an 

information collection burden reduction of 3.11 

million hours. On February 1, 2011, FMCSA

issued an NPRM that would require most of the rest 

of the industry to use EOBRs. Our preliminary 

estimate is that information collection burden hours 

could be reduced by up to approximately 70 million 

hours, but we recognize that many in the rest of the 

industry already use EOBRs. We will review and 

revise our estimates, as necessary, as we develop 

our final action on this rulemaking.

• Small disadvantaged businesses. As a result of a 

review of the Department’s Disadvantaged Business 

Enterprise rule, we issued a rule in January 2011 

that created a new mechanism concerning interstate 

certification that will reduce time and cost burdens 

on small disadvantaged businesses. The provision 

goes into effect in January 2012. Under the 

provision, a DBE certified in State A will not have 

to fill out a new application and go through a full 

certification process to become an eligible DBE in 

State B. Rather, State B will decide, on the basis of 
the application materials provided to State A, 

whether to certify the firm. If State B does not 

object to something specific about the firm’s 

eligibility within 60 days, the firm becomes 

certified in State B. If there is such an objection, 

the firm has an opportunity to respond on that 

specific point.

• Other NHTSA examples. NHTSA has numerous 

other good examples of it evaluations of the 

effectiveness of its rules. The agency prepared 10 

reports in the last two calendar years. A list of the

reports is contained in Attachment 3. The following 

findings were made because of these reports:

1. Weight should be taken out of larger light 

trucks rather than lighter vehicles to save 

fuel and affect safety the least.

2. Underride guards were working well in 

centered rear impacts, but corner impacts 

were a bigger problem.

3. Parents should keep children in child 

restraints at ages 3-4 and as long as possible, 

rather than graduating them to booster seats,

and should keep them in booster seats rather 

than graduating them to lap/shoulder belts. 

Child restraints are more effective than 

booster seats, which are more effective than 

adult lap/shoulder belts. This information is 

used in the NHTSA public affairs office and 

in child restraint checkpoints across the 

nation. 

4. Offset corner impacts (where there is not 

much structure) and truck underride were 

two main areas for NHTSA to do more work 

on with respect to frontal impact fatalities 

for those using seat belts and air bags. The 

agency has started research activities in both 

of those areas.

b. Specific rules already scheduled for retrospective analysis. We 

scheduled all of DOT’s existing rules as of 2008 for review during a 

specific year between 2008 and 2017. We published the schedule in 

Appendix D to our semi-annual Regulatory Agenda. See Attachment 2 to 

this Plan. 
V. Elements of preliminary plan/compliance with E.O. 13563

a. Overview of changes to DOT’s retrospective review plan in response 

to E.O. 13563. As explained in more detail in the sections V. and VI., in 

response to E.O. 13563, DOT will add the following new features to its 

existing retrospective review plan:

• We will add oversight and discussions of DOT’s 

retrospective review plans, including our priorities, to our 

weekly Regulatory Review Meetings.

• Our review teams will include others, such as inspectors 

and enforcement staff, in addition to any necessary

personnel involved in drafting the existing rule.

• We will use advisory committees to review the 

retrospective review plans for our operating administrations 

with sufficient rules to justify advisory committee review.

• We will add to our website, regs.dot.gov, the list of factors 

that we use to identify the need for a retrospective review 

and ask the public for comments on these factors and the 

appropriate metrics we should use in evaluating particular 

rules in those categories.

• We will incorporate the use of IdeaScale into our 

retrospective review process to allow the public to more 

easily and effectively submit comments on our process and 

suggestions for specific rules that should be reviewed.

• We will continue exploring potentially more effective ways 

to involve the public in our retrospective review process

through such things as our project with the Cornell eRulemaking Initiative.

• We will publish our retrospective review plan at 

regs.dot.gov.

b. Strong, ongoing culture of retrospective analysis. 

i. Ten-year plan. The voluntary establishment of an ongoing, 10-

year rolling retrospective review combined with the effective use 

of special reviews illustrates an existing, strong culture for such 

reviews in DOT. 

ii. Regulatory review meetings. To further increase the effective 

use of such reviews, in response to E.O. 13563, DOT will expand 

its use of its weekly Regulatory Review Meetings. Currently, each 

week, on a rolling schedule, the head of one of the operating 

administrations or OST is scheduled for a meeting with the Deputy 

Secretary, the General Counsel, and other senior OST officials to 

discuss, among other things, the status and substance of all of the
agency’s pending rulemakings. We will add to these meetings 

discussions of the operating administration’s/OST’s retrospective 

review plans. 

c. Prioritization. 

i. Factors. One of our primary goals is the improvement of DOT’s

regulations. Our regulations should be clear, simple, timely, fair, 

reasonable, and necessary. They should not be issued without 

appropriate involvement of the public; once issued, they should be 

periodically reviewed and revised, as needed, to assure that they 

continue to meet the needs for which they originally were 

designed. This philosophy, the general requirements identified in 

section IV.a.ii.1., and the general factors listed below have been, 

and will continue to be, considered by DOT officials in 

determining the need for retrospective reviews; they are not set out 

in order of priority:

1. The nature and extent of public complaints or suggestions 

(e.g., petitions for rulemaking).

2. The need to simplify or clarify regulatory language (e.g., 

based on requests for interpretation).

3. The need to eliminate overlapping or duplicative 

regulations.

4. The need to eliminate conflicts or inconsistencies with 

other rules.

5. The length of time since the last review. 

6. The importance or relevance of the problem originally 

addressed.

7. The burdens imposed on, and the benefits achieved for, 

those affected and whether they are greater or less than 

originally estimated.

8. The degree to which technology, economic conditions, or 

other involved factors have changed.

9. The number of requests for exemption and the number 

granted.

ii. Processes. 

1. Priority determinations. The processes we use to 

determine the priority or timing of a review may vary 

depending on the particular matter. We give some a 

priority based on an accident investigation or a review of 

accident or incident data. For example, during an accident 

investigation, the FAA may decide it has to immediately

take action, based on the agency’s assessment of the risk 

involved. We may give others a priority based on public 
comment in response to reports such as those described in

section IV.a.iii.2, above, where we may provide the public 

with initial estimates of risk or accident data. We may base 

some on special, general requests for public comments 

and/or public meetings, such as the one described under 

section III. above, in response to E.O. 13563. The public 

may provide us with good reasons for expediting one or 

more of the reviews. We base many priorities on the 

factors set out in the preceding paragraph; for example, a 

review of the number of exemptions recently granted may 

justify expediting a review or the time since the last review 

may warrant scheduling the review by a certain date. 

Similarly, we may identify a burden imposed on small 

entities that is no longer needed to achieve a safety 

objective, and we may decide the size of the burede

warrants quicker action. 

2. Other factors. Our priorities may be affected by other 

factors, such as budgetary resources, legislative 

requirements, or judicial mandates. The amount of time it 

takes to conduct a review and any resulting rulemaking 

process is dependent not only on budgetary and expert 

resources, but also very dependent on the complexity of the 

issues and the research and analyses that must be 

conducted. For example, NHTSA has found that a major 

statistical evaluation can use 1,000 – 2,000 hours of staff 

time, take 1 – 2 years to complete, and result in a 75-100 

page report. In the 1970’s, FAA conducted a review of its 

aircraft certification regulations, which covered 11 of the 

73 parts in the Code of Federal Regulations devoted to 

FAA rules. The FAA provided multiple opportunities for 

public participation before issuing the first of 8 notices of 

proposed rulemaking approximating 200 pages each, and 

then 9 final rules approximating 200 pages each. FAA 

made approximately 500 changes as a result of this very 

successful review, but it took 8 years to complete. 

3. Oversight and independence in setting priorities. Our

retrospective review priorities will also be reviewed during 

our weekly Regulatory Review Meetings. 

d. Initial list of candidate rules for review over the next two years.

 

i. DOT suggestions for reviews. We asked each of the DOT 

operating administrations and OST to identify existing rules for 

retrospective review in response to E.O. 13563. We asked them to 
give special consideration to the factors discussed under section

V.c.i. and ii.

ii. Public suggestions for reviews. As outlined in section III, above, 

we also invited the public to provide us with suggestions through a 

number of processes. 

iii. List of suggestions and DOT responses. Attachment 1 to this 

report contains a brief description of each of the existing rules

suggested by both DOT and the public as well as our response to 

the public recommendations. The first part lists those that we 

have decided warrant either further action; the second part lists

those that need further consideration over the next two years; the 

third part lists those for which we have determined no further 

action is appropriate or necessary. 

iv. Existing 10-year plan. That list in Attachment 1 is in addition to 

our existing plan set forth in Attachment 2 to this report, under 

which we will continue to conduct reviews.. 

e. Structure and staffing. DOT’s high-level agency official responsible for 

the retrospective review of the Department’s rules is:

Name/position title: Robert S. Rivkin, General Counsel

Email address: Robert.Rivkin@dot.gov

f. Independence of retrospective review team. There are a number of steps 

that we will take to ensure independence in the process of identifying rules 

for review: 

i. The team. In some instances, the team analyzing the need to 

revise or revoke an existing rule may be independent of those who 

helped prepare the rule. In others, it may not be. We believe that 

the team reviewing the need to revise or revoke an existing rule 

may need to include staff who helped to prepare the existing rule. 

They may be the only experts on the rule and the only experts on 

the subject in the agency. An agency also may have limited staff 

available to perform analyses. Based on our experience, those who 

prepared the existing rule do generally identify a need for a review

of, and the need to change, the rule. To ensure our objectivity, we 

expect our agencies to include others as part of the initial analyses. 

For example, they will talk with or independently hear from 

investigators, enforcement staff, or others who can advise on 

compliance problems, requests for interpretations, crashes, etc. 

They are all essential and part of the team.
ii. Agency oversight. Senior officials in the agency, often including 

the Administrator, oversee the process and approve the decisions. 

They are the ones who will ask about the involvement of others 

who are implementing the rule, investigating an accident, etc. 

iii. Departmental oversight. The General Counsel’s Office oversees 

the regulatory process in the Department and, in its review of 

decisions on retrospective review of rules, will review documents, 

ask questions, and challenge objectivity where necessary. In 

addition, senior Departmental officials will also oversee the review 

process through the Regulatory Review Meetings described above 

in section V.a. They provide one more level of independent 

review. Finally, the Department also has a Safety Council, 

consisting of officials from OST and the operating administrations.

The Council is involved in the Department’s highest priority safety 

issues, such as fatigue and its relationship to hours of service/flight 

and duty rules. It could make recommendations on rules that need 

restrospective reviews based on its analysis of underlying data.

iv. Advisory committees. DOT will also begin using advisory 

committees to review its plans for the retrospective review of 

significant rules for those of its operating administration with 

enough such rules to justify advisory committee involvement –

FAA, FMCSA, FRA, and PHMSA (for pipeline rules). This will 

ensure another level of independent review.

v. Third-party reviews. The Department also uses third parties to 

individually prepare analyses or review agency analyses. Some of 

the analyses or reports listed in Attachment 3, for example, were 

prepared by contractors or underwent independent peer reviews. 

Groups such as the National Academy of Sciences prepare some 

studies for us on the need for new or changed rules and 

recommended approaches. We have also received unsolicited 

recommendations for changes to our existing rules from other 

agencies and academic organizations and have incorporated their 

recommendations into our review program.

vi. Public participation. As part of its 10-year rolling review and its 

special reviews, the Department regularly asks for public comment 

on both the process and schedule for the reviews as well on 

specific rules. Many of the different elements of the Department 

also have good relationships with the interests affected by their 

rules. For example, FHWA has offices in every state and regularly 

meets with State officials affected by the agency’s rules or with the 

American Association of State Highway Transportation Officials. 

Similarly, FTA regularly meets with the American Public 

Transportation Association, NHTSA regularly meets with the 
automobile manufacturers and public interest groups, while FAA, 

FRA, FMCSA, and PHMSA have existing advisory committees

that can be used to review retrospective analyses of rules. Through 

these meetings and committees, we routinely get feedback on what 

rulemakings are problematic, along with suggested fixes. This

process, also, provides a check on the independence of our review 

process.

g. Actions to strengthen internal review expertise. DOT staff has 

significant expertise in the analysis of risk as well as the economic, 

environmental, energy, paperwork, and other effects of rules. When our

expertise is insufficient to address the issues that pertain to a particular 

rule, we contract with outside experts. We also provide extensive 

guidance and training opportunities (based on requests or determination of 

need). For example, we provide a regularly updated, document 

summarizing all of the requirements (and supporting guidance documents) 

imposed on the rulemaking process. We also provide regular training 

courses on the rulemaking process that include significant information on 

the various analytical requirements, legal standards, and retrospective 

review process. As needed, we have also provided specific training on 

subjects ranging from economic analysis issues to plain language. We 

have also used the Regulatory Review Meeting process described in 

section V.a. to identify staffing problems in the regulatory programs 

within DOT, and this would include problems with completing

retrospective reviews in an effective and timely manner. 

h. DOT plan for retrospective analysis. The Department will incorporate 

the changes made in response to E.O. 13563 into the existing process it 

uses for conducting retrospective analyses. It will also add to its existing 

retrospective review schedule the specific rules it has identified in 

response to E.O 13563 and listed in Attachment 1; the agency has either 

already decided to take rulemaking action to make those rules more 

effective or less burdensome or will complete its review to decide whether 

to take such action in the next two years.

i. Analytical decisions. Our considerable experience with economic and 

related analyses, influential scientific information, and retrospective 

reviews has provided us with knowledge on how to do effective analyses, 

ensure scientific integrity, and use the analyses in our decision making. 

We also rely on guidance from the Office of Management and Budget’s

Office of Information and Regulatory Affairs (OIRA) and other White 

House offices. 

j. DOT plan for revising rules. Throughout this document, we have 

described our plan and process and the modifications we will make based 

on our E.O. 13563 review. At a minimum, every ten years, we create a 

new schedule of all of our rules, and we must review each one over the 
next ten years. We also use special techniques to compel reviews in 

particular rulemakings. For example, we have used sunset provisions in 

some final rules. In others, we may commit to doing a review by a 

particular date.

k. Coordination with other agencies. Coordination of our actions with 

other agencies is a regular part of our rulemaking and our retrospective 

reviews. For example, as part of our E.O. 13563 review, we identified the 

need for rulemaking in an area regulated by the Department of Labor’s 

Occupational and Health Administration (OSHA). We have already 

contacted OSHA and the agency agreed to the need for our rule to 

supplant their rule. As another example, in reviewing the need to change 

existing automobile fuel economy labels, NHTSA and the Environmental 

Protection Agency decided to do a joint rulemaking to avoid requiring two

labels and also included the State of California and the Federal Trade 

Commission (FTC) in their discussions to maximize the potential that they 

could eliminate the need for the two labels that California and the FTC 

require. As further examples, the SLSDC regularly coordinates and 

jointly develops rules governing the St. Lawrence Seaway with its 

Canadian counterpoint; DOT coordinates regularly with the Department 

of Homeland Security where our rules on safety and security may overlap; 

and we also regularly consult with the Department of Justice on rules 

affecting access for those with disabilities.

l. Peer review of plan. We have subjected our plan to public comment and 

ensured that it was carefully reviewed by the highest level officials in the 

Department and by other agencies in the Federal government. While it 

has not been subject to a third-party peer review, some of the analyses of 

existing rules have been, especially when they involve information 

meeting the standards in OMB’s “Information Quality Bulletin for Peer 

Review,” and we would expect to have future analyses of that level

undergo peer review. An example of a study that was peer reviewed 

because it could be used in a future rulemaking to change existing fuel 

economy standards is the one on “Relationships Between Fatality Risk, 

Mass, and Footprint in Model Year 1991-1999 and Other Passenger Cars 

and LTVs” referred to in Attachment 3.

VI. Components of retrospective cost-benefit analysis

a. Evaluation metrics. 

i. The nature of the review. The metrics we use vary with the 

nature of the review. If we decide that a rule needs to be rewritten 

in plain language, the analysis would be quite different from one 

reviewing the need for burdensome safety operational rules. 
ii. Metrics and data comparisons. As primarily safety and 

environmental regulators, we cannot rely on control groups to 

compare results. DOT does make wide use of the experience of 

others who have regulated in similar areas, such as state or foreign 

governments. For example, in reviewing the effects of it seat belt 

rules many years ago, NHTSA considered the option of 

encouraging States to adopt mandatory seat belt use laws. As part 

of its analysis, it obtained data on the effectiveness of such laws in 

other countries. When FMCSA was reviewing the effectiveness of 

its hours-of-service rules and alternatives, it looked at the 

experience in other countries.

iii. Basis for decisions. We base our decisions on metrics on our 

experience with retrospective analyses, with a heavy reliance on 

OIRA guidance. We will continue to do so and will also add to 

our website, regs.dot.gov, the list of factors identified in V.b.i. and 

ask the public for any comments they might have on the factors 

and appropriate metrics to use in evaluating particular rules in 

those categories.

b. Data. The Department collects significant data on safety, the primary area 

in which it regulates. We update the data regularly, and the updates are 

one of the primary sources we use to identify the effectiveness of rules. 

Among the primary questions asked during the review of new rulemakings 

-- e.g., at the Regulatory Review Meetings described above in section V.a. 

-- are how we will measure the effects of those rules, if we do not already 

get regular data on the problem, and how we will improve the existing 

data sources.

c. Experimental or innovative processes. 

i. Encouragement of new technology/approaches. DOT strongly 

encourages the use of new technologies and other approaches to 

rulemaking that allow for easier adaptation to changed 

circumstances and other events that would otherwise require new 

or changed rules. One way we do this is by maximum use of 

performance standards. For example, when NHTSA determined 

there was a need to provide extra protection for the driver and front 

seat passengers in frontal collisions in motor vehicles, they 

required automatic protection rather than a specific devise such as 

automatic seatbelts or airbags. This also allowed the development 

of new technology that might be better or less expensive. In 

addition, NHTSA also encouraged the use of airbags, by allowing 

a driver-only bag in the front seat to comply for a short period, 

because it thought the technology warranted an exception while 

manufacturers worked further on adequate passenger-side airbags. 

Another example is the use of special permits or conditions by 
PHMSA and FAA. These allow regulated entities to use new 

designs, products, etc., with special conditions attached, if 

necessary, instead of having to wait for the existing rule to be 

revised to permit the new design. A similar example in DOT is to 

allow regulated entities to use an approach different from the rule 

if the entity establishes to the satisfaction of the Administrator of 

the agency that it provides a level of safety or protection equivalent 

to the rule.

ii. Use of innovative processes. Based on the good experience the 

Department has gained through its response to E.O. 13563 and the 

Obama Administration’s efforts to explore web 2.0 technology, we 

will incorporate IdeaScale into our regular process for public 

participation on retrospective reviews; we will add to our 

retrospective review portion of regs.dot.gov a link to the site 

where the public can submit any comments on the process or 

specific reviews and engage in discussions with others about their 

suggestions in an effort to improve on them. We will also continue 

our work with the Cornell E-Rulemaking Initiative and explore 

effective ways to incorporate blogging and other tools into 

retrospective reviews. 

VII. Publishing the Department’s Plan Online

a. We will publish our plan on our retrospective review page at regs.dot.gov 

and provide a link to it on our Open Government website.

b. The technical staff person we have charged with updating the plans online

is Jennifer Abdul-Wali, Jennifer-Abdul.Wali@dot.gov. 
Attachment 1

DOT Retrospective Review 

Charts1

This attachment contains a summary of, and DOT’s response to, each suggestion from the 

public (and DOT agencies) on DOT’s retrospective review. Based on our response to the 

suggestions, there are 3 parts to the attachment: Actions Being Taken, Further Study 

Required, and No Further Action.

 1 SLSDC and RITA do not appear in these charts because:

- SLSDC has only two rules. They apply only to vessels transiting the Seaway. A complete review of the 

rules/regulations is done annually by the SLSDC and Canada’s SLSMC; the rules are then updated annually as a 

result of the review. At the end of every navigation season industry meets in Canada and among other things, 

discusses informally any changes they believe need to be made to the joint regulations. The Canadian SLSMC 

decides if those suggested changes warrant further consideration. If so they are discussed by the SLSDC and 

SLSMC, proposed language agreed to and then published for comment. The joint regulations can only be changed 

on agreement by both countries. The last annual review was conducted and a final rule published in time for them to 

be effective upon the opening of this year’s navigation season, which was March 22. SLSDC received no public 

comments on their rules during DOT’s retrospective review in response to E.O. 13563. 

- RITA also has only a small number of rules although they do play a role in the development of some OST rules. 

RITA, too, got no public comments on their rules during DOT’s E.O. 13563 comment period.
Summary of Attachment 1

DOT has identified 70 regulations, some of which have multiple recommendations per 

regulation, upon which action will be taken.

o Of note:

 19 of these actions would reduce burdens upon small businesses

 11 of these actions would reduce information collection burdens

 12 of these actions would reduce burdens upon state, local, or tribal 

entities

 4 of these actions involve harmonizing/coordinating regulations with 

government agencies outside of DOT

DOT has identified 55 regulations, some of which have multiple recommendations per 

regulation that warrant further study before deciding on a course of action to amend the 

regulations

o Of note:

 9 of these actions would reduce burdens upon small businesses

 4 of these actions would reduce information collection burdens

 16 of these actions would reduce burdens upon state, local, or tribal 

entities

The following are some noteworthy examples of regulations identified for action:

FRA’s Positive Train Control Rule

Based on a review of its positive train control requirements as a result of 

concerns raised by industry through the filing of a lawsuit, FRA decided 

that revisions could be proposed that would reduce industry burdens 

without adversely affecting safety. The agency is currently considering 

modifying or removing provisions in the rule relating to the alternative 

route analysis and residual risk analysis used to determine whether 

positive train control system implementation may be avoided. We 

currently expect initial installation savings to total between $225M and 

$400M. Over twenty years, savings (including maintenance) should total 

between $440M and $1,040M.

DOT’s Environmental Rules

DOT maintains an overall agency Order establishing Departmental 

procedures for complying with the National Environmental Policy Act 

(NEPA), that supplements the Council on Environmental Quality's NEPA 

Regulations. In addition, DOT has ten operating administrations (OAs), 

most with their own formal procedures in either regulation or Order for 

complying with NEPA. DOT received many public comments during our 

E.O. 13563 retrospective review focusing on ways to improve 
implementation of NEPA procedures and/or to harmonize areas of 

perceived inconsistencies between OA NEPA practices. For example, 

certain parties recommended that DOT make changes to permit greater use 

by one OA of another OA's NEPA documents or procedures. We have 

formed a working group to pursue those and other related opportunities to 

improve the efficiency and quality of our Department-wide NEPA 

practices. Among those opportunities is a planned update to the 

Department's NEPA Order to foster early coordination on multi-modal 

projects, thus speeding project delivery by eliminating the unnecessary 

"sequencing" of environmental work. 

FAA’s Aircraft Certification Rules

The FAA intends to examine recommendations from a manufacturer 

whose comments indicate that a better “systems approach” to aircraft 

certification rules would avoid subsequent compliance problems. The 

comment notes that the FAA frequently needs to clarify and issue 

guidance after adoption of a rule and asserts that better integration would 

avoid these problems. Among the specific recommendations is that 

affected industry members be “given a chance to review the FAA’s 

specific planned language as a proposed rule before it is released for 

broader public input. This serves as an early means to determine 

rationally if the requirements are understandable doable, and have a 

practical means of compliance.” [Emphasis in original.] A number of 

specific regulatory provisions are cited as areas that need a better 

approach.

While the FAA is constrained by issues of fairness and ex parte 

communications, there may be ways to ensure additional discussion and 

communication with industry components early in the development, and 

the FAA is committed to getting as much useful input as practicable. The 

FAA’s Aviation Rulemaking Advisory Committee (ARAC) and Aviation 

Rulemaking Committees (ARC’s) are important tools in developing the 

best and most practicable ways of addressing identified safety concerns. 

To that end, we will be referring the specific recommendations for reform 

in the certification process to the relevant ARAC/ARC committee. 

OST’s Aviation Consumer Rules

As part of our E.O. 13563 retrospective review, the Air Transport 

Association (ATA) suggested that OST regulations, which are contained 

in 14 CFR Parts 200 through 399, should be reexamined as many of them 

arose, prior to the Airline Deregulation Act of 1978, in an era of intense 

economic regulation of all aspects of airline activities. ATA also pointed 

out that many of these older regulations were not subjected to the costbenefit analysis and centralized review process that Executive Orders 
12866 and 13563 impose today. The Department began a comprehensive 

post-deregulation review of the OST rules contained in 14 CFR Part 200 

through 399 in November 2007 and sought public comment, through the 

issuance of an advance notice of proposed rulemaking. Our retrospective 

review revealed that the existing rules are useful but not sufficient and that 

a stronger and expanded approach is needed. Since that time, the 

Department has issued two aviation consumer protection rules, one in 

December 2009 and another in April 2011. Each of these rules made a 

number of changes to ensure, among other things, that passengers are 

treated fairly and have accurate and adequate information to make 

informed decisions when selecting flights. As part of implementing E.O. 

13563, we are continuing to evaluate our aviation consumer protection 

regulations in order to expand on those that work (including filling 

possible gaps by undertaking new rulemaking where necessary or 

appropriate) and to modify, improve or repeal those that do not. We plan 

to conduct a third aviation consumer rulemaking to consider ways to make 

our regulatory program more effective in achieving our objective of 

preventing unfair and deceptive practices in air transportation and 

reducing any unnecessary burdens placed on industry. It would consider, 

among other things, whether to require that ancillary fees be displayed at 

all points of sale, to allow consumers to price shop for air transportation in 

an effective manner.

FTA’s Major Capital Investment Rules

As a result of a retrospective review of the rules that govern the “new 

starts” discretionary funding program authorized by 49 U.S.C. 5309, under 

which FTA provides funding for rail and other transit projects, the agency 

decided to consider revisions to the rules to improve the effectiveness of 

the projects that are funded. The agency published an advance notice of

proposed rulemaking on June 3, 2010 to engage the public in a discussion 

of the many issues involved. FTA intends to propose important changes 

to its rules that establish criteria for granting funds for rail and other transit 

projects. These changes may simplify the funding application process and 

reduce burdens on project sponsors. The intent of the proposal is to result 

in projects that meet the variety of objectives identified in the authorizing 

legislation. 

FAA Drug and Alcohol Testing Rules

A good example of an action that would reduce burdens for small 

businesses is an amendment the FAA is considering to 49 CFR Part 120 

(specifically §§ 120.117 and 120.225); it would allow Part 121 or 135 

operators that also conduct operations under 14 CFR Part 91 that are 

subject to drug and alcohol testing to combine their drug testing programs 

without requesting an exemption. This change will remove the 

unnecessary regulatory and financial burden of having separate testing 
programs for entities that operate both as certificate holders and separately 

under part 91, while continuing to ensure the level of safety required by 

the rules. Codifying under regulation the exemption relief granted to Part 

121 and 135 operators over the past two years would be a burdenrelieving, cost-beneficial action for affected air carriers. The FAA 

believes the vast majority of these operators are small businesses.

FHWA’s Manual on Uniform Traffic Control Devices (MUTCD)

A good example of one of our actions that could reduce burdens on State 

and local governments is changes that FHWA is considering making to the 

MUTCD. Based on comments from State and local governments that it

would reduce their burdens if we provided them greater flexibility to 

allocate financial resources in meeting compliance dates in the MUTCD, 

the agency is considering amending certain compliance date requirements 

and allowing State and local governments to prioritize upgrades based on

local conditions and the actual useful service life of traffic control devices. 
USDOT – Retrospective Regulatory Review – Attachment 1 - Actions Being Taken

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14 CFR part 1, 

Definitions and 

abbreviations

FAA Develop a single definition for Category III aircraft 

operations. The purpose of this rule change is to remove 

the definitions of Category IIIa operations, Category IIIb 

operations, and Category IIIc operations from 14 CFR 1.1. 

The delineated definitions of CAT IIIa, CAT IIIb, and CAT 

IIIc operations are no longer relevant to current operational 

practice and create barriers to international harmonization 

efforts and future minima reductions based on 

implementation of performance based operations. 

Determination of landing minima is based on ILS ground 

system integrity, continuity of service, and flight check 

performance classification. There is no distinction between 

CAT IIIa, IIIb, or IIIc for determination of lowest landing 

minima. Aircraft are certified for CAT III operations based 

on reliability and redundancy of aircraft equipment, with no 

distinction between CAT IIIa, IIIb, or IIIc. Operators are 

authorized to use their lowest CAT III landing minima based 

on airborne equipment and low visibility experience, with no 

distinction between CAT IIIa, IIIb, or IIIc. All references to 

CAT III in the Code of Federal Regulations are generic 

references to CAT III, with no distinction between CAT IIIa, 

IIIb, or IIIc. The approval of Category III ground navigation

systems, airborne navigation systems, and the approval of 

Category III operators will not be impacted by the removal 

of these definitions. Removal of these definitions will not 

adversely impact approach and landing operations, and will 

impose no additional costs on industry. 

These definitions pose an obstacle to international 

harmonization efforts, as harmonization agreements will 

generate the need to update orders, criteria, and guidance, 

as well as any regulation with a numerical definition that 

becomes functionally obsolete. The current CAT IIIa, IIIb, 

and IIIc definitions contain values which may hinder future 

efforts to implement lower minimums and visibility credit for 

the use of new technologies such as enhanced flight vision 

systems, synthetic vision systems, and combinations of the 

FAA The FAA intends to initiate a 

rulemaking project within the next 6 

months.

N N N
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two. This will be a challenge as performance-based 

operations continue to expand with the implementation of 

NextGen.approaches. 

14 CFR part 

120, Drug and 

alcohol testing 

program

FAA Amend Part 120 (specifically §§ 120.117 and 120.225) to 

allow part 121 or 135 operators that also conduct air tour 

operations (defined in §91.147) to combine their drug and 

alcohol testing programs without requesting an exemption. 

This change will remove the unnecessary regulatory and 

financial burden of having separate testing programs for 

certificate holders, create a cost savings to the industry at 

large, and continue to ensure the level of safety required by 

the rules. Codifying under regulation the exemption relief 

granted to part 121 and 135 operators over the past 2 

years will be welcomed as a burden-relieving, costbeneficial action by affected air carriers.

FAA The FAA intends to initiate a 

rulemaking project within the next 6 

months.

Y Y N

14 CFR part 67

Medical 

Standards and 

Certification

FAA Amend 14 C.F.R. § 67.401(j) to remove a requirement for 

individuals granted the Special Issuance of a Medical 

Certificate to have the letter of Authorization issued with 

their medical certificate in their physical possession or 

readily accessible on the aircraft while exercising pilot 

privileges. The FAA initially imposed this requirement in 

response to a 2007 International Civil Aviation Organization 

audit finding regarding proper endorsement of medical 

certificates. Retrospectively, and with the specific need for 

the regulation called into question by affected airmen, the 

FAA worked with ICAO and concluded that the full effect of 

the ICAO audit corrective action plan that had been agreed 

upon at the time of the audit was unintended. Therefore, 

the requirement for an individual to carry the letter of 

Authorization in his or her physical possession or readily 

accessible on the aircraft should be removed. This action 

imposes no cost and would be well-received by 

approximately 26,000 medical certificate holders affected. 

FAA The FAA intends to initiate a 

rulemaking project within the next 6 

months. 

N N N

14 CFR part 

121, Operating 

requirements: 

domestic, flag, 

and 

FAA Amend 14 C.F.R. §§ 121.579 and 135.93 regarding 

minimum altitudes for use of autopilot because the current 

requirements are unduly restrictive. 

Some of our regulations are focused solely on the use of 

FAA The Part 121 and Part 135 changes 

will be bundled into a single 

rulemaking project. The FAA 

intends to initiate a rulemaking 

project within the next 6 months.

N N N
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supplemental 

operations

14 CFR part 

135, Operating 

requirements: 

Commuter and 

on demand 

operations and 

rules governing 

persons on 

board such 

aircraft

Instrument Landing System (ILS) equipment and do not 

allow for leveraging of other technologies such as Ground 

Based Augmentation System Landing System (GLS), Wide 

Area Augmentation System (WAAS), and barometricvertical (baro-VNAV) navigation systems that also provide 

consistent, accurate vertical path guidance. Changing this 

rule will enable greater use of the autopilot on GLS and 

performance based navigation (PBN) approach procedures 

than is allowed by the current regulations. For example, 

today you cannot use an aircraft autopilot to descend below 

the decision altitude on other than ILS approaches. This 

limitation is operationally significant, especially on 

approaches with curved path final segments. These 

proposed changes to operational rules will complement 

specific changes to certification rule 14 CFR 25.1329 

effected in May 2006.

14 C.F.R. § 

25.853(d);

14 C.F.R. § 

25.856(a);

14 C.F.R. § 

25.856(b);

14 C.F.R. § 

25.855(c);

Seats Heat 

Release 

Special 

Conditions

FAA Eliminate the smoke density requirements on interior parts 

and materials; eliminate the requirement to perform Bunsen 

burner on components that require heat release testing

Specify application of radiant panel requirements to only 

the predominant insulation construction and not the 

miscellaneous items attached to the insulation blankets

Define that application of the burn-through penetration 

requirements is only required on the predominant insulation 

construction and not miscellaneous items attached to the 

insulation blankets

Provide guidance that testing is required only on primary 

cargo liner material; 

Eliminate 12 second vertical Bunsen burner test

Define criteria for small parts that are exempt from heat 

releasing test

Boeing 

Commercial 

Airplanes

The FAA has tasked the Aviation 

Rulemaking Advisory Committee 

(ARAC) to comment on and make 

recommendations for a threatbased approach to material and 

component flammability 

requirements. Material flammability 

requirements are significantly 

influenced by considerations of 

accident mitigation, in which an 

accident is already presumed to 

have occurred. Threats are 

identified and assessed per the 

requirements to determine if they 

can be reduced or eliminated 

altogether.

The items suggested are under 

discussion within the ARAC working 

group. There is no other research 

outside the FAA being conducted. 

The FAA will consider 

recommendations from the ARAC 

N N N
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as a basis for revising the 

regulations.

14 C.F.R. § 

25.831(b)(2)

FAA Modify the current rule (or develop advisory material) to 

allow for short term increases in CO2 concentrations for low 

power conditions above 0.5% up to 1.5%

Boeing 

Commercial 

Airplanes

The FAA is considering revisions to 

cabin air quality standards. The 

FAA is awaiting the outcome of the 

air quality survey and the ARAC 

recommendations pertaining to this 

issue.

The FAA is prepared to task the 

Aviation Rulemaking Advisory 

Committee (ARAC) to review the 14 

CFR part 25 cabin environment 

regulations, pending receipt of a 

joint industry-FAA sponsored air 

quality survey (i.e., via the 

American Society of Heating 

Refrigeration and Air Conditioning 

Engineer, Phase II Study), expected 

to be published in 2011. The ARAC 

will consider the commenter’s issue.

N N N

14 C.F.R. § 

25.981

FAA FAA did not take a “systems approach” in developing these 

rules which contributed to significant issues in 

demonstrating compliance with the rule

Boeing 

Commercial 

Airplanes

The FAA chartered the Fuel System 

Lightning Protection Aviation 

Rulemaking Committee (ARC) to 

recommend changes 14 C.F.R. § 

25.981 and associated guidance. 

The FAA is awaiting the final ARC 

recommendations. 

N N N

14 C.F.R. part 

21; 

14 C.F.R. parts 

23, 25, 27, and 

29; 

FAA Certification of new aircraft and technologies takes too long 

and costs too much to the manufacturer

Markings and placards require complete review to 

determine whether they are needed and where they should 

be located for unmanned aircraft

Change language regarding markings from “unless there is 

available in the aircraft” to “unless there is available to the 

operator”

Northrop 

Grumman

With industry and public 

participation, the FAA conducted a 

comprehensive review of 14 CFR 

part 23 in 2010 and developed 

recommendations for change 

(including the partial elimination of 

weight classifications, as noted by 

the commenter). We plan to launch 

an Aviation Rulemaking Committee 

(ARC) in January 2012 to provide 

N N N
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input on these recommendations by 

September 2013.

14 C.F.R. parts 

23, 25, 27, and 

29; 

14 C.F.R. §§ 

91.155; 

91.157; 

91.175; 

91.183; 

91.185; 

91.189; 

91.191; 

91.203; 

91.205; 

91.211; 

91.305; 

91.513; 

91.525; 91.603

FAA Reconsider regulations in light of differences in operations 

conducted by Unmanned Aircraft Systems (UAS)

Basic VFR weather minimums: Review regulation in light of 

new safety-enhancing technologies involving electronic 

means of “sight”

Takeoff and Landing under IFR: Review due to existence of 

safer approaches than standard instrument approach 

depending on design of aircraft

IFR communications: Aircraft with no pilot on board should 

not be required to report unforecast weather that is 

encountered

IFR operations: Two-way radio communications failure 

does not consider alternate means of communication 

between pilot and ATC

Cat II and III operations: Consider impact of new 

technology that allows safe landing in atmospheric 

obscuration – specifically with UAS that are equipped for 

non-visual landing 

Flight test areas should be approved for UAS

Northrop 

Grumman

These comments warrant further 

consideration. In fact, the FAA has 

undertaken a retrospective review 

of the existing basis for certification 

of aircraft, which UAS are obliged to 

meet, and we are considering what 

if any additions, changes, or relief 

may be appropriate. Operational 

considerations are being reviewed 

on an ongoing basis. Standards 

work, our research, and regulatory 

consideration relating to UAS will 

form the basis of any potential 

updates to regulations to address 

UAS specifically.

N N N

14 C.F.R. part 

23

FAA Evaluate and streamline the aircraft certification Aircraft 

Owners and 

Pilots 

Association

With industry and public 

participation, the FAA conducted a 

comprehensive review of 14 CFR 

part 23 in 2010 and developed 

recommendations. We plan to 

launch an Aviation Rulemaking 

Committee (ARC) in January 2012 

to provide input on these 

recommendations by September 

2013. 

N N N

14 C.F.R. part FAA Change the certificated flight instructor process by requiring Aircraft This comment warrants further N N N
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61 proof of currency in lieu of the reissuance of a new plastic 

certificate with an expiration date

Owners and 

Pilots 

Association

consideration. The FAA will 

consider these comments in the 

context of other priorities and seek 

additional input from the public.

Restrictions on 

Conveyance of 

Federally 

Obligated Land

FAA Investigate ways to make land transfers less onerous for 

airports

Airports 

Council 

International

An airport sponsor's ability to 

transfer or release federally 

obligated land is dependent on 

either the type of conveyance 

agreement governing the use of 

federal property or the grant 

agreement providing for land 

acquisition with federal financial 

assistance. Congress authorizes 

the use of both federal surplus and 

federally owned property for airport 

purposes. Procedures for the 

release or transfer of federal 

property can vary based upon the 

applicable statute and federal 

agency involved. In certain cases, 

the release of federally conveyed 

land requires Congressional action. 

Recently the FAA revised its Order 

5190.6B, Compliance 

Requirements in an effort to 

document the process for releasing 

the various types of federal surplus 

and owned property. FAA routinely 

provides assistance to airport 

sponsors seeking to release 

property owned by other federal 

agencies. FAA acknowledges that 

release of land acquired with 

federal assistance for noise 

compatibility purposes may be a 

more cumbersome process. Airport 

sponsors are required to develop 

noise re-use plans and release land 

N N Y
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at fair market value no longer 

needed for noise compatibility 

purposes. FAA developed these 

procedures as a result of an OIG 

audit. FAA is willing to consider 

revising these procedures subject to 

OIG concurrence. FAA will meet 

with ACI-NA to discuss their specific 

concerns.

14 C.F.R. part 

93

FAA Amend the High Density Rule (HDR) in part 93 subparts K 

and S to increase competitive options at DCA and LGA

Air Carrier 

Association

Congress currently is considering 

several options for exemptions to 

the HDR at DCA in the FAA 

Reauthorization bill. Part 93 

currently places operational limits 

only on DCA, and the operational 

environment at DCA has not 

changed since the limits were 

imposed. The FAA also is 

considering rulemaking to address 

congestion management and 

competition issues at LGA, JFK, 

and EWR, which currently are 

limited by FAA Orders.

N N Y

Manual of 

Uniform Traffic 

Control 

Devices 

(MUTCD) 

Engineering 

Judgments and 

Compliance 

Dates

FHWA There are five (5) specific areas of concern, four (4) of 

them collectively would have FHWA revise MUTCD 

provisions and rules so that a state or local agency could 

exercise “engineering judgment” with respect to the 

application in the field of standards in the MUTCD. State 

and local agencies clearly had such authority under prior 

versions of the MUTCD. Flexibility granted to states & 

local agencies to use "engineering judgment" in the field 

has been significantly reduced in the 2009 version from 

previous versions of the MUTCD. 

The fifth recommendation is that FHWA reverse its recent 

trend of imposing more and more specific compliance dates 

for requirements that will subject states to increased cost 

without necessarily improving safety.. FHWA must make 

American 

Association of 

State Highway 

and 

Transporation 

Officials 

(AASHTO), 

General 

Contractors 

Assn of NY

The FHWA received public 

comment on the 2009 MUTCD 

changes to the definition of 

“Standard” and the use of 

engineering judgment in the 

application of traffic control 

devices. The FHWA agrees that 

the changes in the 2009 version of 

the MUTCD have created confusion 

among users and has initiated a 

rulemaking to reexamine the 

definitions within the regulation to 

provide clarity and necessary 

flexibility. The FHWA does not 

anticipate that a rulemaking in this 

N N Y
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changes to the MUTCD to allow state and local agencies to 

replace signs and devices when they wear out, not before 

the end of their useful lives.

Standards in the 2009 MUTCD are significantly more 

prescriptive than in prior versions, which can lead to excess 

costs for state/local/private entities. Examples of 

problematic requirements include: 

• Resizing of overhead sign structures to handle 

questionable message modifications;

• Increasing the number of studies prior to changes in 

horizontal curve warning signs;

• Creation of miscellaneous regulatory sign requirements 

(e.g., "Higher Fines" sign/plaque);

• Adaption of new procedures for the evaluation and 

measurement of sign retro-reflectance and, 

subsequently, meet minimum values.

area would have substantial effects 

on State, local, or tribal 

governments.

The FHWA received substantial 

public comment on changes to the 

2009 MUTCD and the compliance 

dates for incorporating these new or 

changed requirements. The FHWA 

agrees that the many compliance 

dates in the MUTCD creates a 

burden on State and local users of 

the MUTCD and that decisions 

about the application and 

replacement of traffic control 

devices are best made by State and 

local users based on the average 

service life of the device. The 

FHWA has initiated a rulemaking to 

reexamine its existing regulation to 

provide clarity and flexibility to 

MUTCD users by reevaluating the 

compliance dates requirements in 

the MUTCD. The FHWA 

anticipates that any changes 

proposed in this rulemaking will not 

require the expenditure of funds, 

but rather will provide State and 

local governments with the flexibility 

to allocate scarce financial 

resources based on local conditions 

and the useful service life of its 

traffic control devices.

23 CFR Part 

668, 

Emergency 

Relief

FHWA The FHWA Emergency Relief (ER) program, administered 

by USDOT, and the FEMA assistance program, 

administered by US Department of Homeland Security, are 

both set up to assist in road repair after a flood. However, 

the two federal entities have differences in terminology, 

AASHTO The FHWA initiated a rulemaking in 

late 2010 to update and revise the 

Emergency Relief Program. As part 

of the development of this 

rulemaking, FHWA will investigate 

N N Y
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organization, process, funding and eligibility, all of which 

leads to confusion, frustration, and loss of funding by 

township, county and state governments.

An alignment of goals and process between the two federal 

entities would be extremely beneficial.

Examples of these inconsistencies include the following:

• TERMINOLOGY: Force Account as defined by FHWA 

is when a governmental entity does the flood repair 

work with its own forces and Davis Bacon Wage Rates 

do not apply. Force Account as defined by FEMA is 

when a contractor is hired and they must use Davis 

Bacon Wage Rates and specific FEMA equipment 

rates.

• FUNDING: In order to be eligible for ER funding, a site 

must have a minimum of $5,000 in damages. In order 

to be eligible for FEMA funding, there is no minimum 

amount, but the government entity receives a minimum 

amount of $60,000.

• ELIGIBILITY: ER does not pay for the repair of soft 

spots due to frost heave; FEMA does pay for repair of 

soft spots due to frost heave.

In addition to the above, two separate teams of inspectors 

go to each county, one from FHWA and one from FEMA. 

Both gather information regarding the highway damage. 

Most county highway staffs are confused by the conflicting 

documentation requirements and processes. FHWA is 

looking for estimates of expenses in order to request 

federal authorization, which may come next year and is 

reimbursed through the state Department of Transportation; 

FEMA is looking for receipts and actual expenses in order 

to immediately process payments directly to the County.

the merits of this comment to 

determine what, if any, changes 

might be proposed in the NPRM, 

and the extent to which additional 

consultation with FEMA may be 

necessary. The FHWA anticipates 

publication of the NPRM by the end 

of 2011.

49 CFR 383.31 FMCSA The ATA believes FMCSA should rescind its requirement 

that CDL holders convicted of violating traffic laws in a 

State other than the one that issued the CDL, notify the 

American 

Trucking 

Associations 

The FMCSA acknowledges the 

ATA’s concerns given that 49 CFR 

384.209 requires the licensing 

Y Y N
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State that issued the CDL of those violations. (ATA) agency for the State in which the 

conviction took place to notify the 

State licensing Agency that issued 

the CDL. Both sections 383.31 and 

384.209 require that the 

notifications take place within 30 

days of the conviction. 

FMCSA will consider whether it is 

necessary to retain the requirement 

for drivers to self-report out-of-state 

convictions. A rulemaking to 

rescind the requirement would 

reduce the paperwork burden on 

CDL holders without decreasing 

safety.

449 CFR 

395.1(g)

FMCSA The ATA noted that the statutory exemption from the HOS 

requirements provided for certain motor carriers 

transporting grapes in New York expired on September 30, 

2009, and that the implementing regulation under 49 CFR 

395 should be removed.

ATA The FMCSA agrees with the ATA 

recommendation and will remove 

the outdated language. The 

rulemaking would not have any 

impact on safety because the 

regulatory relief provided by the 

statutory exemption has expired 

and the carriers transporting grapes 

have been required to operate 

without the exemption since 2009.

N N N

49 CFR Part 

395

FMCSA Requests FMCSA address hours of service conflicts for 

railroad signal employees.

Association of 

American 

Railroads

(Public 

meeting 

comment – no 

docket 

submission)

FMCSA will soon issue a final rule 

to codify the statutory exemption 

provided by the Rail Safety 

Improvement Act of 2008 (RSIA of 

2008). The Act provides that 

employees of railroad contractors 

and subcontractors who are 

engaged in installing, repairing, or 

maintaining signal systems are now 

governed exclusively by the HOS 

laws administered by FRA. 

Y Y N
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FMCSA has issued a final rule to 

codify the statutory exemption 

provided by the RSIA of 2008. 

49 CFR Part 

395

FMCSA Union Pacific requested that FMCSA amend its emergency 

relief provision under 49 CFR 390.23 so that railroad 

workers who are responding to emergencies such as 

derailments be included under the relief from the HOS 

rules.

Union Pacific 

Railroad

The FMCSA acknowledges Union 

Pacific’s concerns. In 2007 and 

2008, FMCSA officials met with 

representatives of the Emergency 

Rail Service Restoration Coalition to 

discuss the applicability of the 

Federal Motor Carrier Safety 

Regulations (FMCSRs) to operators 

of commercial motor vehicles 

(CMVs) responding to assist at train 

derailment sites. 

The FMCSA continues to believe 

that its current regulations include 

appropriate relief for workers 

engaged in certain derailment 

recovery activities. The FMCSA 

does not plan to take any regulatory 

action on this issue.

Y Y N

49 CFR 383.31 FMCSA Ocean Carrier Equipment Management Association 

(OCEMA) petition concerning Intermodal Equipment 

Providers’ Maintenance Responsibilities. (ATA)

FMCSA FMCSA has granted a petition for 

rulemaking from the industry and 

the rulemaking team has drafted the 

NPRM. The rulemaking would 

relieve carriers of the responsibility 

to prepare and submit to the IEP 

driver vehicle inspection reports 

when there are no defects or 

mechanical problems noted by the 

driver. Drivers would still be 

required to submit reports anytime 

there are safety problems with the 

chassis, and IEPs would still be 

Y Y N
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required to take appropriate action 

when problems are reported. 

49 CFR Parts 

390, 391, 395 

and 396

FMCSA ATA and some of its key members have expressed an 

interest in the use of electronic signatures. However, the 

current safety regulations require traditional signatures.

FMCSA Electronic Signatures (ESignatures) -- This NPRM would be 

a follow-up to our recently issued 

regulatory guidance concerning esignatures by amending various 

sections of the FMCSRs to enable 

the use of e-signatures in support of 

electronic recordkeeping options. 

These options 

would provide significant paperwork 

reductions and be less burdensome 

to the industry than the paper 

records we currently require.

Y Y N

49 CFR Part 

369

FMCSA With the elimination of the Interstate Commerce 

Commission in 1995, certain functions were transferred to 

the Department of Transportation. This includes the Form 

M financial reporting requirement for certain for-hire motor 

carriers of property. The requirement provides no 

discernible benefits to the government or the industry. 

FMCSA The FMCSA would rescind the 

requirement for certain for-hire 

motor carriers of property to file the 

annual Form M concerning their 

revenues, profits and losses. As a 

holdover from the ICC, the Agency 

currently requires this form 

annually, but does not use it for 

data purposes. This burden can be 

removed. 

Y Y N

49 CFR Part 

393

FMCSA The FMCSA received a petition for rulemaking to amend its 

brake system requirements for commercial motor vehicles. 

The rulemaking would allow carriers to disconnect the 

brakes on the last axle of a truck tractor being transported 

as the 3rd unit in a saddlemount arrangement.

FMCSA The FMCSA has published a NPRM 

to address the petition. The rule 

currently requires that these brakes 

be operable, which can actually 

create safety concerns and is a 

burden on industry. This change is 

something the industry requested 

based on test track data that proves 

Y N N
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the change would not have an 

adverse impact on safety.

49 CFR Part 

383

FMCSA Commercial Driver’s License (CDL) Testing and CDL 

Learner’s Permit Standards – Strengthening existing 

rules.

FMCSA In May 2011, FMCSA issued a final 

rule to establish revisions to the 

CDL knowledge and skills testing 

standards required by sec. 4019 of 

TEA-21, and new minimum Federal 

standards for States to issue 

commercial learner’s permits 

(CLPs) based in part on sec. 4122 

of SAFETEA-LU.

The final rule establishes the 

minimum information that must be 

on the CLP document and the 

electronic driver’s record. It also 

establishes maximum issuance and 

renewal periods, a minimum age 

limit, address issues related to a 

driver’s State of domicile, and 

incorporate previous regulatory 

guidance into the regulations.

Finally, the rulemaking addresses 

OIG recommendations, referenced 

in sec. 703 of the SAFE Port Act, to 

detect and prevent fraudulent 

testing and licensing activity in the 

CDL program.

49 CFR Part 

229

FRA The Association of American Railroads (AAR) suggests 

that FRA adopt a performance standard in lieu of the daily 

and 92-day periodic inspections that FRA requires for 

locomotives. AAR notes that Canada does not require 

daily or periodic inspections and there is no significant 

difference between railroad operations in Canada and the 

AAR FRA is currently engaged in a 

rulemaking proceeding dealing with 

the revision of the Locomotive 

Safety Standards. A notice of 

proposed rulemaking (NPRM) in the 

matter was published on January 

Y Y N
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U.S. 12, 2011, RIN 2130-AC16, 76 FR 

2200. The NPRM specifically seeks 

comment regarding an extension of 

the periodic inspection of 

locomotives with electronic and selfdiagnostic equipment. FRA will 

consider AAR’s suggestion when 

developing the final rule. 

If FRA decides to extend the 

interval between the periodic 

inspection from 92 days to 184 days 

in response to the AAR’s 

suggestion, the revisions would 

reduce the regulatory burden on the 

rail industry and result in cost 

savings of up to $42 million a year 

for locomotive downtime (assuming 

that an hour of locomotive time is 

worth $100 and that the locomotive 

would be otherwise in service) and 

$17.8 million per year for 

maintenance shop employee 

wages. The subject of both daily 

and periodic locomotive inspections 

was raised and considered by the 

Railroad Safety Advisory 

Committee (RSAC) Working Group 

when developing the NPRM. In 

fact, the Working Group could not 

reach consensus on modifying the 

existing inspection requirements. 

Moreover, the railroads represented 

at those meetings asserted that 

they would rather retain the daily 

inspection requirements for relief in 

the area of periodic inspections. 
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AAR notes that it filed a waiver 

petition in 2002 regarding this 

subject. However, that waiver 

petition was in abeyance beginning 

in 2004 at AAR’s request based on 

its desire to work with FRA to 

develop performance standards 

related to these inspections. No 

agreement could be reached on the 

issue, and the waiver petition was 

considered closed.

AAR also contends that Canada 

does not require daily or periodic 

inspections. While this is 

technically true, Canada does 

require safety inspections of 

locomotives before they are placed 

in service, every 45 days and when 

they are at various Safety 

Inspection Locations. Thus, 

Canada does require frequent 

inspections of locomotives.

49 CFR Part 

229

FRA AAR claims that several courts have misinterpreted FRA’s 

regulatory requirement related to diesel exhaust, section 

229.43. 

AAR FRA is currently engaged in a 

rulemaking proceeding dealing with 

the revision of the Locomotive 

Safety Standards. An NPRM in the 

matter was published on January 

12, 2011, RIN 2130-AC16, 76 FR 

2200.

The subject of diesel exhaust was 

not raised by AAR or any other 

RSAC participant during the 

development of the NPRM.

AAR has submitted comments on 

N N N
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the NPRM that raise this issue. 

FRA believes that the issue is 

outside of the scope of the current 

Locomotive Safety Standards 

rulemaking proceeding, but intends 

to discuss the issue in the preamble 

to the final rule.

49 CFR Part 40 FRA Union Pacific Railroad (UP) believes that an electronic 

recordkeeping option should be available for various 

recordkeeping requirements found at 49 CFR §§ 45 and 

225. 

UP The Office of Drug and Alcohol 

Policy and Compliance (ODAPC) in 

OST has been informed of the 

above UP comments and has 

already submitted a response 

addressing them. 

49 CFR § 40.45 refers to the 

Federal Custody and Control Form 

(CCF). The CCF is owned by the 

HHS and adopted by DOT for its 

drug testing program. HHS is 

working with OMB and the Federal 

Agencies to develop an electronic 

version of the CCF.

40.225 refers to the DOT Alcohol 

Testing Form (ATF). Once HHS 

develops the electronic CCF, DOT 

intends to develop an electronic 

ATF by incorporating standards 

from the electronic CCF.

Y Y N

National 

Environmental 

Policy Act 

(NEPA)

FRA FRA is not authorized to accept NEPA documents prepared 

by FTA or FHWA, and it would be prudent and timelier if 

FRA could accept these documents as fulfilling FRA’s 

NEPA responsibilities. 

North Carolina 

Department of 

Transportation

FRA’s ability to rely on NEPA 

documents prepared by other DOT 

modal administrations varies 

depending on the type of document. 

The Council on Environmental 

Quality (CEQ) NEPA regulations 

N Y Y
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outline the process of adoption of 

environmental impact statements 

(EIS) when the adopting agency 

was not a part of the preparation of 

the initial EIS. See 40 CFR 1506.3. 

FRA does not have the authority to 

alter these requirements. However, 

FRA has successfully used this 

process to adopt several EISs 

prepared by other agencies. Given 

FRA’s expanded responsibilities in 

implementing high-speed and 

intercity passenger rail projects, it 

will be important for FRA to 

participate as a joint lead or 

cooperating agency with other 

modal administrations or agencies 

where it is likely that FRA will have 

an action with respect to the 

covered project. FRA is 

coordinating with other DOT modal 

administrations on this effort. 

FRA can and does rely on 

environmental assessments (EA) 

prepared by other agencies that 

meet FRA’s NEPA requirements. In 

these situations, FRA is able to 

issue its own Finding of No 

Significant Impact based upon the 

EA. If the EA is missing something 

essential for FRA (e.g., a general 

conformity determination under the 
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Clean Air Act), that can usually be 

easily remedied through a revised 

or supplemental EA. 

FRA does not have the authority to 

use other agency’s categorical 

exclusions. Categorical exclusions 

are created by agencies based 

upon their individual experience in 

assessing and implementing 

projects that allow the agency to 

conclude that a particular category 

of actions does not typically lead to 

environmental impacts. The 

Federal Highway Administration 

and the Federal Transit 

Administration have been funding 

projects for many years and thus 

have had the time to develop the 

necessary experience in project 

implementation that justifies the 

creation of their categorical 

exclusions. FRA’s funding 

programs do not have this long 

history. FRA has been working to 

update its list of categorical 

exclusions (CE) consistent with 

CEQ’s November 23, 2010 

Guidance on Establishing, Applying 

and Revising CEs. FRA has looked 

to the FHWA/FTA CEs for guidance 

in this effort. FRA also does not 

have the authority to use another 
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agency’s individual approved 

categorical exclusion determination, 

though the information assembled 

for an approved CE can serve as 

the foundation for FRA’s own 

decision either through an 

applicable FRA CE or perhaps as 

the foundation for a finding of no 

significant impact.

The key is early coordination 

among the various agencies that 

have an interest in a particular 

project to assure that each agency’s 

NEPA responsibilities are met 

through a coordinated process. 

Emergency 

Escape 

Breathing 

Apparatus, RIN 

2130-AC14, 75 

FR 61386

FRA AAR points out the Rail Safety Improvement Act of 2008 

(RSIA) mandates FRA to regulate in this area, and that the 

regulations will probably require technology that will not be 

cost beneficial.

AAR FRA is currently engaged in 

rulemaking related to this issue and 

will consider AAR’s comment in the 

proceeding. 

N N N

Locomotive 

Cranes

FRA AAR and Rail Labor believe that OSHA’s recently issued 

regulation related to cranes does not take into 

consideration the unique scenarios encountered by the 

railroad industry. 

AAR, Rail 

Labor

FRA is considering a rulemaking 

effort in coordination with OSHA 

that would propose to bring the 

training and qualification of 

locomotive crane operators under 

FRA jurisdiction.

N N N

Dark Territory 

Technologies

FRA AAR points out that RSIA mandates FRA to regulate in this 

area, and that the regulations will probably require 

technology that will not be cost beneficial.

AAR FRA is currently considering 

different avenues for making policy, 

including rulemaking, related to this 

issue with collaboration from rail 

industry representatives, including 

railroad representatives, and will 

consider AAR’s comment during its 

policy making. 

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Civil Penalties, 

RIN 2130-

AB81,

71 FR 70590,

75 FR 57598,

75 FR 75448

FRA AAR suggests that FRA’s proposal to triple the amount of 

its civil penalties is not warranted, as railroads have 

improved their safety records.

AAR FRA is currently considering the 

comments received in response to 

its proposal and will address AAR’s 

concerns.

N N N

Risk Reduction 

Program, RIN 

2130-AC11, 75 

FR 76345

FRA AAR points out that RSIA mandates FRA to regulate in this 

area, and that the regulations will probably require 

technology that will not be cost beneficial.

AAR FRA is currently engaged in the 

early stages of rulemaking related 

to this issue and will consider AAR’s 

comment in the proceeding. 

N N N

49 CFR Part 

213

FRA The National Railroad Passenger Corporation (Amtrak) 

states that regulations governing high-speed track are 

duplicative and overlapping. Amtrak notes that one set of 

regulations for track Class 8 governs speeds from 125 mph 

up to 160 mph, and yet another provision in this section 

states that operations at speeds above 150 mph are 

currently authorized by FRA only in conjunction with a rule 

of particular applicability (RPA) that addresses the overall 

safety of the operation as a system. Amtrak believes that 

the speed threshold for an RPA should be 160 mph, to be 

consistent with the class track speeds.

Amtrak As this issue relates to comments 

under consideration in FRA’s 

Vehicle/Track Interaction Safety 

Standards (VTI) rulemaking, FRA is 

precluded from addressing the 

specific merits of Amtrak’s comment 

as it relates to the 150 mph or 160 

mph speed range. The VTI NPRM 

was published on May 10, 2010, 

and FRA is currently considering 

the comments that were received. 

See 75 FR 25928. Yet, FRA has 

taken the initiative to develop 

generally-applicable equipment 

safety standards for these 

operations through RSAC’s 

Engineering Task Force (ETF) of 

the Passenger Safety Working 

Group. Development of such 

standards would promote regulating 

the safety of rail operations above 

150 mph through other than an 

RPA.

Amtrak is raising a general issue 

concerning the regulation of highspeed rail operations that has 

arisen in the VTI rulemaking and in 

N N N
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its RSAC high-speed passenger 

equipment safety standards 

development efforts through the 

ETF.

While FRA’s Track Safety 

Standards (49 CFR Part 213), as 

revised in 1998, provide for 

operating speeds up to 200 mph, 

FRA’s passenger equipment safety 

standards (49 CFR Part 238), 

issued in 1999, provide for 

operating speeds not exceeding 

150 mph. Hence, questions have 

arisen as to how FRA will regulate 

the safety of an entire system 

above 150 mph.

49 CFR Part 

213

FRA AAR states that the GAO just issued a report on rail 

technology that noted a common belief that FRA 

regulations are an impediment to the adoption of new track 

inspection technologies. According to the AAR, the 

concern is that these technologies are capable of detecting 

minor defects that are irrelevant from a safety perspective 

but that, once detected, must be addressed immediately 

under FRA regulations.

AAR FRA has tasked RSAC to examine 

internal rail flaw inspection 

procedures and systems, and 

recommend any necessary 

regulatory changes. The Track 

Safety Standards Working Group 

has in fact reached consensus on 

proposing modifications to the 

regulation to allow for delayed 

verification of certain possible 

internal rail defects. This 

modification proposal would be part 

of a broader set of recommended 

proposed changes to the regulation 

that would include new 

requirements, such as training 

requirements for rail flaw car 

detector operators. FRA is 

N N N
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currently preparing an NPRM Track 

Safety Standards: Defective Rails, 

Inspection of Rail, Inspection 

Records, Qualified Operator, Joint 

Bar Fracture Report

for issuance by mid-year. 

The AAR is seemingly referring to 

FRA’s regulations for inspecting rail 

(§ 213.113), which require that, 

once an FRA defect is identified, 

operation over the defective rail not 

be permitted unless the rail is 

replaced or specified remedial 

action is initiated under the 

supervision of a qualified track 

inspector. 

Because rail may develop internal 

defects that often cannot be 

detected through visual 

observation, rail flaw technology is 

employed to inspect for internal 

defects; indeed, the more capable 

the technology is of detecting 

internal rail defects, the more likely 

the requirements of FRA’s 

regulation will be implicated. 

However, while a “minor” rail defect 

must be “addressed immediately,” 

FRA does not require that it be 

“repaired immediately.” In fact, the 

most permissive remedial action 

provisions currently in place would 

ostensibly apply to such “minor” 

defects, including allowing for the 

rail to remain in service for an 
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extended period. 

Nonetheless, the regulations do 

effectively require that once a 

possible internal rail defect is 

identified through a rail flaw 

detector, the railroad must verify 

whether the defect actually exists 

“immediately,” i.e., before resuming 

normal train operations over the rail 

segment. This is the root of the 

AAR’s concern, and FRA does 

understand this concern. 

FRA does recognize that under 

appropriate safeguards, it should be 

permissible for a railroad to delay 

verification of a possible internal rail 

defect. FRA has in fact granted two 

waivers—one to CSX, and one to 

NS—to delay verification of certain 

internal rail defects as part of a pilot 

program. The pilot programs are 

testing methodologies that FRA 

anticipates could reduce industry 

cost related to verification. If the 

results show potential for reducing 

industry cost and maintaining rail 

safety, FRA would entertain the 

possibility of engaging in a 

rulemaking that would permit the 

methodology industry-wide. 

49 CFR Part 

236

FRA AAR claims that the recently promulgated positive train 

control (PTC) regulation is far too expensive. FRA’s 

economic analysis concluded that the costs outweigh the 

benefits 20 to 1.

AAR FRA is in the early stages of 

preparing an NPRM related to PTC 

that will address AAR’s concerns. 

Specifically, FRA plans to propose 

N N N
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the removal of two qualifying tests. 

As a result, substantial cost savings 

would accrue largely from not 

installing PTC system wayside 

components along approximately 

10,000 miles of track. Some of 

these lines would have qualified for 

exemption by passing the two tests 

contained in the 2010 PTC final 

rule, while others may not have. 

FRA preliminarily estimates a 20-

year cost savings from eliminating 

the two tests to total between 

$600M (discounted at 7%) and 

$800M (discounted at 3%) and 

taking into account maintenance 

savings as well. See also the 

discussion in the next entry. 

49 CFR Part 

236

FRA Metropolitan Transportation Authority (MTA) urges FRA to 

re-examine the impact of PTC. In addition, MTA believes 

FRA should address technical changes that affect PTC.

MTA As noted above FRA will be issuing 

an NPRM proposing to eliminate 

FRA is working on two NPRMs 

related to PTC. The first NPRM will 

address alternate route and residual 

risk testing requirements from the 

rule. FRA estimates that the NPRM 

will publish on 9/11/2011. See the 

response above for discussion of 

potential cost savings for these 

proposed changes.

The second NPRM will address 

other issues related to the PTC rule, 

including issues raised by AAR in a 

petition filed April 26, 2011. 

Comments related to technical 

changes would be appropriate in 

response to the second NPRM. 

N N N
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FRA is in the early stages of the 

rulemaking and does not have an 

estimated day for publication. 

49 CFR Part 

238

FRA SRC believes that the crashworthiness standards in Part 

238 are detrimental to the use and growth of passenger rail 

transportation. According to SRC, the regulation assumes 

wrecks to be commonplace, which has not been the case, 

acts to curtail the export of passenger rail equipment to 

other countries, and results in prohibitive capital costs for 

passenger rail expansion and startup in the U.S. SRC 

states that with the advent of PTC, perhaps the regulation 

could be revised to enable passenger rail equipment to 

compete more effectively with other modes of 

transportation.

SRC FRA’s regulatory approach to 

passenger equipment safety is 

balanced and does incorporate both 

crash avoidance and 

crashworthiness measures. FRA 

necessarily considers the safety of 

the rail system as a whole, 

beginning with ways first to avoid an 

accident, such as through 

adherence to standards for railroad 

signal and operating systems (to 

avoid a collision) and railroad track 

(to avoid a derailment). Yet, FRA is 

indeed concerned about mitigating 

the consequences of an accident, 

should one occur, and 

crashworthiness features are an 

essential complement to crash 

avoidance measures in providing 

for the overall safety of the rail 

system.

FRA has tailored the application of 

its crashworthiness standards. See 

49 CFR 238 Subpart C, and § 

229.141. SRC itself notes that, as a 

tourist railroad, it is exempt from the 

crashworthiness standards.

Similarly, FRA has established a 

policy to issue waivers under 

appropriate circumstances to help 

limit the impact of these standards 

on light rail equipment that shares 

use of trackage or rights-of-way 

with conventional rail equipment 

N N N
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(see appendix A to 49 CFR part 

211).

FRA has also continued to explore 

means of making its standards 

more performance-based. FRA has 

developed guidelines through the 

RSAC process for waiver approval 

to use alternative, performancebased crashworthiness standards 

for passenger equipment operating 

at speeds up to 125 mph. FRA is 

pursuing a similar approach through 

the RSAC process to develop 

standards for passenger rail 

equipment operating at speeds up 

to 220 mph. 

FRA’s intent has been to develop a 

set of standards in the alternative to 

FRA’s structural and occupant 

protection requirements for railroad 

passenger equipment operating at 

speeds up to 125 mph that would 

provide the same level of safety and 

yet be more performance based 

and more technology and design 

neutral. Consequently, FRA does 

anticipate that the alternative 

standards will provide a benefit to 

the industry to the extent regulated 

entities take advantage of the 

additional flexibility.

49 CFR Part FRA UP does not believe there is a safety justification for FRA’s 

requirement that the letter “F” be displayed on each 

locomotive to identify the front end.

UP FRA is currently engaged in a 

rulemaking proceeding dealing with 

the revision of the Locomotive 

N N N
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229 Safety Standards. An NPRM in the 

matter was published on January 

12, 2011, RIN 2130-AC16, 76 FR 

2200. The subject of the letter “F” 

requirement was not raised by UP 

or any other RSAC participant 

during the development of the 

NPRM, but to the extent 

practicable, FRA will consider UP’s 

suggestion as a late comment to 

the NPRM in developing the final 

rule. 

The letter “F” requirement is related 

to safety, because it identifies not 

only the front end of the locomotive, 

but also identifies all of the 

locomotives equipment (e.g., wheel 

R1 is the first wheel on the right 

side of the locomotive counting from 

the front end). The identification 

facilitates recordkeeping related to 

equipment history. For example, if 

an inspection finds that wheel R1 is 

slightly worn out, but not defective, 

the railroad can note the condition 

for the next inspection. At the next 

inspection wheel R1 may be 

defective. 

49 CFR Part 

227

FRA SRC urges FRA to continue the current exemption to the 

Occupational Noise Exposure rule, 49 CFR 227.3, for 

tourist, scenic, historic, or excursion operations.

SRC FRA agrees that the exemption is 

appropriate and plans to keep the 

existing exemption in the regulation.

Y N N

23 CFR 771.11 FTA The use of Categorical Exclusions should be expanded. America Bikes 

, APTA, MTA 

and others

FTA agrees that the categorical 

exclusion (CE) list should be 

expanded and will work through the 

DOT NEPA Working Group to 

N N Y
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address this issue. 

23 CFR 

771.117

FTA Under current regulations [771.117(c)(3)], bicycle and 

pedestrian lanes, paths and facilities are listed as not 

requiring additional NEPA documentation or FHWA 

approval, yet many states require environmental studies 

and most require project sponsors to fill out multipage 

forms requiring sign-offs from numerous agencies to 

document they qualify for the categorical exclusion. This 

self‐imposed regulatory burden leads to substantial project 

delays and increased project costs.

America Bikes FTA intends to revise the 

categorical exclusions that apply to 

FTA-funded projects with an aim 

toward making them clearer and 

applicable in more circumstances, 

and will work through the DOT 

NEPA Working Group to address 

this issue. However, State 

requirements cannot be ignored.

N N Y

49 CFR 611 FTA MTA and APTA suggest that FT A relax requirements for 

agencies that utilize independent contractors to perform a 

formal multi-layered risk assessment for major capital 

projects. Risk assessment, although not dictated by any 

regulatory provision, often serves as an impediment to 

efficient project management by unnecessarily delaying 

projects. DOT should amend its practices under 49 CFR 

611 to specifically allow for locally developed risk 

assessment tools that account for local conditions more 

effectively than those developed by FTA and to specifically 

allow for relaxed requirements where project sponsors 

employ independent contractors to assess risk in their 

major capital projects.

MTA, APTA FTA is in the process of reviewing 

its risk assessment process on 

transit projects and developing 

options to streamline the process. 

Among the options being 

considered is to give credit to transit 

agencies that have in-house risk 

assessment tools/processes that 

they apply to their projects or use 

independent contractors in 

performing risk assessment on their 

projects.

N N Y

FTA Suggestions for improving the New Starts program include: 

preserving and expanding affordable housing near transit 

stations through incentives; amending the regulations to 

achieve livability principles; incorporating new rating factors 

and criteria; and siting transit projects near existing 

subsidized housing developments

National 

Housing 

Conference, 

Reconnecting 

America

FTA published an Advance Notice 

of Proposed Rulemaking in June 

2010 and is preparing to publish a 

Notice of Proposed Rulemaking. 

Commenters to the RRR process 

are urged to comment on the 

upcoming rulemaking.

N N Y

46 C.F.R. Part 

221

Foreign 

Transfers

MARAD This regulation sets forth the procedure for transferring 

U.S.-flag vessels to a foreign-flag registry. 

MARAD has discussed with the EPA the need for selfcertification by vessel owners that certain toxic substances 

are not present on vessels to be transferred to a foreignflag. The revised regulation would also review the current 

procedure for transfers to determine if it is the best 

MARAD N N N
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procedure.

46 C.F.R. Part 

309

War Risk Ship 

Valuation

MARAD MARAD has determined that these regulations are very 

outdated, as they refer to a Ship Valuation Committee that 

no longer exists and specify methods for valuation that are 

not being used by MARAD. 

Part 390 sets forth the procedure for how the value of a

vessel that is lost during support of military efforts would be 

determined. 

MARAD N N N

(Proposed) 46 

C.F.R. Part 341 

Transportation 

Priority 

Allocation 

System (TPAS)

MARAD The proposed Part 341 would ensure that, during times of 

national emergency, maritime assets, such as vessels and 

intermodal systems, are properly allocated to the most 

important needs. 

MARAD N N N

46 C.F.R. Parts 

251, 252, 276, 

280, 281,282, 

and 283.

Operating 

Differential 

Subsidy (ODS) 

and 

Construction 

Differential 

Subsidy (CDS)

MARAD ODS and CDS programs have long since expired. 

Revision or deletion will eliminate any confusion on the part 

of the general public as to the status of these programs. 

The ODS and CDS Programs were subsidy programs for 

U.S.-flag vessel operators rendered obsolete by the 

benefits provided by the Maritime Security Program.

MARAD N N N

46 C.F.R. Part 

327

Administrative 

Claims

MARAD The rationale for amending this part is to clearly state the 

procedures for filing an administrative claim against the 

Maritime Administration. 

Part 327 provides the mechanism for filing Administrative 

claims against the Maritime Administration. An example of 

a claim that would be covered under this regulation would 

be a personal injury claim from a contractor or visitor to a 

MARAD vessel.

MARAD N N N
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Safety on 

Garbage 

Trucks

NHTSA Rear Visibility - Why in the heck has rear-view cameras not 

been mandated on Garbage Trucks? In California, the law 

states that they are only required on all Newly purchased 

Garbage trucks, after January of 2010. Why is it not 

required on existing trucks? Is a life not worth $2000 or 

less? Do you realize how many people/children have been 

killed by garbage trucks backing up? Children have a 

fascination with them. Your stupid law on back up alarms 

only attracts them. They don't know what that means. I 

have many relatives in the Garbage Industry that feel like 

they are playing Russian Ru-let. Their bosses tell them that 

even though they have a camera that is broken on their 

vehicle, it's not required by LAW and it's just a "Luxury". Is 

your child's life a Luxury? What the heck is going on with 

you people? Sitting at a desk pushing a pencil does not 

save lives. Do you not read? PLEASE, PLEASE, PLEASE 

do something about this, not just for the children, but for the 

poor Garbage man sitting in Jail because his boss wouldn't 

fix the Camera and he has to live with this for the rest of his 

life. After all even though they drive and back up every day, 

it was just a "Luxury".

Individual -

Ideascale

NHTSA is currently conducting 

rulemaking in the area of improved 

rear visibility. We will address this 

comment in the context of that 

rulemaking which we expect to 

publish a final rule by December 31, 

2011.

N N N

Open data for 

Safety & 

Innovation in 

Cars 

NHTSA If we required carmakers to make much more sensor data 

read-only and accessible through the Onboard Diagnostic 

unit, innovators could develop all sorts of powerful tools. 

Car owners could opt in to give anonym zed data to 

manufacturers who could spot weird car behavior early.

Individual -

Ideascale

In August 2006, NHTSA issued a 

regulation to establish uniform 

performance requirements for event 

data recorders (EDRs) voluntarily 

installed in light passenger 

vehicles. The agency’s focus in 

promulgating this regulation was to 

aid in the investigation into the 

causes of crashes and injuries. As 

N N N
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vehicle electronics and sensors 

become ever increasingly 

sophisticated, the agency will 

consider if these data should be 

captured by EDRs. NHTSA plans 

to propose mandatory EDRs in all 

passenger vehicles in 2011. 

FMVSS 126, 

Electronic 

Stability 

Control for light 

vehicles

NHTSA Major rule based on effectiveness estimates from a small 

number of vehicles. Re-examination of effectiveness using 

a broader group of vehicles and much more data. (CY 

2011)

NHTSA N N N

FMVSS 201, 

Upper Interior 

padding

NHTSA Examine the effectiveness of a major rule requiring padding 

or plastic coverings on A-pillars, and other upper interior 

components. (CY 2011)

NHTSA N N N

FMVSS 138, 

TPMS survey 

of tire 

pressures

NHTSA Major rule required by Congress even though NHTSA 

analyses did not show it to be cost effective (CY 2012)

NHTSA N N N

FMVSS 208, 

Advanced Air 

Bags

NHTSA Examine effectiveness of major rule designed to stop 

children from being killed by air bags. (CY 2012)

NHTSA N N N

Fuel Economy, 

Survey of Fill 

up Times

NHTSA Examine issues related to estimating one of the benefits of 

better fuel economy. (CY 2012)

NHTSA N N N

49 CFR Part 26

DBE Program

OST FHWA, FTA, and FAA should all ask for triennial overall 

goal submission in the same year for a given recipient.

Colorado DOT It would be a good idea to 

harmonize the modal schedules, 

though this does not require a 

change in the regulation.

N N Y

49 CFR Part 26

DBE Program

OST Different modes interpret reporting requirements differently. 

This refers to the DBE program report of commitments and 

achievements.

Colorado DOT Reporting form is being modified as 

part of an NPRM currently under 

development This should address 

concerns about consistency.

N N Y

Markings, 

Incident 

Reporting, 

PHMSA 

(Hazmat)

• Marking vans that transport residue IBCs with UN 

numbers is an unnecessary burden, instead just placard 

them

American 

Trucking 

Associations

PHMSA proposed in an NPRM 

(RIN: 2137-AE46) and is developing 

a final rule that will address the IBC 

Y Y N
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Special Permits 

Fitness

• Modify the incident reporting requirements: expand 

exceptions, define spills before transportation, revise 

immediate notification due to breakage, and preempt 

states re: separate notices

• HM-233B required burdensome changes to special 

permit applications, delete the list of facilities 

requirement, delete the chief executive officer info, and 

delete the estimate of the number of shipments to be 

transported under the special permit

marking requirement. PHMSA has 

a long term goal to review existing 

incident reporting requirements. 

Additionally, the comments 

concerning HM-233B will be 

addressed in a response to appeals 

and corrections rulemaking (2137-

AE73). 

Rail Routing, 

PHMSA 

communication

PHMSA 

(Hazmat)

• Rail routing rule (Enhancing Transportation Safety for 

Hazmat - PHMSA-RSPA-2004-18730), no meaningful 

consultation occurred

National 

Conference of 

State 

Legislatures

PHMSA, FRA, and TSA have taken 

action to address this concern. In 

a February 24, 2011 letter from 

FRA to rail carriers we clarified that, 

in accordance with 49 CFR 

172.820(c)(2), railroads must 

annually solicit information from 

State, local, and tribal officials. In 

addition, we provided sample 

language for all rail carriers to use 

when soliciting information. 

N N Y

Miscellaneous 

Clarifications 

Rulemaking

(PJ-218G)

PHMSA 

(Hazmat)

The HMR must continually be updated to account for 

improved technologies and new ways of doing business, 

eliminate outdated or obsolete requirements, and clarify 

regulatory requirements experience has demonstrated are 

difficult to understand or comply with. We will propose a 

number of miscellaneous amendments to the HMR to 

eliminate, revise, clarify, and relax certain regulatory

requirements.

Corrections 

Database, 

Letters of 

Clarification, 

and Petitions

Work to develop an NPRM to 

eliminate, revise, clarify, and relax 

certain regulatory requirements.

Y N N

Miscellaneous 

Petitions 

Rulemaking 

(PJ-219)

PHMSA 

(Hazmat)

This rule would propose to incorporate into the regulations 

those petitions for rulemaking that we have accepted that 

support the regulatory review initiative. The rule will 

consider those petitions that propose only minor changes to 

the regulations for clarification, enhanced safety, or 

economic benefit with no reduction in the level of safety. 

We will look at more efficient and effective ways of 

achieving the same goal – safe and secure transportation 

of hazardous materials in commerce

Petitions Work to develop an NPRM to 

consider the adoption of existing 

petitions for rulemaking that have 

been submitted to PHMSA’s Office 

of Hazardous Materials Safety. 

Y N N
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Incorporation of 

Special Permits 

Rulemaking 

(PJ-233C)

PHMSA 

(Hazmat)

Special permits allow a company or individual to package 

or ship a hazardous material in a manner that varies from 

the regulations so long as an equivalent level of safety is 

maintained. Incorporation of special permits provides wider 

access to the regulatory flexibility offered in special permits 

and eliminates the need for numerous renewal requests, 

thus reducing paperwork burdens and facilitating 

commerce while maintaining an appropriate level of safety.

Special 

Permits

Work to develop and NPRM to 

incorporate provisions contained in 

certain widely used or longstanding 

special permits that have an 

established safety record.

Y N N

Cylinder 

Petitions and 

Special Permits 

Rulemaking

(PJ-234)

PHMSA 

(Hazmat)

The most significant of these requirements would clarify 

certain cylinder requalification methods and the 

manufacturing requirements for certain DOT specification 

cylinders that are causing confusion to industry. The 

clarifications and revisions in this rulemaking largely 

address existing requirements to reduce confusion and 

enhance compliance. 

Petitions and 

Special 

Permits

Work to develop an NPRM 

proposing to clarify a number of 

requirements applicable to the 

transportation of hazardous 

materials in cylinders. 

Y N N

Editorial 

Corrections 

Rulemaking 

(PJ-244D)

PHMSA 

(Hazmat)

This rulemaking would correct editorial errors and clarify 

current language in the HMR. The intended effect of this 

rule is to enhance the accuracy and reduce 

misunderstandings of the regulations. The amendments 

would be non-substantive changes that do not impose new 

requirements. 

Corrections 

Database

Work to develop a final rule to 

eliminate inconstancies and make 

minor editorial corrections. 

N N N

Harmonization 

with the 

Regulations of 

the 

International 

Atomic Energy 

Agency and the 

Nuclear 

Regulatory 

Commission 

(HM-250; RIN 

2137-AE38; 

Docket No.: 

PHMSA-2009-

0063)

PHMSA 

(Hazmat)

In cooperation with NRC, PHMSA is developing a 

rulemaking proposing to amend requirements in the HMR 

pertaining to the transportation of radioactive materials 

based on recent changes contained in the IAEA regulations 

(TS-R-1). The purpose of this rulemaking initiative is to 

harmonize requirements of the HMR with international 

standards for the transportation of radioactive materials. 

Additionally, we are proposing a number of amendments to 

the HMR that are intended to update, clarify, correct, or 

provide relief from certain regulatory requirements.

Domestic and 

International 

Harmonization

We had plan on publishing an 

NPRM simultaneously with NRC 

publication of its NPRM 

harmonizing NRC requirements 

with the IAEA. However, due to 

delays with the NRC companion 

rule we are moving forward without 

NRC and plan to publish in May 

2011.

Y N N

Reverse 

Logistics 

PHMSA 

(Hazmat)

We are considering whether and to what extent HMR 

requirements should continue to apply to return shipments 

Petition Work to develop an NPRM to 

provide clear requirements for 

Y N N
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Rulemaking

(PJ-253)

(customer returns to store, manufacturer, or distribution 

center). We would define the term "reverse logistics" and 

add a new section § 173.157 for general requirements and 

exceptions for "reverse logistics." The rule would establish 

clear requirements for hazardous material products being 

returned to vendors, distributors, manufacturers, or other 

persons for credit, recall or replacement.

return shipments of hazardous 

materials. 

Approval and 

Communication 

Requirements 

for the Safe 

Transportation 

of Air Bag 

Inflators, Air 

Bag Modules, 

and Seat-Belt 

Pretensioners 

(HM-254; 

2137-AE62; 

Docket No.: 

PHMSA-2010-

0201)

PHMSA 

(Hazmat)

Review air bag requirements to exclude Class 9 air bag 

inflators, air bag modules, and seat belt pretension from the 

requirement to enter the EX numbers on shipping papers.

Petition and 

Approval 

Work to develop an NPRM to 

consider regulatory relief for the 

shipment of airbag inflators, 

modules, and seat- belt

pretensioners. We plan to publish 

an NPRM in June 2011.

Y Y N

NEPA, Pipeline 

Standards, 

Brooks Act, 

Process

PHMSA 

(OPS)

• PHMSA should incorporate the following standards: 

ASTM D2513, ASTM F1948, ASTM F1973, ASTM 

F1924, ASTM F2509

National 

Society of 

Professional 

Engineers

PHMSA will review the adequacy of 

these standards for incorporation by 

reference into the PSR as part of its 

next standards update rule.

N N N
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23 CFR 

710.203 (a) (3)-

Funding and 

reimbursement; 

23 CFR 

710.307 -

Project 

agreement; 23 

CFR 

710.501(a) -

Early 

acquisition; 23 

CFR 

710.503(a) -

Protective 

buying and 

hard-ship 

acquisition; 23 

CFR 450.216 

(State 

Transportation 

Improvement 

Plan (STIP) as 

it relates to 

fiscal 

constraint).

FHWA Issue: Disruptive to project delivery. These CFR parts 

requires a state DOT to conduct advance acquisition only 

before the environmental document is complete, whether 

or not a hardship has been shown by a landowner due to 

the project. The CFRs require a state DOT to authorize an 

entire segment of the project after the environmental 

document is complete, in order to conduct acquisition. Yet 

there is often a period of time after the environmental 

documents is approved, but before design work is 

completed on every project segment. During that time

period, DOTs may not conduct acquisition on a single or a 

few parcels within a segment.

The CFRs could be amended to allow partial right-of-way 

authorization for one or all parcels within a segment, 

without the need for the DOT lo authorize the entire 

segment. Acquisitions could then be conducted between 

the time the environmental document is approved, but 

before an entire segment is authorized.

Issue: Costly, disruptive to project delivery, burdensome. 

Current federal fiscal constraint and environmental

restrictions make it difficult to strategically identify and 

preserve future transportation corridors. Until the NEPA 

process is complete and a corridor is in a fiscally 

constrained plan, federal funds can only be used to acquire 

individual parcels that meet the definition of "hardship" or 

"protective" acquisitions. These exceptions are narrow 

making it difficult to protect a continuous corridor or 

strategically acquire parcels from willing sellers until after 

the NEPA process is completed. 

We support AASHTO's recommendations to separate the 

right-of-way acquisition process from the environmental 

impact process and treat right-of-way acquisition as a 

"neutral" event from an environmental point of view. Allow 

states to use federal or state funds well in advance of 

project construction if the opportunity is there and the 

Montana DOT, 

AASHTO, 

American 

Public Works 

Association, 

Maine DOT, 

Community 

Member (Idea 

Scale)

The FHWA received 

extensive public 

comment on the issue 

of advance acquisition 

of right-of-way, most 

noting that current 

regulations make it 

difficult to identify and 

preserve potential 

future transportation 

corridors, and that 

they otherwise disrupt 

project delivery. The 

FHWA also has 

substantial experience 

dealing with States on 

this issue. While the 

FHWA is constrained 

by statutory 

requirements such as 

23 U.S.C. 108(c) and 

CEQ regulations in 

this area (40 CFR § 

1506.1), we believe 

that a reexamination 

of the regulations 

and/or guidance for 

the advance 

acquisition of right-ofway may accelerate 

project delivery and 

provide States with 

enhanced flexibility. 

Further study is 

necessary to 

determine specific 

areas for improvement 

and what, if any, 

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viability of a project would otherwise be threatened. Specify 

that entire corridors do not need to be part of a fiscally 

constrained. Long- Range Transportation Plan in order for 

corridor preservation to advance. This could generate 

overall project cost savings and reduce significant 

disruption down the road to project delivery.

AASHTO:

Current federal environmental restrictions make it 

extremely difficult to identify and preserve potential future 

transportation corridors. Until the NEPA process is 

completed for a transportation project, Federal funds can 

only be used to acquire individual parcels that meet the 

definition of “hardship” or “protective” acquisitions. 

Because these exceptions are narrow, it is difficult to 

protect a continuous corridor – or even to simply acquire 

strategic parcels from willing sellers – until after the NEPA 

process is completed for the entire project, which is not 

nearly enough time to take full advantage of the potential 

for reduced cost and reduced community disruption.

In addition, corridors must be part of a fiscally-constrained 

Long-Range Plan in order to use corridor preservation 

funds. However, due to the large size, scope, and cost of 

some corridors, State DOTs find it very difficult to include 

entire corridors in their Long-Range Plan while keeping it 

fiscally constrained. Requiring entire corridors to be 

included in a fiscally-constrained Long-Range Plan creates 

a burden for the State DOTs resulting in limited use of 

corridor preservation.

Recommendations:

1. Allow states to use Federal or state funds to acquire 

right-of-way well in advance of project construction if the 

viability of a project would otherwise be threatened. Having 

appropriate right-of-way in advance does not compel a 

project to be built—but not having the necessary right-ofway can create significant disruption and/or kill a project.

-Modify 23 CFR 710.501 and/or expand 23 CFR 710.503 

changes would be 

most beneficial. 
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to allow more flexibility for the use of federal funds “at risk” 

for corridor preservation, which could then be paid back if 

the land is not used for the anticipated project. In addition, 

modify language in 23 CFR 710.203 and 23 CFR 710.305 

to allow for the use of federal funding prior to the NEPA 

document being completed. Since this funding is “at risk” 

and will be paid back if the acquired land is not used in the 

final project, 23 USC 108(2)(c)(2)(F) could be interpreted 

broadly that actual Federal “participation” does not occur 

until after the NEPA document is complete.

2. Specify that entire corridors do not need to be part of a 

fiscally constrained Long-Range Plan in order for corridor 

preservation funds to be used.

Amend 23 CFR 710.501 (a) as follows:

Property considered as Early Acquisition are properties 

acquired after the state has included the project in the 

STIP or other early planning documents required by state 

or federal or regulation. Any property acquired prior to the 

project being included in these planning documents is 

considered to be pre-existing public right of way.

23 CFR Part 

230

FHWA COMMENT: This section of the Regulation was written in 

1976. Part 230 – External Programs needs revision in 

order to retain its original intent. Some sections of the 

regulation discuss issues that no longer exist or that do not 

have the same meaning in 2011 as they did in 1976. 

These include:

§ 230.103 Definitions.

Hometown Plan means a voluntary areawide plan which 

was developed by representatives of affected groups 

(usually labor unions, minority organizations, and 

contractors), and subsequently approved by the Office of 

Federal Contract Compliance (OFCC), for purposes of 

implementing the equal employment opportunity 

requirements pursuant to Executive Order 11246, as 

amended.

Colorado DOT 23 CFR Part 230, Civil 

Rights External 

Programs, has not 

been substantially 

updated since it was 

published in 1975.

The FHWA has been 

considering a full 

update to this Part for 

many years as 

questions and issues 

from our Division 

offices, who 

implement these 

programs, have 

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§ 230.115 Special contract requirements for “Hometown” 

or “Imposed” Plan areas.

Direct Federal and Federal-aid contracts to be performed 

in “Hometown” or “Imposed” Plan areas will incorporate the 

special provision set forth in appendix G.

Subpart C—State Highway Agency Equal Employment 

Opportunity Programs

Source: 41 FR 28270, July 9, 1976, unless otherwise 

noted. 

§ 230.305 Definitions.

COMMENT: The categories included in the definitions of 

ethnic/racial identifications have changed since these 

Regulations were first written. Census information now 

includes bi-racial categories which are not included in the 

definitions found in our Regulations.

increased in 

frequency. The 

FHWA believes that 

reexamining this Part 

will improve the 

efficiency of our Civil 

Rights external 

programs.

The FHWA intends to 

initiate the rulemaking 

process within the 

next calendar year to 

update this Part. 

Further study is 

necessary to identify 

specific areas for 

improvement and to 

determine what, if 

any, changes would 

be most beneficial.

23 CFR 

635.411, 

proprietary 

products

FHWA AASHTO, as well as a number of other organizations 

(ATSSA, ARTBA, AGC, etc.) have concerns that current 

federal regulations in 23 CFR 635.411, “Material or product 

selection,” and the current law in 23 USC 112, “Letting of 

contracts,” impose broad restrictions on the states’ ability 

to utilize proprietary methods, materials, and equipment on 

federal-aid projects and, as a result, limit the development 

of new products and discourage innovation. As currently 

regulated, proprietary products are only allowed on federalaid construction contracts under specific circumstances. 

The State DOTs’ hands are tied when trying to use these 

products because of “low-bid” requirements. Currently, a 

new proprietary product that is developed and placed on 

the market cannot easily be used in highway construction 

until a “comparable” product is produced. The inability of 

government agencies to specify a particular product which 

currently has no “equal” limits innovation by essentially 

AASHTO, 

American 

Road and 

Transportation 

Builders 

Association

Commenters have 

concerns that FHWA 

regulations governing 

proprietary products 

impose broad 

restrictions on the 

States’ ability to utilize 

proprietary methods, 

materials, and 

equipment on 

Federal-aid projects 

and, as a result, limit 

the development of ne 

w products and 

discourage innovation. 

The FHWA is 

currently in the 

N N Y
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“lowering the bar” for all products in order to artificially 

produce competition within the market. Often, engineering 

judgment in the areas of safety and technology is trumped 

by an accounting policy that is being administered acrossthe-board without consideration for potential safety 

improvements and returns on the investment.

Recommendation:

Amend 23 CFR 635.411 to allow greater flexibility for using 

proprietary products in Federal-aid contracts by allowing 

the Secretary of Transportation to approve the use of 

Federal funds in the payment of patented or proprietary 

items when the State DOT certifies, based on the 

documented analysis and professional judgment of 

qualified State transportation officials, that:

• the patented or proprietary item will provide safety, 

economic, or other benefits along one or more sections 

of roadway;

• no equally suitable alternative item exists; and

any patented or proprietary item specified pursuant to this 

certification will be available in sufficient quantity to 

complete the project identified in bid documents.

States have been prevented from using innovative 

products in federal-aid projects because of the proprietary 

products rule. Revise the regulation to allow states the 

flexibility and authority to use cutting edge technologies 

that will improve safety, durability, and performance of our 

road and bridge network

process of clarifying 

existing guidance to 

ensure competition in 

the selection of 

materials, but agrees 

that a further 

reexamination of its 

existing regulations 

and/or guidance in 

this area might 

accelerate project 

delivery and provide 

States needed 

flexibility. Further 

study is necessary to 

identify specific areas 

for improvement and 

to determine what, if 

any, changes would 

be most beneficial.

49 CFR 392.7 FMCSA The ATA believes 49 CFR 392.7 and 396.13 concerning 

driver vehicle inspections should be reviewed to eliminate 

redundancies. The ATA recommends the Agency consider 

a single pre-trip inspection requirement within 49 CFR 

396.13.

ATA The Agency agrees 

that there is a degree 

of redundancy but the 

redundancy in 

language does not 

result in an 

unnecessary 

regulatory burden on 

the industry in either 

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the actions required of 

CMV drivers or the 

information collection 

burden. 

The Agency will 

consider, as time 

permits, a careful 

review of the clarity of 

the regulatory text. 

However, a 

rulemaking on this 

issue would not result 

in a reduction in the 

information burden 

requirement.

49 CFR 

396.5(b)

FMCSA The ATA recommends that FMCSA rescind 49 CFR 

396.5(b).

ATA The Agency agrees 

that there is a degree 

of redundancy with 

the general 

maintenance 

requirements but the 

redundancy in 

language does not 

result in an 

unnecessary 

regulatory burden on 

the industry in either 

the actions required of 

CMV maintenance 

personnel or the 

information collection 

burden in CMV 

maintenance records 

required under 49 

CFR Part 396. 

The Agency will 

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consider whether the 

regulatory language 

should be revised or 

amended. However, 

the rulemaking would 

not relieve motor 

carriers of their 

maintenance 

responsibility or any 

associated information 

collection burdens for 

maintenance records. 

FMCSA/FAA Recommends clearly defining the scope of the agencies’ 

jurisdiction vis-à-vis OSHA.

Federal 

Express Corp.

(Public 

meeting 

comment –

not sent to 

docket)

The agencies are 

mindful of the need for 

clarity in defining 

regulatory jurisdiction. 

However, the Agency 

does not believe a 

rulemaking action 

would eliminate 

confusion about the 

agencies’ jurisdiction.

N N N

49 CFR Part 

236

FRA Amtrak asserts that the requirement to inspect and test 

each locomotive equipped with an automatic cab signal or 

train stop or train control device is redundant, as all that is 

needed for a daily or after trip test is a functional test to 

verify that the system is working properly. Amtrak further 

asserts that the requirement to perform a complete visual 

inspection should be moved to the periodic test provisions 

set forth in 49 CFR § 236.588.

Amtrak ATK is welcome to 

submit a rulemaking 

petition addressing 

these issues, which 

FRA would be willing 

to consider.

N N N

49 CFR Part 

238

FRA Amtrak notes that each of these sections provides an 

exception allowing long-distance intercity passenger trains 

that miss scheduled inspections and/or tests due to a delay 

en route to continue in service to the location where the 

inspection was scheduled to be performed. Amtrak 

believes that the exception should be broadened to 

encompass the root causes of en route delays, such as 

Amtrak FRA will endeavor to 

work with Amtrak to 

clarify their comment. 

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extended delays in arrival or departure, and severe 

weather conditions. 

49 CFR Part 

215

FRA UP argues that FRA’s requirement related to roller bearing 

adapters should be eliminated because wayside detectors 

can identify the amount of wear on the adapter.

UP FRA recognizes the 

potential safety value 

of the wayside 

detectors; however, 

FRA believes there 

are several concerns 

with the UP proposal: 

It is not clear that the 

detectors would catch 

all of the same defects 

that are caught by a 

visual inspection.

FRA does not 

currently have 

regulatory 

requirements related 

to these detectors. If 

FRA eliminates the 

visual brake 

inspections, there will 

be no brake 

inspection 

requirements.

It is not clear how the 

railroads would 

identify defective 

brakes, or how they 

would comply with the 

statutory requirements 

to move cars with 

defective brakes to 

the next location 

where repairs can be 

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made. 

If these concerns 

were addressed, a 

revision to the 

regulation that would 

include wayside 

detectors may be 

appropriate.

49 CFR Part 

214

FRA SRC believes that the relative risk to a lone worker is not 

ameliorated by the requirement (in 49 CFR § 214.337) for 

a lone worker to complete a written statement of on-track 

safety prior to using individual train detection to establish 

on-track safety (see SRC Comments, issue no. 5, pages 3-

4). SRC also believes that the “definitions and exemptions 

portion of Part 214” needs to be significantly reworked in 

order to contemplate the railroad operation where the 

roadmaster may also be the primary locomotive engineer 

and also the safety officer (see id.).

SRC FRA believes that the 

written statement of 

on-track safety has 

value in decreasing

the risk of death 

among lone workers. 

The reasoning behind 

this requirement, as 

expressed in the 

preamble to the final 

rule on roadway 

worker protection, is 

“to assist the roadway 

worker in focusing on 

the nature of the task, 

the risks associated 

with the task, and the 

form of on-track safety 

necessary to safely 

carry out assigned 

duties.” 61 FR 65959, 

65972-73 (Dec. 16, 

1996). Additionally, 

as discussed in FRA’s 

Technical Bulletin G05-03 (issued January 

10, 2005), the benefits 

of a lone worker 

briefing include 

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“triggering the lone 

worker to think about 

his or her on-track 

safety, providing a 

means to inform the 

railroad where the 

lone worker will be 

located during a tour 

of duty,” as well as 

“providing information 

(e.g., special 

instruction changes, 

etc.) to the lone 

worker” (emphasis 

added). Because a 

lone worker is not 

being supervised on 

site, it is very 

important to have the 

most recent 

information available 

and written down so 

as to minimize 

confusion.

Regarding SRC’s 

concerns with the 

“definitions and 

exemptions” section, it 

is difficult to address 

such concerns without 

knowing which 

definitions or which 

exemptions are at the 

heart of the concerns. 

None of the definitions 

in subpart A of part 

214 specifically 
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references a 

locomotive engineer 

or a safety officer, and 

none of the provisions 

in subpart C of part 

214 mentions a safety 

officer. While § 

214.321(c) mentions 

“a locomotive 

engineer” and § 

214.325 provides for 

the use of “train 

coordination” with a 

crew, the use of such 

terms in the rule 

would not appear to 

impact a locomotive 

engineer who is also 

serving as a safety 

officer. As such, FRA 

cannot offer any 

remedies at this time 

other than to note that 

if the concerns are 

within the scope of the 

ongoing rulemaking to 

amend the roadway 

worker protection rule, 

SRC could submit 

more specific 

comments on the 

NPRM when 

published.

49 CFR Part 

232

FRA AAR and UP argue that the intermediate brake test 

requirement should be eliminated where wheel 

temperature detectors are utilized. 

AAR, UP AAR claims that the 

detectors that are 

currently being used 

by Class I railroads 

provide more reliable 

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inspections than the 

out-dated visual 

inspections required 

by part 232.

FRA recognizes the 

potential safety value 

of the temperature 

detectors; however, 

FRA has several 

concerns with the 

proposal: 

First, it is not clear 

that the detectors 

would catch all of the 

same defects that are 

caught by a visual 

inspection.

Second, FRA does 

not currently have 

regulatory 

requirements related 

to these detectors. If 

FRA eliminates the 

visual brake 

inspections, there will 

be no brake 

inspection 

requirements.

Third, it is not clear 

how the railroads 

would identify 

defective brakes, or 

how they would 

comply with the 
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statutory requirements 

to move cars with 

defective brakes to 

the next location 

where repairs can be 

made. 

AAR and member 

railroads have 

recently raised this 

issue in waiver 

requests to FRA’s 

Safety Board. The 

Safety Board denied 

the waiver requests, 

because the requests 

failed to identify how 

the detectors would 

determine whether a 

condition recognized 

by the detector would 

be a violation under 

FRA’s regulations. 

49 CFR Part 

234

FRA SRC asserts that FRA should not consider the presence of 

an at-grade rail crossing, a bridge over a public road or 

navigable waters, or rail operations within a common 

corridor for the purpose of determining the applicability of 

FRA’s grade crossing regulations in 49 CFR Part 234 to a 

tourist rail operation. Instead, SRC contends that certain 

variables, including the specific class of road or highway, 

the amount of traffic and the danger posed by the specific 

railroad crossing to the public, should be the primary 

characteristics considered by FRA for this purpose.

SRC Generally speaking, a 

railroad will be subject 

to the requirements of 

49 CFR Part 234 if it 

is responsible for the 

maintenance and 

operation of active 

warning devices for 

highway-rail grade 

crossings that are 

located on its line. 

These requirements 

include minimum 

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maintenance, 

inspection, and testing 

standards, as well as 

reporting 

requirements and 

required actions that 

must be taken in 

response to certain 

types of grade 

crossing active 

warning system 

malfunction.

To FRA’s knowledge, 

there are very few (if

any) railroads who do 

not have any public 

highway-rail grade 

crossings on their 

lines and who would 

otherwise be 

responsible for the 

maintenance and 

operation of active 

warning devices for 

one or more private 

highway-rail grade 

crossing(s) simply 

because of an atgrade rail crossing, a 

bridge over a public 

road or navigable 

waters, or common 

corridor rail operations 

on their lines. (Also, 

generally speaking, 
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any active warning 

device that has been 

installed at a private 

highway-rail grade 

crossing would be 

covered by a 

contractual 

arrangement between 

the private landowner 

and the railroad that 

would address the 

maintenance, 

inspection, and testing 

of such warning 

device.) However, 

any railroads that may 

fall into this narrow 

category may seek 

relief through FRA’s 

waiver process set 

forth in 49 CFR Part 

211.

23 CFR part 

771

FTA Permit separate environmental reviews of related projects APTA FTA will seriously 

consider the 

suggestion to allow 

separate 

environmental reviews 

of related projects, 

and will work through 

the DOT NEPA 

Working Group to 

address this issue. 

The NEPA regulations 

of the Council on 

Environmental Quality 

intend that all 

environmental 

implications of a 

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decision be known 

before the decision is 

made. The ban on 

piecemeal review and 

approval of a project 

(also called improper 

segmentation) is the 

result. For 

metropolitan areas 

with mature transit 

systems, a more 

flexible interpretation 

of what constitutes 

improper 

segmentation may be 

appropriate, as long 

as it is consistent with 

the Council on 

Environmental Quality 

regulation and case 

law.

23 CFR part 

771

FTA DOT should allow projects to proceed beyond the 30 

percent design stage prior to issuance of environmental 

findings. Limiting projects to 30 percent design completion 

before issuance of environmental findings delays projects 

and makes them more expensive, without benefit to the 

environment. For routine projects unlikely to have 

significant environmental impacts, the 30 percent barrier 

delays work rather than allowing work to continue 

concurrently with the environmental review. 

APTA, MTA Final design of a New 

Starts project must 

await NEPA 

completion to ensure 

that all design 

elements necessary to 

avoid impacts have 

been specified. 

However, FTA 

regulations do not 

specify a fixed 

percentage of design 

at which point final 

design begins. FTA 

has the flexibility to 

allow more than 30 

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percent of design prior 

to NEPA completion if 

the transit agency has 

committed to all 

design elements 

necessary to avoid 

adverse impacts, and 

all that remains is 

concurrence by an 

outside party such as 

the State Historic 

Preservation Officer. 

FTA will work through 

the DOT NEPA 

Working Group to 

address this issue.

23 CFR part 

771

FTA Seeks multiple changes to streamline NEPA review 

process

National 

Society of 

Professional 

Engineers

FTA will work through 

the DOT NEPA 

Working Group to 

address these issues 

.It is possible that 

minor language 

changes could be 

made subject to the 

agreed-upon schedule 

for NEPA reviews.

FTA legal sufficiency 

reviews may not be at 

issue here. 

Nonetheless, FTA will 

seek means of 

ensuring that all 

reviews are 

concurrent with other 

actions so that they do 

not extend the 

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schedule.

23 CFR part 

771

FTA Streamline Other Aspects of the Environmental Review 

Process. DOT should allow a single modal administration’s 

finding under the National Environmental Policy Act 

(NEPA) to cover all modes without adoption by other 

administrations. Requiring adoption delays implementation, 

increases costs, and amounts to redundant work for project 

sponsors and DOT.

APTA, MTA, 

NPSE

Where one or more 

modal administration 

has an action that 

requires NEPA 

compliance, each 

mode must comply 

with NEPA. But FTA 

will work through the 

DOT NEPA Working 

Group to address the 

issue of delegating the 

NEPA review for any 

multimodal project 

involving more than 

one DOT modal 

Administration to one 

DOT modal 

Administration and 

that it be signed at the 

OST level for the 

entire DOT.

N N Y

23 CFR 771.11 FTA Flexibility for design/build projects. By allowing grantees to 

award CE-eligible design/build projects with federal funds 

(or pre-award authority) before the environmental finding is 

made, USDOT would facilitate grantees' ability to pursue 

non-traditional project delivery methods that help projects 

be implemented more quickly and result in cost 

efficiencies. With a design/build project, the in-house 

design needed to award a contract may not have 

progressed enough to allow for consultation with outside 

agencies (e.g., State Historic Preservation Office, Army 

Corps, etc.) which is needed for the environmental finding 

to be made and for the project to be eligible for pre-award 

authority.

APTA, MTA FTA already allows 

design-build (DB) 

contracts to be signed 

prior to NEPA 

completion when 

certain conditions are 

met: (1) the NEPA 

contractor and the DB 

contractor are 

separate; (2) the DB 

contract allows 

termination without 

penalty upon NEPA 

completion; and (3) 

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(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE SB* IC* SLT*

the DB contractor 

cannot perform final 

design of a New 

Starts project until the 

NEPA process has 

been completed. 

FTA proposes to 

publish guidance on 

this point so that grant 

applicants are more 

fully aware of it.

Guidance, 72 

FR 5788, Feb. 

7, 2007

FTA

FTA should issue updated guidance on its joint 

development policies and provide more flexibility to transit 

authorities to dispose of excess property for the purpose of 

mixed-income and affordable housing FTA can maximize 

scarce resources for both transit and affordable housing 

investments by ensuring that FTA-funded property can be 

sold, leased or donated for the purpose of mixed income 

and affordable housing development projects. Local transit 

agencies could benefit from expanded guidance and 

technical assistance related to parking replacement on joint 

development projects. Parking is commonly cited as a 

significant local challenge to implementing joint 

development projects. Therefore, FTA should consider 

providing updated guidance and best practices from the 

field on effective strategies for managing existing and 

future parking demand while advancing successful joint 

development projects.

National 

Housing 

Conference

FTA agrees with the 

commenter. FTA has 

been and will continue 

to identify barriers to 

creating compact, 

mixed-use, 

pedestrian-friendly, 

transit-oriented 

development. To this 

end, FTA intends to 

update its guidance 

on joint development. 

FTA appreciates the 

suggestions about 

specific topics to 

address in the 

updated guidance and 

will make every effort 

to include these topics 

in the guidance. 

While FTA did away 

with the requirement 

of one-to-one parking 

replacement in 2007, 

FTA recognizes the 

need to provide 

additional guidance on 

N N Y
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COMMENT

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this topic.

N/A FTA The federal regulations and policies affecting delivery of 

transportation projects are numerous and spread 

throughout the Code of Federal Regulations. FHWA has 

prepared a document, FHWA Form 1273, in which it 

assembles key federal requirements for construction 

contracts. We recommend that FHWA assemble a similar 

document for consulting engineering contracts, and that 

Federal Transit Agency and other USDOT agencies 

prepare similar documents for both consulting engineering 

and construction contracts.

American 

Public works 

Association

FTA will examine 

FHWA Form 1273 and 

determine its 

applicability to its 

operations or if the 

form could be revised 

to apply to its 

operations.

N N Y

23 CFR part 

771

FTA The development and application of programmatic 

solutions to replace project by project analysis, 

documentation and decision making supports efficient 

project delivery and environmental stewardship. While 

extensive progress has been made by states to implement

programmatic solutions, the opportunity to achieve major 

streamlining benefits by stronger promotion of 

programmatic solutions shows great promise. For example, 

programmatic criteria for categorical exclusions are often 

not broad enough to cover all undertakings with a 

demonstrated history of not having significant 

environmental impacts.

AASHTO Categorical exclusions 

(CEs) are 

programmatic 

solutions, and FTA is 

committed to 

expanding and 

improving its lists of 

CEs. FTA will will 

work through the DOT 

NEPA Working Group 

to address this issue. 

FTA is also planning 

to evaluate certain 

impacts of Federal 

transit investments 

programmatically, 

such as greenhouse 

gas emissions. In that 

way, the NEPA 

document for an 

individual transit 

project can reference 

the programmatic 

evaluation and would 

not have to perform a 

less useful, projectN N Y
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specific evaluation. 

An evaluation of a 

broad impact of transit 

investments, such as 

its impact on 

greenhouse gas 

emissions and global 

climate change, is 

more meaningful and 

more accurate at the 

programmatic level 

than at the project 

level. 

49 CFR part 

661

FTA In complying with Buy America out of Title 49 regulations, it 

is apparent that no distinction is made between vehicles 

purchased from transit specific manufacturers, chassis 

modified specifically for transit use, and vehicles 

purchased directly from auto manufacturers and placed 

into service. The regulations as applied to auto 

manufacturers need to be reviewed for the current 

methods of purchasing those vehicles as differentiated 

from vehicles purchased from transit vehicle 

manufacturers. Specifically, vans produced by auto 

manufacturers producing more than 25,000 vehicles a year 

should be allowed to be certified through a different means 

than currently provided for.

IdeaShare FTA is aware of the 

lack of distinction and 

will be examining this 

issue in Buy America 

rulemaking following 

the legislative 

reauthorization 

process.

N N Y

49 CFR 

571.121

NHTSA Suggests that the agency increase requirements in its air 

brake standard in three areas: 1) trailer ABS – require 

more axles be controlled by ABS; 2) trailer brake 

monitoring – require additional monitoring for low air brake 

pressure, parking brake status, brake adjustment and tire 

pressure monitoring; and 3) require automatic system to 

control liftable axles instead of driver control.

BENDIX The benefits of these 

additional 

requirements were not 

provided by the 

commenter. NHTSA 

is planning a review of 

FMVSS No. 121 in 

2018 and will consider 

this comment as part 

of that review.

N N N

49 CFR 

571.109

NHTSA Suggests that NHTSA delete the resistance to bead 

unseating test and strength test because they are not 

Rubber 

Manufacturers 

The Agency notes that 

bead unseating is still 

N N N
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49 CFR 

571.139

effective in evaluating modern radial tires used on light 

vehicles. 

Association 

(RMA)

a real-world tire failure 

issue and the agency 

has observed its 

occurrence during 

laboratory testing.

NHTSA agrees that a 

review of these tests 

is appropriate and has 

a regulatory review of 

FMVSS 139 

scheduled for 2013.

49 CFR 

575.104

NHTSA Requests NHTSA revise its uniform tire quality grading 

(UTQG) standards relating to tire traction, treadwear, and 

temperature requirements.

RMA Congress placed a 

condition in NHTSA’s 

1996 Appropriations 

Act that stated ‘‘none 

of the funds 

appropriated by this 

Act may be obligated 

or expended to plan, 

finalize, or implement 

any rulemaking to add 

to [the UTQGS] any 

requirement pertaining 

to a grading standard 

that is different from 

the three grading 

standards (treadwear, 

traction, and 

temperature 

resistance) already in 

effect.’’ However,

NHTSA would like to 

study further the likely 

consequences of 

discontinuing the 

temperature 

resistance rating, and 

N N N
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its continued need 

given the upgraded 

tire endurance 

requirements of 

FMVSS No. 139 

before making a 

decision about future 

UTQGS requirements.

Auto Software 

Transparency

NHTSA The key to software safety is transparency as in food or 

other consumer product labeling. You put food in your body 

and you put your body into a vehicle. You can't label auto 

software but we should have access to a website 

cataloging the source code and documentation for all 

software used in our vehicles, propietary or not. If such 

information doesn't exist in a complete and accurate form 

that should be proof enough that the software is not fit for 

public use.

Individual -

Ideascale

The National Highway 

Traffic Safety 

Administration 

(NHTSA) has initiated 

research on vehicle 

electronic control 

systems, focused on 

electronics reliability 

and cyber security. 

The initial portion of 

the program will 

review, assess, and 

synthesize relevant 

information about 

approaches, best 

practices, guidelines, 

and standards 

adopted by the 

automotive and other 

industries to ensure 

the reliability of safetycritical vehicle 

electronic systems, 

including software. 

N N N

Texting Cell 

Phone Use

NHTSA The automakers need to install a cell phone signal jammer 

(blocker) in all new autos. They should have an emergency 

button that would send out an SOS if you get in trouble

Individual -

Ideascale

Signal jammers are 

illegal under Federal 

Communications 

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(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE SB* IC* SLT*

Commission (FCC) 

regulations. However, 

there are applications 

that can be installed 

on cellular phones to 

restrict or block 

features such as voice 

calls, text, and data 

transmission while the 

vehicle is in motion. 

The National Highway 

Traffic Safety 

Administration is 

currently evaluating

these types of 

systems in a research 

program. 

Texting while 

driving, New 

Cell Phone 

Technology –

FDImobile

NHTSA (WWW.FDIDVD.COM) the new cutting edge cell phone 

technology even with the new laws, people will still be 

incline to used their cell phone for business, personal, and 

other reasons, to be able to send and receive texting, 

email, auto dialing, with follow me features with only the 

command of your voice while the driver keeps his hand on 

the wheel. FDImobile came up with this new technology 

having a insight the need for this technology to save 

people lives will be the fore front of a new revolution of 

people using their cell phone in a new safe matter with the 

idea of keeping the highway safe from distracted driver I 

believe they cover the three rules of the Law of Distraction 

visual, manual, cognitive, the driver will be able to keep 

their hand on the wheel for more information about this 

service again log onto www.fdidvd.com or hotline 618-355-

1615 (317)286-2421 looking to hear from you soon.

Individual -

Ideascale 

NHTSA is conducting 

research and 

developing Driver 

Distraction Guidelines 

for application to invehicle device tasks 

that are performed by 

the driver through 

visual-manual means. 

When that is 

complete, the agency 

will perform additional 

research studies and 

develop guidelines for 

voice interface 

systems. With 

respect to specific 

systems, the agency 

will not necessarily be 

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evaluating the 

effectiveness of one 

company’s technology 

compared to another. 

Examine 

Software for 

Vehicle Safety, 

Not Just 

Hardware

NHTSA I've been hearing from various news sources that the 

groups who are responsible for verifying the safety of 

vehicles don't have the experience and expertise to 

examine the newer electronic and computerized 

components of cars. I've read that actions are being taken 

to remedy the situation, but I've heard no mention of 

software. As cars are more and more computerized, the 

physical components will be more and more under the 

control of software. It is critical that the government require 

all car manufacturers to allow some kind of scrutiny of this 

software code. Companies are notoriously shy about letting 

people examine their software code, even when errors in 

that software could cost lives. Without looking at the 

original software code, it's like examination of a car with 

the hood welded shut.

Individual -

Ideascale

The National Highway 

Traffic Safety 

Administration 

(NHTSA) has initiated 

research on vehicle 

electronic control 

systems, focused on 

electronics reliability 

and cyber security. 

The initial portion of 

the program will 

review, assess, and 

synthesize relevant 

information about 

approaches, best 

practices, guidelines, 

and standards 

adopted by the 

automotive and other 

industries to ensure 

the reliability of safetycritical vehicle 

electronic systems, 

including software. 

N N N

Release data 

files for vehicle 

fuel economy 

and CAFE 

standards

NHTSA Making XML or CSV files containing fuel economy data for 

each model and year and data files for CAFE standards by 

year available for download would make visualizing data 

easier. If total U.S. sales for each model and year of 

vehicle could be collected from car manufacturers, it would 

make it easier to see how the average fuel economy of 

vehicles on the road was changing.

Individual -

Ideascale

NHTSA agrees that 

making fuel economy 

data available in 

Extensible Markup 

Language (XML) or 

Comma Separated 

Values (CSV) format 

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COMMENT

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http://www.fueleconomy.gov/

http://www.nhtsa.dot.gov/portal/fueleconomy.jsp

would make it easier 

for the public use the 

data. Because some 

of this information is 

proprietary and 

confidential, NHTSA 

will investigate what 

data could be added 

in one of the formats 

to the NHTSA CAFE -

Fuel Economy web 

page in the future.

49 CFR Part 

26,

DBE 

OST FHWA interprets “running tally” of DBE achievements to 

require monthly reporting. This is too often. This comment 

refers to the DBE report of commitments and 

achievements.

AASHTO The DBE reporting 

requirement in 

question is now being 

considered as part of 

a rulemaking in 

progress. 

N N Y

49 CFR Part 

26,

DBE

OST Recipients have a hard time collecting bidders list 

information required by the rule, especially with respect to 

age and gross receipts of firms. This collection should be 

deleted or made optional.

AASHTO The information can 

be useful in setting 

overall goals. 

Nevertheless, the 

pending NPRM can 

ask for comments on 

the issue.

N N Y

49 CFR Part 37 

- ADA

OST Disagrees with FHWA guidance that says any resurfacing 

less than 1.5 inches does not constitute alteration calling 

for additional accessibility features (e.g., curb cuts). This 

should be on a case-by-case basis.

DREDF The guidance, which 

is in the form of an 

FHWA memorandum 

to its field offices and 

state highway 

agencies, does not 

specify the 1.5 inch 

standard for all cases, 

but rather is an 

example. Some 

clarification or further 

N N Y
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REGULATION

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COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE SB* IC* SLT*

explanation of the 

guidance might be 

helpful.

49 CFR Part 37 

- ADA

OST Concerned about difference between DOJ and DOT 

definitions of “service animal.”

Passenger 

Vessel 

Association

There are differences 

between the two 

definitions (DOT’s is 

somewhat broader) 

that can be worked 

out in guidance or in a 

future rulemaking. 

DOT is contemplating 

issuing guidance on 

this subject in 

connection with a final 

ADA rule now being 

reviewed by OMB.

Y N N

49 CFR Part 37 

- ADA

OST Concerned about difference between DOJ and DOT 

definitions of “service animal.”

Community 

member -

Ideascale

Same as response to 

PVA comment above.

Y N N

49 CFR Part 37 

- ADA

OST Concerned about a “rumor” that DOT now requires service 

past the curb, which commenter believes has serious cost 

impacts.

aclements -

Ideascale

Current rules, as 

interpreted by DOT 

2005 guidance posted 

on DOT web sites, 

require origin-todestination service for 

ADA paratransit. In 

some cases, if not 

involving a direct 

threat to safety or a 

fundamental alteration 

of service, this can 

involve service 

beyond the curb. This 

issue is under 

consideration in a 

pending rulemaking 

(RIN 2105-AD54; final 

rule stage).

N N Y
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49 CFR Part 37 

- ADA

OST Concerned about FTA interpretation of “pickup window” 

provision of paratransit rules (i.e., provider can negotiate a 

pickup time one hour to either side of time requested by 

passenger) that commenter believes allows 1 hr. 15 min. 

window rather than simply 1 hr.

pat.civilrights -

Ideascale

This provision of ADA 

rule has long been 

problematic. To 

address the issues 

successfully would 

require additional 

rulemaking, which the 

Department can 

consider.

N N Y

Special Permits 

and Approvals, 

Paperwork 

Burden, 

Fitness 

Criteria, 

Processing 

Backlog, Overreach of 49 

CFR 107.121 

Authority

PHMSA

(Hazmat)

• Failure to incorporate proven special permits hurts 

industry

• Unknown fitness criteria dismiss safety records

• Fitness procedures were implemented without any 

consideration of the costs

• Processing backlog results in lost business 

opportunities

• Flip-flop on bulk explosive trucks shows unfocused

Institute of 

Makers of 

Explosives 

PHMSA is thoroughly 

evaluating these 

issues. We have 

been working 

diligently to improve 

the efficiency of 

special permit 

application 

processing. We have 

and will continue to 

incorporate into the 

HMR those special 

permits with a proven 

safety history. 

Y N N

Incident 

Reporting

PHMSA 

(Hazmat)

• Data collection is deficient, results in unreliable data; 

needs to be simplified

• Small packages of low hazard, low risk material like 

paint are a nominal risk

American 

Coatings 

Association

PHMSA has a long 

term goal to review 

existing incident 

reporting 

requirements to 

determine if there is a 

benefit in continuing to 

require incident report 

forms for all 

transportation 

incidents involving a 

release of hazardous 

materials.

Y Y N

Approvals, 

Special 

PHMSA 

(Hazmat)

• PHMSA ignores the HMTA rule that to “issue, modify, or 

terminate a special permit (or approval) must be 

National 

Propane Gas 

PHMSA is thoroughly 

evaluating special 

Y N N
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Permits, 

Registration 

Fee

established by notice and comment rulemaking”

• What relevance a motor carrier safety rating has on a 

company’s ability to re-qualify cylinders under an 

approval

• HMEP grants program should incentivize orgs that 

positively contribute to the level of skill and knowledge

Association permit and approval 

concerns raised by 

this commenter. In 

addition, we are 

currently evaluating 

the HMEP grant 

program.

Small Quantity 

Exception and 

LPG Special 

Permits

PHMSA 

(Hazmat)

• Reconsider the “this package conforms to 49 CFR 

173.4” marking for small quantity exception

• Allow persons to continue shipping under special 

permits even if the Grantee has missed the renewal 

deadline

Kathy Rudd –

Ideascale

PHMSA will 

thoroughly evaluate 

the commenter’s 

concerns. However, 

we note that 

significant regulatory 

exceptions have been 

provided for materials 

shipped under the 

small quantity 

exception. In addition, 

special permits may 

continue to be used in 

transit provided the 

holder of the permit 

files for renewal at 

least 60 days prior to 

expiration. 

Y N N

Cylinder 

Calibration, 

Overpressure, 

CGA IBR, 

Special 

Permits, 

Training

PHMSA 

(Hazmat)

• Commenter notes that special permits may continue to 

be used if the permit holder files for renewal at least 60 

days prior to expiration (he is correct)

• Update CGA Pamphlet IBR materials

• Review cylinder calibration requirements, expansion 

tolerances, and recalibration intervals

• Online training is not sufficient to ensure that cylinder 

testers are qualified 

Chris Hinchey

– Ideascale

PHMSA is currently 

evaluating several 

petitions for 

rulemaking and 

considering a future 

rulemaking that would 

address the concerns 

expressed by this 

commenter. 

N N N

192, 195 PHMSA 

(OPS)

• Align 49 CFR 192 and 195 to follow the same 

formatting. Example: Topic in 195.428 = Topic in 

192.458. 

Dave Edward 

Yeager

PHMSA will 

continually review the 

formatting of the 

Pipeline Safety 

N N N
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Regulations (PSR) to 

ensure that it is written 

in plain language and 

easily understandable.

LNG PHMSA 

(OPS)

• More work must be done in setting guidelines for 

liquefied flammable gases storage and movement 

under objective

Ronald M. 

Thomas

PHMSA will continue 

its ongoing process to 

ensure that all of its 

regulations including 

those in Part 193 

(LNG facilities federal 

safety standards) are 

void of conflicts and 

inconsistencies. 

N N N

49 CFR 192 PHMSA 

(OPS)

• Incorporate by reference the latest version of ASTM 

D2513-09a Standard Specification for Polyethylene 

(PE) Gas Pressure Pipe, Tubing, and Fittings into 49 

CFR 192. 

• Adjust incident reporting threshold from $50,000 to 

100,000 and adjust again every 5 years.

• Revise incident definition § 191.3(1)(ii) to address fire 

first

• Align the corrosion inspection requirements of 

§192.481 with the Leak Survey corrosion requirements 

of §192.723.

• Remove the Continuing Surveillance language in 

§192.613.

• Damage prevention applies to all classes, remove 

“Class 3 or 4 locations” in line marker provisions of 

§ 192.707(b)(2)

• Align time lapse requirement for alcohol testing with 

the drug testing requirements.

• Eliminate overlapping 6 month welding requirements 

(§ 192.229(b)) and let (c) and (d) stand alone.

• Expand the exemption in 49 CFR §192.503 General 

Requirements to include short pipeline main 

replacements.

• Modify § 192.285 (c) allow for requalification to be 

American Gas 

Association 

(AGA)

PHMSA will continue 

to review the issues 

presented by the 

commenter and look 

for ways to address 

their concerns in the 

safest and most 

efficient manner 

possible.

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done annually, not to exceed 15 months,

• Allow gas utilities to design, install, and operate new 

polyethylene piping with operating capacities 

consistent with the capabilities of modern plastic 

materials without compromising safety. (0.32 to 0.4)

190.341 PHMSA 

OPS

Adopt provisions for renewal of expiring Special Permits PHMSA PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

Y N N

191.27/195.57 PHMSA 

OPS

Eliminate Offshore Pipeline Condition Report PHMSA PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N Y N

192.7 PHMSA 

OPS

IBR the 2009 edition of ASTM D2513-Standard 

Specification for Thermoplastic Gas Pressure Pipe, Tubing, 

and Fittings section A1.3.5 Color and UV Stabilizer to 

replace the edition already IBR

AGA Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.107 & 

Appendices A 

& B Sec. II

PHMSA 

OPS

Request for amendment of Part 192, appendix A and 

appendix B (sec. II) and 192.107 to allow hardness testing 

as an alternative to tensile testing for determining the yield 

strength of gas line pipe of unknown yield.

GPTC Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.121 and 

123

PHMSA 

OPS

Request the revision of 192.121 and 123 to permit use of 

polyamide 12 pipe at higher pressures. *Amended petition 

submitted 1/18/11 both petitions attached*

EvonikDegussa 

AG/UBE 

Industries 

PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

N N N
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COMMENT

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Petition action is appropriate 

to address commenter 

concerns.

192.133 PHMSA 

OPS

Petitions for the efficacy of the .4 design factor for modern 

PE piping

AGA Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.503 & 

192.619

PHMSA 

OPS

Petition for sections 192.619 & 192.503 to be amended to 

exempt tie in section of steel piping from the requirements 

of 192.513.

GPTC Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.502 and 

192.505(d)

PHMSA 

OPS

GPTC is petitioning PHMSA to amend 49 CFR §§ 192.502 

and 192.505(d) to exempt certain components other than 

pipe from the strength test requirements of Subpart J

GPTC Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.513 & 

192.619

PHMSA 

OPS

Petition that 192.513 & 192.619 be amended to exempt tiein sections of plastic piping from the requirements of 

192.513.

GPTC Petition PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N

192.937 PHMSA 

OPS

Flex in scheduling gas transmission IM assessments PHMSA PHMSA will further 

investigate this issue 

to determine whether 

future regulatory 

action is appropriate 

to address commenter 

concerns.

N N N
USDOT – Retrospective Regulatory Review – Attachment 1 - Further Study Required 

* Does future action have the likely potential for positive effects on small businesses (SB), information collection burdens (IC), or state/local/tribal entities (SLT)?
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

Wants DOT to withdraw 2005 guidance concerning 

accessibility issues.

APTA The guidance was properly issued and properly 

applied as guidance – not as new regulatory 

mandates – by DOT. Some portions of the 

guidance (e.g., with respect other power-driven 

mobility devices) to are likely to be modified as 

the result of pending rulemakings. 

Maintain or strengthen existing rules and guidance. Disability Rights 

Education and 

Defense Fund 

(DREDF)

No action needed in order to meet this request.

Concerned about use of other power-driven mobility 

devices on pedestrian and bicycle trains.

dean9080 -

Ideascale

This is covered under DOJ, not DOT, ADA rules.

Paratransit providers should not be allowed to deny 

service in a particular type of vehicle needed by people 

with some specific medical conditions. Suggests 

amendment to sec. 37.121 (a) to correct problem.

pat.civilrights -

Ideascale

DOT has interpreted rules not to require 

paratransit providers to provide a specific type of 

vehicle tailored to an individual’s specific 

disability, on basis that this would be a 

fundamental alteration of services. 

Currently, all employers in a given industry must meet 

the same random testing rate for their employees (50%, 

in the case of the motor carrier industry). OOIDA 

suggests a bifurcated system, in which drivers who had 

tested negative 5 times in a row would only have to be 

tested at a 25% rate. OOIDA believes this would be 

more cost-effective without diminishing safety. OOIDA 

asks for an FMCSA pilot program for this idea.

OwnerOperators 

Independent 

Drivers’ 

Association 

(OOIDA)

This idea would greatly complicate the 

administration of the drug testing program, as 

employers would have to maintain two separate 

random pools. More importantly, it would also 

reduce the deterrent effect of the program, as 

some drivers would accurately perceive that they 

had a smaller likelihood of being caught for using 

illegal drugs. Adopting the idea for motor 

carriers, even in a pilot program, would have 

unintended consequences for other modes. It is 

important to keep modal requirements consistent.

14 C.F.R. § 

25.831(g)

FAA Modify the current paragraph (g) to read as follows: 

“airplane design must accommodate any environmental 

control system failure condition not shown to be 

extremely improbable.”

Boeing 

Commercial 

Airplanes

The FAA tasked ARAC to review 14 CFR 

25.831(g) for harmonization with other authorities’ 

standards. ARAC developed an international 

consensus of airplane manufacturers (including 

Boeing), regulators, pilots, and flight attendants to 

propose a new regulation and means of 

compliance. The commenter’s proposal is not 

consistent with the results of the ARAC 

consensus.

14 C.F.R. § 

25.841(a)(2)

FAA Modify paragraph (a)(2)(3) to exclude engine failure;

Add subparagraph (a)(4) to state: “in the event of an 

Boeing 

Commercial 

Airplanes

The FAA tasked the ARAC to review 14 CFR 

25.841(a)(2) and (3) for harmonization with other 

authorities’ standards. ARAC developed a 
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REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

engine failure, the cabin altitude time history must be 

shown to provide continued safe flight and landing 

capability.”

consensus of airplane manufacturers (including 

Boeing), regulators, and pilots to propose a new 

regulation and means of compliance. ARAC 

initially considered eliminating consideration of 

the threat of a rapid depressurization from an 

uncontained engine failure event, but the 

proposal did not have majority support.

14 C.F.R. §§

25.795; 

25.809(a)

FAA FAA did not take a “systems approach” in developing 

these rules which contributed to significant issues in 

demonstrating compliance with the rule.

Boeing 

Commercial 

Airplanes

14 C.F.R. § 25.795 is the result of an ARAC 

recommendation and is harmonized with ICAO 

and EASA standards. The FAA is working with 

EASA to refine the requirement and then 

harmonize the standards. While the FAA is 

authorized to amend the airworthiness 

requirements in whatever manner deemed 

necessary by the Administrator to provide 

assurance of an acceptable level of safety, if 

good cause exists to deviate from international 

standards, we would consider amending the 

regulations. However, in this case the 

international standards were developed by a 

consensus of the aviation community at large, 

including the FAA. Thus, harmonization with 

international standards best serves the mission of 

the FAA in assuring an acceptable level of 

aviation safety, and minimizes compliance costs 

to industry by standardizing regulations abroad.

14 C.F.R. part 

93, subpart B

FAA Eliminate the DC SFRA Aircraft Owners 

and Pilots 

Association

The FAA does not believe part 93, Subpart V is 

appropriate for regulatory review. The 

reasons/justifications for establishing the DC 

SFRA requirements continue to exist today.

14 C.F.R. part 

101

FAA Applicants for waivers should be subject to an evaluation 

of all potential impacts on flight operations including 

VFR; require notice and comment for applications for 

waivers

Aircraft Owners 

and Pilots 

Association

The FAA does not believe part 101 is appropriate 

for regulatory review. The current regulation 

allows for evaluation of impacts to the NAS as 

part of the waiver process and there is an existing 

process for waiver requests which solicits input. 

14 C.F.R. § 

61.129

FAA Remove “complex aircraft” requirement from 

aeronautical experience requirements for commercial 

pilot 

Aircraft Owners 

and Pilots 

Association

The FAA proposed a change to the “complex 

aircraft” requirement in a 2009 NPRM. The FAA 

is continuing to review the regulation to determine 

what aeronautical experience requirement would 

be most beneficial to commercial pilot applicants.
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REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

14 C.F.R. part 47 FAA Eliminate expiration date printed on aircraft registration 

document and allow for an online validation of 

information

Aircraft Owners 

and Pilots 

Association

The expiration date was only recently added to 

the Aircraft Registration through rulemaking 

which went into effect October 2010. Before that 

date, the registration did not expire. The FAA is 

currently in the process of re-registering all 

aircraft, which will occur over the next 3 years in a 

phased manner. Following that period, all aircraft 

registrations will be renewed every 3 years. Reregistration and renewals can be done online if 

there are no changes to the registration and the 

owner has the option to pay online with links 

provided to pay.gov.

14 C.F.R. § 

25.803

FAA Establish panel to examine and develop a method for 

assessing the evacuation capability of aircraft

Association of 

Flight 

Attendants –

CWA, AFL-CIO

The FAA relies on a number of design 

requirements in addition to § 25.803 to provide an 

effective system for evacuation in an emergency, 

including aisle width, passageways from the 

aisles to the exits, not-to-exceed distance 

limitation between exits, minimum illumination 

levels along the escape path, stringent 

performance standards for emergency exits and 

escape slides, required space for flight attendants 

at the exits, etc. Although we have ongoing 

research in the area of evacuation, we have 

determined that our existing certification methods 

provide an acceptable level of safety. 

The FAA is currently sponsoring research in the 

following areas:

1. Analytical modeling of evacuation and egress

2. Improved occupant survivability of post-crash 

fire

3. Improved evacuation aids and equipment for 

informing passengers evacuation procedures

The FAA develops regulations based on 

experience and knowledge gained from past 

accidents and analysis and research of potential 

future threats. The level of safety in any 

regulation is primarily based upon whether the 

requirements address known past issues and 

problems as well as those we predict are likely to 
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REGULATION

OPERATING 

ADMIN./ OST 

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COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

arise. The FAA has amended the evacuation and 

egress regulations after every major accident in 

which we identified new issues in these areas. 

The FAA believes the regulations address these 

threats adequately and thus consider the current 

level of safety provided by the regulations to be 

acceptable.

14 C.F.R. part 

25; 14 C.F.R. § 

121.1117

FAA Review the flammability reduction rule for redundancy, 

excessive burdens on industry, and cost-effectiveness

Air Transport 

Association

The FAA continues to regard flammability 

reduction on the entire affected fleet, including 

those airplanes that must be modified via retrofit, 

as a critical element in reducing the risk of future 

fuel tank explosions to an acceptably low level. 

The acceptable level of risk for any catastrophic 

outcome such as a fuel tank explosion is that it is 

not anticipated to occur in the life of the transport 

airplane fleet. FAA assessment of the risk and 

development of the standards to reduce the risk 

to this level is described in detail in the Reduction 

of Fuel Tank Flammability in Transport Category 

Airplanes Notice of Proposed Rulemaking (70 FR 

70922).

The FAA acknowledges the retrofit kit “price” 

information added to the rulemaking docket in 

August 2010 is higher than the kit “cost” estimate 

in the final rule regulatory evaluation. When 

developing the final rule, the FAA estimated that 

1.8 accidents would occur over a 25-year period 

without the rule in place. The final regulatory 

evaluation for this rule estimated net benefit 

losses of $355 million (73 FR 42444); however, 

the FAA proceeded with the final rule because of 

the substantial probability of another accident. 

The increase in kit cost does not affect the risk of 

an accident, so we do not intend to reevaluate the 

regulatory costs and benefits.

14 C.F.R. part 26 FAA Review practices for employing part 26 Air Transport 

Association

The FAA regards part 26 as beneficial to aviation 

industry, as it ensures operators receive the data 

and support they need from the design 
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REGULATION

OPERATING 

ADMIN./ OST 

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COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

community to comply with the accompanying part 

121 rules. The FAA recognizes the addition of 

part 26 adds complexity to the rulemaking 

process, but we also believe it makes the process 

more integrated and systemic. We will continue to 

adjust and modify our approach to scheduling the 

effective dates in the part 25, part 26, and part 

121 to ensure operators receive the information 

they need in a timely manner.

FAA-2010-0997

(NPRM)

FAA Examine ways to streamline and harmonize SMS among 

FAA’s various lines of business

Airports Council 

International

The FAA agrees with the suggestion to 

harmonize and coordinate Safety Management 

Systems (SMS) within the FAA. SMS is a high 

priority for the FAA. The FAA has established the 

Safety Management and Research Planning 

Division within Aviation Safety that coordinates 

and better harmonizes the four SMS effort, 

including Air Traffic, Aviation Safety, Airports, and 

Commercial Space. In addition, FAA has a 

committee of senior executives from these major 

lines of businesses that meet to coordinate SMS 

rulemakings, projects and policy. SMS 

requirements and needs, while similar at a high 

level, differ considerably between airports, air 

traffic, and the certificate holders of the NAS. 

While the SMS efforts throughout the agency 

cannot be identical, the FAA works to ensure that 

SMS efforts are consistent.

Airports 

Geographic 

Information 

System (GIS) 

and Electronic 

Airport Layout 

Plan (eALP) 

Program

FAA Review scope of GIS/eALP program and associated 

survey requirements and assess ways to lessen burden 

that unfunded mandate imposes on airport sponsors

Airports Council 

International

The FAA acknowledges that there were initially 

some increased costs as the consulting 

community learned the new requirements. 

However, the FAA routinely provides AIP funding 

for survey and related costs in connection with 

AIP-funded projects as well as airport master 

plans and Airport Layout Plan (ALP) updates. 

Moreover, by conducting these surveys at a 

higher level of accuracy and by standardizing the 

methodology and data storage format, airports 

will no longer have to repeatedly collect the same 

types of data. Therefore, the FAA's standards do 

not represent an "unfunded mandate" - on the 

contrary, over time this transition will save 
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REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

airports money. Nevertheless, the FAA does 

acknowledge that it would be helpful to continue 

presenting and explaining this to industry 

stakeholders.

Passenger 

Facility Charge 

Rules; 14 C.F.R. 

part 158

FAA Withdraw or limit applicability of Program Update and 

permit airports to rely on existing information to 

document project costs over $10 million;

Modify policy regarding “substantially compete” 

applications to permit consideration of supplemental 

information during 120-day internal application process;

Treat 6-month threshold in agency Order as advisory;

Amend part 158 to treat request of use authority as an 

amendment to previously approved impose-only project 

applications 

Airports Council 

International

The FAA appreciates the level of care that went 

into preparing these comments and will review 

the referenced guidance documents to determine 

how best to address and potentially mitigate the 

concerns expressed. All but one of the suggested 

changes relate to the FAA’s guidance or policy 

rather than to the regulation itself. The other 

comment (use authority/ application approvals) by 

itself, while raising one processing issue, does 

not rise to the level for reviewing the regulation at 

this time. However, the FAA will consider all of 

the comments as part of a comprehensive review 

of the PFC program over the next 18 months 

(pending availability of funding). We will seek 

industry input as part of that review before 

making a decision whether an update to the 

regulation is warranted and necessary.

14 C.F.R. § 

61.23

14 C.F.R. § 

91.171

FAA Expand use of drivers license and medical certification 

beyond that of sport pilot

Allow additional operational test methods for VORs

Aircraft Owners 

and Pilots 

Association

The FAA will consider these comments in the 

context of other priorities. 

14 C.F.R. § 

25.831

FAA Require installation of bleed air cleaning and monitoring 

equipment to remove oil particulate and semi-volatile and 

volatile compounds from bleed air before its supplied to 

the cabin and flight deck

Association of 

Flight 

Attendants –

CWA, AFL-CIO

The FAA is considering revisions to cabin air 

quality standards. The FAA is prepared to task 

the Aviation Rulemaking Advisory Committee 

(ARAC) to review the 14 CFR part 25 cabin 

environment regulations, pending receipt of a 

joint industry-FAA sponsored air quality survey 

(i.e., via the American Society of Heating 

Refrigeration and Air Conditioning Engineer, 

Phase II Study), expected to be published in 

2011. The ARAC will consider the commenter’s 

issue.

14 C.F.R. parts 

121 and 135

FAA Amend flight and duty regulations to account for 

available scientific research and professional experience 

Association of 

Flight 

Attendants –

The FAA will consider these comments in the 

context of other priorities.
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

Apply OSHA regulations to crewmembers 

Require passenger notification of pesticide spraying on 

aircraft

Limit size and number of carry-on bags

CWA, AFL-CIO

14 C.F.R. § 

121.467

14 C.F.R. parts 

121 and 135

FAA Amend existing flight and duty rules to account for 

available scientific research and professional experience 

of government and aviation industry representatives;

Initiate rulemaking on the occupational health and safety 

recommendations of FAA/OSHA Joint Team

Association of 

Professional 

Flight 

Attendants

The FAA will consider these comments in the 

context of other priorities.

Preferred 

Alternative to 

Higher Level of 

Detail (Section 

6002)

FHWA FHWA should allow a state to develop the preferred 

alternative to a higher level of detail without requiring 

FHWA’s individual, project-by-project approval. The 

requirements for developing the preferred to a higher 

level of detail should be defined in standard procedures 

so that individual project-level approval is not needed.

AASHTO This proposal is not recommended. The key 

question is whether developing the preferred 

alternative more fully would cause, in the mind of 

the NEPA decision makers, an imbalanced 

comparison among alternatives because of time, 

money, or energy expended. The Federal lead 

agency must be confident that the lead agencies 

will be able to make a different choice of 

alternative, if warranted, at the end of the NEPA 

process. The use of this SAFETEA-LU provision 

must not result in "pro forma" treatment of 

alternatives other than the preferred alternative.

23 CFR Section 

635.413

FHWA Expand the warranty provisions for design-bid-build 

projects to cover entire projects (i.e., allow “general 

project warranties”), which are currently allowed for in 

design-build projects; and 

Encourage more performance-based contracting by 

extending the allowable time period from “1 to 2 years” to 

“up to 10 years,” to better determine whether the product 

being purchased with public funds performs as intended. 

AASHTO The statutory prohibition on participation in 

routine maintenance may conflict with a provision 

to maintain an entire project for an extended time 

period. Based on the industry’s opposition to 

such clauses in the 1995-1996 rule making 

period, substantial opposition to long term 

workmanship and material warranties still exists 

and most likely would increase a contractor’s risk 

and bid prices. FHWA is encouraging 

performance based contracting under the 

Highways for Life and SEP-14 initiatives. No 

regulatory action is necessary.

Mainstream 

Successful 

Innovation

SEP-14 and 

FHWA FHWA could streamline the process for having SEP-14 

and SEP-15 experiments become standard practice. 

Also, FHWA should become a clearinghouse of 

innovative practices that have worked well in the SEP-14 

AASHTO FHWA is proceeding with the evaluation of SEP14 and SEP-15 on an experimental basis under 

the authority of Title 23 USC 502(b). There are 

no statutory procedures for moving promising 
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REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

SEP-15. and SEP-15 processes new project delivery methods, contracting 

methods, or other techniques into operational 

practice. In the recent past, FHWA has utilized 

the rule making process to move the design-build 

project delivery method from an experimental 

phase to an operational phase (as required by 

Section 1307(c) of the Transportation Equity Act 

for the 21st Century). In the future, we will 

consider the benefits of issuing directives or rule 

makings for proven techniques when adequate 

evaluation has been performed

Provide States 

with Additional 

Flexibility using 

Highway Bridge 

Program (HBP)

Funds

FHWA Change Federal eligibility rules for the Highway Bridge 

Program (HBP) to allow use of HBP funds for bridge 

deck rehabilitation or replacement when only the deck is 

structurally deficient, and to categorize rigid overlays as 

a preventive maintenance activity. This request is only 

for more flexibility in use of HBP funds in support of 

sound bridge system preservation and not a proposal to 

change allocation or distribution of HBP funds from state 

to state or state to local agencies.

HBP funds have to be used for a replacement structure, 

but if that replacement adds capacity, the added capacity 

portion has to come from another funding source, e.g., 

NHS or IM. Today it is rare that a new structure with a life 

of 50+ years is replaced "in kind." Most have some 

added capacity needs. It would be beneficial to have this 

restriction removed.

HBP funds can only be used for the replacement of a 

structure. It could be possible that a whole new structure 

on a new alignment could alleviate pressure on, and give 

additional service life to, an existing structure. However, 

HBP funding is not eligible for anything but a 

replacement of an existing structure.

• In some cases, the use of bridge funds for minor 

approach work is allowed. If additional road work 

associated with a bridge replacement or 

rehabilitation were to be included as an eligible use 

of HBP funds, the additional flexibility could 

increase usage.

AASHTO No regulation change is needed to address the 

comment regarding eligibility of structurally 

deficient bridge decks. They are already eligible 

per FHWA policy. 

No regulation change is needed to categorize 

rigid overlays as a preventive maintenance 

activity. As long as a systematic approach is 

applied, rigid overlays can currently be 

considered preventive maintenance. The 

systematic approach is required by law, not 

regulation.

No regulation change is needed to address the 

added capacity issue. Capacity can be added to 

a bridge that is otherwise eligible under the HBP.

No regulation change is needed to address the 

issue of using HBP funds to build a new structure 

on new alignment, as long as the alignment 

serves the same purpose and is within the same 

general corridor.

HBP funds can be used for activities other than 

replacement. No regulation change is needed.

No regulation change is needed to address the 

approach work issue. There is a great deal of 

latitude allowed in determining eligible costs for 

approach work. 
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

• Use of HBP funding is tied to the NBIS rating 

system which has its own set of problems. 

Currently, a structure must have a poor rating prior 

to programming a project. This means a structure 

is already in distress or the programming becomes 

a numbers game. There is value in assurances that 

the “worst is fixed first,” but states should be 

allowed to develop and program bridge work on a 

system basis with minimal added NBIS criteria.

• It is assumed that the “on/off system” fund 

distribution requirement was originally placed to 

assure a sharing of the revenue. However, at its 

most basic level, SHA's should be allowed to 

manage and balance the available revenue versus 

needs as they see fit – without added constraints. 

Further, with all the federal restrictions, many LPA's 

would consider it a benefit to receive state-only 

funds and defer the federal revenue to SHA's. 

However as the law is currently written, a change in 

apportionment is not a viable option. 

• HBP pro-rata share is fixed at an 80/20 percentage 

without regard for project type. It would be 

beneficial to increase the federal participation for 

Interstate Bridges to 90/10, like it is for IM funding. 

It would seem reasonable to consider bridge 

rehabilitation and replacement on the Interstate to 

be just as maintenance-oriented as are the eligible 

activities for Interstate Maintenance (IM) funds, yet 

an Interstate Bridge being funded with HBP funds 

requires a 20% match while the added capacity for 

the same bridge could be funded with IM revenue at 

a 10% match. 

The law establishes eligible activities under the 

HBP. Not all activities are linked to NBI data. 

Systematic preventive maintenance is allowed for 

bridges that are not already distressed. No 

regulation change is needed.

The minimum off-system percentage (15%) is 

established in statute. A regulation change would 

not address this concern.

The funding share is established in statute, not 

regulation. The law already allows 90% federal 

participation for HBP projects on the Interstate. 

No regulation change is needed.

“Buy America” 

Regulations

FHWA Regulations around the “Buy America” result in undue 

hardship and unnecessary paperwork, bureaucracy and 

materials tracking. Current interpretations allow zero 

tolerance or leeway, resulting in onerous situations 

where a small mistake on minor quantities of steel 

removes all federal funding.

AASHTO FHWA must comply with Buy America statutory 

requirements. No regulatory action is planned.

23 CFR Part 661 FHWA To provide input and recommendations to the BIA and 

FHWA in the development of IRR Program policies 

Indian 

Reservation 

We agree that these are important activities, and 

we will continue to utilize the IRRPCC and other 
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(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

and procedures; and 

To supplement government to government consultation 

by coordinating with and obtaining input from tribes, 

BIA and FHWA.

Roads Program 

Coordinating 

Committee 

(IRRPCC)

venues for tribal consultation.

NEPA Process FHWA Supports greater streamlining of environmental review 

process, including reducing document reviews by FHWA 

, accepting electronic submission of documents, and 

simplify categorical exclusion approvals

National 

Society of 

Professional 

Engineers

As part of the FHWA’s Every Day Counts 

Initiative, the agency has developed a toolkit that 

contains specific initiatives to shorten project 

delivery time. The recommendation requires 

more details for more specific consideration.

23 CFR 

771.117(c)

FHWA Clarify usage of the categorical exclusion for generally 

small, low-impact Safe Routes to Schools (SRTS) 

projects to make clear that environmental 

studies/documentation are not required 

Safe Routes to 

School National 

Partnership

FHWA’s regulations already allow for these types 

of projects to be processed under NEPA as 

categorical exclusions.

Safe Routes to 

School

FHWA Examine other programs/agencies with more efficient 

project delivery to identify & adopt best practices, e.g., 

HUD's Community Development Block Grant program 

has less paperwork and quicker construction.

Time and effort to comply with regulations for SRTS is 

high given the small size and scope of the typical SRTS 

award (approximately $150k) resulting in lagging 

obligations rates.

Issue new guidance for the SRTS program to clarify to 

state DOTS what is encouraged to expedite projects and 

identify areas for improvement in state DOT practice, 

including time between award and notice to proceed; 

contractors and engineers on retainer to implement 

infrastructure projects with accountability for deadlines; 

adequate staffing; develop a checklist of the project 

implementation process; differentiate between 

infrastructure & non-infrastructure awards for application 

& compliance processes; and bundle SRTS as one line 

in state/regional TIPs - SRTS projects often don't have 

regional significance so should not have to be listed 

individually I the plans

Safe Routes to 

School National 

Partnership

Statutory requirements require SRTS to follow 

Title 23 requirements.

The SRTS guidance already offers Project 

Streamlining, including grouping projects in the 

STIP. AASHTO is developing a noteworthy 

practices guide on SRTS that addresses 

expediting projects. This Guide will be available 

in May 2011 and will be provided to each DOT. 

Plans are underway to market the document after 

May and through FY 12.

FHWA Streamline/remove cumbersome federal environmental 

and consultant selection process requirements for small 

locally sponsored projects that typically have minimal 

environmental consequences, such as a locally 

Community 

Member

FHWA’s regulations already allow for these types 

of projects to be processed under NEPA as 

categorical exclusions. A change in the 

consultant selection process would require 
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COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

sponsored sidewalk project (program examples: 

Transportation Enhancements & SRTS)

revisions to 23 U.S.C. 112 and 113. 

"Work Type" 

proposals

FHWA Rate work type projects competitively with corresponding 

expected accident rates for each separate work type 

category. When accidents are considered as part of the 

selection and the SI is rated for all work types, then all 

proposals would be rated relative to their potential for 

safety improvements

Community 

Member

This comment appears to refer to an old funding 

program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). Therefore, specific response to this 

comment is not required.

Safety Index 

Calculation

FHWA Revise the safety index calculation to show reasonable 

accident costs and the expected accident rates for the 

various improvements. Property damage only accidents 

are hardly ever tracked so are nearly irrelevant. Injury 

accidents can be minor or severe and a differentiation 

between them must be made. The accident reduction 

needs to be defined as that which would bring it to the 

average expected accident rate. 

Community 

Member

This comment appears to refer to an old funding 

program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). A Safety Index calculation is not required 

as part of the HSIP. Therefore, specific response 

to this comment is not required.

Definition for 

minimum 

qualifications

FHWA With no definition of what the minimum requirement for 

project selection might be, Agencies and Districts waste 

far too much time on totally unrealistic applications. A 

minimum qualifier would reduce the workload for all.

With the [SI/Cost Benefit] calculation revised, a 

comprehensive ranking will provide the ‘best-bang-forthe-buck’ index for all proposals. At the start of each 

cycle, an estimated minimum score should be listed, with 

a slightly low number to start, (200?). Funds are then 

distributed from the top until exhausted with any 

remaining proposals left as alternates in case some top 

ones were dropped before the funds became available. 

In subsequent years, it is reasonable that only proposals 

with SIs above that previous cutoff number are highly 

likely to be funded while any below that number would 

again be left as alternates.

The cutoff number will change slightly each year but it 

would let agencies know in advance what proposals 

might be competitive and also what score is so low that it 

need not even be submitted. I’d even let them know that 

an SI of less than half the previous year’s minimum 

would not even be accepted.

Community 

Member

This comment appears to refer to an old funding 

program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). FHWA regulations allow States to 

determine how funds will be allocated within the 

State. Therefore, specific response to this 

comment is not required.

Low $ limits and FHWA HES funds should be distributed without respect to Community This comment appears to refer to an old funding 
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selection for 

other than safety

district share as agencies and districts compete to get 

the best projects funded by these 'extra funds.' Holding 

the project-funding limit to an artificially low limit to fund a 

greater number of projects lets trivial projects grab some 

of the funds that could do more good in other places. 

Awarding funds to an ineffective project to balance funds 

by District can deny funds to a worthy project in another 

District. Guidelines for other programs allow for a single 

project to receive up to 25% of the annual funds in the 

program. While that is bit high, if a high-cost project 

does prove to be competitive with a great potential for 

SAFETY improvement, it may very well be the best use 

of funds.

Member program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). FHWA regulations allow States to 

determine how funds will be allocated within the 

State. Therefore, specific response to this 

comment is not required.

Revising low 

estimates upward

FHWA “Low-Ball” estimated projects are frequently submitted 

and selected as being cost effective, only to return later 

in the process requesting additional funding to complete 

the project or a reduction in project scope to stay within 

the estimated cost. That process rewards poor estimates 

and encourages abuse.

The Grade Separation program requires that all funded 

proposals must be completed, as submitted, with all 

increased costs borne by the Local Agency. On 

completion, the final revised cost is again used to 

recalculate the project’s Safety Index. If, and only if, the 

revised cost would still show an SI that is above the 

cutoff for funding in the year it was funded, the project 

would get the additional funds. If the revised cost 

generates a below the cutoff limit SI, it never should 

have been honestly funded in the first place. Simply 

stated – small reasonable adjustments to good projects 

would be allowed while a major increase to an inferior 

project would not.

Community 

Member

This comment appears to refer to an old funding 

program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). FHWA regulations allow States to 

determine how funds will be allocated within the 

State. Therefore, specific response to this 

comment is not required.

Project delivery FHWA Awarding a new project to any Agency that is behind 

schedule with an existing project is poor stewardship for 

other worthy projects.

Timely use of funds and the competency of Agencies to 

deliver projects is a reasonable factor for determining 

which new proposals are selected. Major emphasis 

must be given to eliminating new proposals from any 

Agency that is currently behind schedule with an HES 

project until such time that the project is back on 

Community 

Member

This comment appears to refer to an old funding 

program, the Hazard Elimination Safety (HES) 

Program and how a particular State implemented 

the program. That program was replaced with 

the Highway Safety Improvement Program 

(HSIP). FHWA regulations allow States to 

determine how funds will be allocated within the 

State. Therefore, specific response to this 

comment is not required.
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schedule as proposed.

Role of the 

financial plan

FHWA Revisit the role the financial plan plays in the project 

development & federal funding process. States should 

be permitted to build toward a project development 

incrementally and sequentially within available resources 

and the financial plan should be able to be approved 

even though funding for the entire project is not 

available.

Illinois DOT By statute, “the STIP (program) can only contain 

a project or an identified phase of a project, only if 

full funding can be reasonably be anticipated to 

be available for the project within the time period 

contemplated for completion of the project”. 

(SAFETEA-LU § 6001, 23 USC 135 (g)(4)(E)).

CWA compliance FHWA Consolidate Clean Water Act compliance efforts under 

the EPA to eliminate duplicity of effort and reduce the 

amount of coordination necessary to complete critical 

infrastructure improvements. Use the considerable body 

of knowledge accumulated regarding effective wetland 

mitigation to develop better policies and procedures for 

implementation of Section 404 (33 USC 1344) which 

rewards efforts to achieve survivability by wetland 

banking 

Illinois DOT Section 404 permits fall under the Corps of 

Engineers and EPA. The national policy for 

Federal Agencies is to protect and enhance 

wetlands. FHWA supports the tools and 

processes available to streamline the 

environmental process and merge them with 

NEPA.

23 CFR part 450, 

statewide 

planning and 

metropolitan 

transportation 

planning

FHWA Statewide planning and metropolitan transportation 

planning require work programs, records retention, and 

significant reporting that would allow USDOT to pinpoint 

the costs and benefits associated with compliance with 

this part.

Many of the statements in this part can and should be 

conveyed in non-binding guidance. The regulations 

should be clear & concise about requirements and 

exceptions to those requirements. USDOT should 

assess whether some of the matters in this section could 

be better handled by states without these regulations

Caltrans Records retention requirements are consistent 

with the Common Rule that applies to Federal 

grant recipients. The requirements are critical to 

determining proper use of Federal funds and are 

appropriately required through regulations.

Examples of regulations are in Title 49 CFR 

18.42 and Title 49 CFR 18.20, which require 

accurate, current, and complete disclosure of the 

financial results of financially assisted activities 

made with grants or sub-grants awarded with 

DOT funding.

23 CFR part 450, 

TIP/STIP

FHWA Streamline the TIP Amendment process. Current 

regulations require that many relatively minor changes to 

project cost, scope, or schedule require time-consuming 

and paperwork intensive amendments to the TIP. This 

can occur as a result of relatively minor changes to 

project limits (as little as over a tenth of a mile), or 

changes in project cost (regardless of the amount of 

change). Relaxing the requirements for amendments will 

greatly expedite revisions and save resources. 

Change the period of the TIP/STIP from four years to 

Caltrans The current regulation provides flexibility to 

States/MPOs to set criteria for determining 

whether changes to cost or schedule for projects 

should be effected as “administrative 

modifications”. Changes to project design 

concept and scope, however, require an 

amendment because of their implications for 

conformity, public involvement, and fiscal 

constraint. 

The period covered by the STIP/TIP was 
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five. Current regulation requires the TIP/STIP to cover 

four years and be updated at least every four years 

(California updates every two years, to have a pool of 

programmed projects to draw on). If the period of the 

TIP/STIP were increased to five years, with an update at 

least every four years, it would cut in half the workload of 

Metropolitan Planning Organizations and states for 

updates.

established in statute and cannot be changed in 

regulation without a change in statute.

The regulations do set forward criteria to 

distinguish between an administrative 

amendment versus an amendment. States and 

MPOs are encouraged to work with their FHWA 

and FTA field Offices to establish criteria for 

determining an administrative amendment 

consistent with the definitions in the planning 

regulations.

Changes in project design concept and scope 

such as changes in project length 

are treated as amendments because they may 

have other implications such as air quality 

conformity and require an analysis, public 

comment, and review. 

The TIP/STIP update cycle is set by Statute at 4-

years. A change to a 5-year update cycle would 

require a change in Statute

23 CFR part 635 FHWA Broaden and extend the option to use warranties in 

highway construction contracts. Currently, federal 

regulations allow for warranties to cover specific 

products or features of a construction project (such as 

the pavement), but are not allowed to cover an entire 

project. Recently, as part of changes made to federal 

regulations to accommodate design-build contracting, 

the warranties section of the CFR was amended to allow 

“general project” warranties on design-build projects on 

the NHS, which covers all parts of a construction project. 

In addition, projects developed under a public-private 

agreement may include warranties that are appropriate 

for the term of the contract or agreement, which could be 

many years. These allowances have not been made for 

traditional design-bid-build projects, which are still 

restricted, as noted above, to specific products or 

features.

While general project warranties will likely not be used 

Caltrans The statutory prohibition on participation in 

routine maintenance may conflict with a provision 

to maintain an entire project for an extended time 

period. Based on the industry’s opposition to 

such clauses in the 1995-1996 rule making 

period, substantial opposition to long term 

workmanship and material warranties still exists 

and most likely would increase a contractor’s risk 

and bid prices. 
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on all traditional design-bid-build projects, their use could 

encourage innovation in construction processes or the 

products that are used since the potential for failure 

would be covered by the warranty. Finally, even the 

general project warranties allowed for design-build 

projects are permitted only for short periods of time, or 

as the regulations state, “generally one or two years.” 

Unfortunately, one to two years is not typically long 

enough to determine if a roadway or bridge structure has 

been built correctly. A more appropriate minimum length 

of time for a warranty would be in the range of 5-10 

years.

23 CFR 

635.117(b), 23 

CFR 636.107 & 

49 CFR 

18.36(c)(2)/ Local 

hiring

FHWA Rescind FHWA regulations at 23 CFR 635.117(b), 23 

CFR 636.107 & 49 CFR 18.36(c)(2), because they 

unnecessarily prohibit application of local geographic 

preferences to construction of highway and bridge 

projects under the Federal-aid highway program

Building & 

Construction 

Trades 

Department, 

AFL-CIO

Local geographic hiring and contracting 

preferences are in conflict with the statutory 

requirement “The Secretary shall require such 

plans and specifications and such methods of 

bidding as shall be effective in securing 

competition.” (23 USC 112)

Categorical 

exclusion

FHWA Use of CEs should be expanded, best practice is to 

establish dollar thresholds for review. Provided 2 page 

template 'checklist for federal projects within existing 

ROW' - intended to be the only documentation required 

to be submitted by a state and/or local government for 

FHWA to authorize identified project types.

American 

Public Works 

Association 

(APWA)

These comments involve suggestions for the 

promotion of best practices, etc. No regulatory 

action is planned.

NEPA FHWA Rules be changed to simplify the NEPA and applicable 

federal regulations to provide clear guidance, make the 

process outcome based, provide a national 

clearinghouse submittal of NEPA documents, streamline 

the process, allow greater opportunity for and more 

definite guidance on qualifying projects as programmatic 

CEs, reduce documentation requirements, allow for 

greater, less burdensome delegation of FHWA 

environmental authority to states, and increase authority 

for states & USDOT to use programmatic approaches for 

environmental compliance

APWA No specific change is proposed for consideration 

other than a national clearinghouse for the 

submittal of NEPA documents. All Environmental 

Impact Statements must be submitted to the U.S. 

EPA who is required to publish weekly Notices of 

Availability for all of them in the Federal Register. 

In addition, a number of states have established 

clearinghouses under Presidential Executive 

Order 12372, "Intergovernmental Review of 

Federal Programs" to coordinate the review of 

proposed Federal financial assistance which 

includes NEPA documents.

Programmatic 

agreements

FHWA Develop programmatic agreements for activities that are 

primarily maintenance or safety activities 

APWA The FHWA’s Every Day Counts initiative includes 

Programmatic Approaches. CEQ and FHWA 

authorities and processes are in place to advance 

PAs for these activities. Other regulatory 
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agencies also have examples of developing 

streamlined reviews for common low impact 

projects.

Applicability of 

federal laws & 

rules to partially 

federally funded 

transportation 

projects

FHWA Allow state/local projects that receive less than $5 million 

or 25% of total project funding from federal sources to be 

exempt from federal laws/regulations, provided such 

projects follow all applicable state & local 

laws/regulations

Provide clear direction of when a project becomes 

'federalized' and subject to federal laws and regulations

APWA This suggestion would require Federal legislation 

to change the current provisions in law (23 U.S.C. 

112 (b)) which currently require a competitive 

negotiation process to be followed when 

procuring engineering and design related 

services using Federal-aid Highway Program 

funding on projects directly related to a 

construction project. Small purchase procedures 

(as specified in 23 CFR 172.5(e)) exist for 

engineering and design related services contracts 

with a total cost below the lesser of the Federal 

simplified acquisition threshold (currently 

established at $150,000) or the State’s 

established threshold. 

Whether a project becomes “federalized” is a 

fact-based decision that generally focuses on the 

degree of Federal involvement and control in the 

project. This makes it challenging to establish a 

universally accepted standard, as suggested. No 

regulatory action necessary.

23 CFR Part 450, 

planning & 

research 

program 

administration

FHWA Instead of requiring FHWA approval of planning 

programs and documents, enable states to self-certify 

that planning documents and programs are compliant 

with title 23

Maine DOT FHWA and FTA do not approve public 

involvement plans, long-range transportation 

plans, or transportation improvement programs 

(TIP) of MPOs. FHWA and FTA do approve the 

STIP and conformity findings on TIPs and 

Metropolitan Transportation Plans because it is 

required by statute. Any change to this requires a 

change to statute. States and MPOs currently 

have a requirement to self-certify that their 

planning programs and documents are compliant 

with Title 23. FHWA and FTA continue to 

examine their internal management practices and 

look for opportunities to achieve better 

consistency through providing guidance and 

training.

Audited overhead FHWA FHWA interpretation is that Audited Overhead report is Maine DOT This suggestion would require Federal legislation 
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report required for commercial rate contracts over $100k. 

Because the rates are calculated for reasonableness by 

a review of the market, report adds no value and creates 

additional expense for the consultant. Recommends 

eliminating the need for an Audited Overhead Report for 

any commercial rate contract greater than $100k.

to change the current provisions in law (23 U.S.C. 

112 (b) (2) (B and C)) which currently requires an 

indirect cost rate to be developed in accordance 

with the cost principles contained in the Federal 

Acquisition Regulations (48 CFR 31) on any 

contract or subcontract awarded for engineering 

and design related services using Federal-aid 

Highway Program funding on projects directly 

related to a construction project. 

23 CFR 172.7(b) 

Audits

FHWA Allow contracting agencies to initiate negotiations with 

consultants regarding their indirect cost rates by 

modifying the regulation as follows:

Replace the following:

“A lower indirect cost rate may be used if submitted by 

the consultant firm; however the consultant’s offer of a 

lower indirect cost rate shall not be a condition of 

contract award.”

With:

“A lower indirect cost rate may be negotiated. Agreement 

by the parties to a lower indirect cost rate shall not be a 

condition of award.”

Maine DOT No changes are needed or action required. 

Revisions to regulations are not required to 

address this comment. This suggestion would 

require Federal legislation to change the current 

provisions in law (23 U.S.C. 112 (b) (2) (B and 

C)) which requires an indirect cost rate to be 

developed in accordance with the cost principles

contained in the Federal Acquisition Regulations 

(48 CFR 31) on any contract or subcontract 

awarded for engineering and design related 

services using Federal-aid Highway Program 

funding on projects directly related to a 

construction project. A contractor may offer a 

rate lower than established in their indirect cost 

rate audit, however the agency cannot require a 

lower rate, a condition of award or in negotiating 

the contract.

23 CFR Part 450, 

Appendix A

FHWA Use planning process decisions as a starting point for 

NEPA review. FHWA should establish a presumption 

that decisions made in the planning process on corridor, 

facility type, and mode will be adopted in the NEPA 

process, in order to avoid the tendency for decisions 

made in the planning process to be re-opened in the 

NEPA process.

AASHTO This recommendation can substantially be 

implemented administratively. Currently, 

Appendix A of the planning regulation provides 

guidance on the use of planning information to 

inform the NEPA process. Appendix A is nonbinding and at the discretion of the parties 

responsible for NEPA review as to the extent and 

appropriateness of previous planning information 

that is used to inform NEPA versus the 

development of new information in NEPA. 23 

CFR 771.111(a)(2) states that the information 

and results provided by, or in support of, the 

transportation planning process may be 

incorporated into environmental review 

documents in accordance with 40 CFR 1502.21 
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and 23 CFR 450.212 or 450.318.

23 CFR 771 FHWA Promote programmatic solutions to streamline project 

delivery by the following:

Include clear regulatory language indicating that 

programmatic approaches are the standard way of 

conducting business.

Provide maximum flexibility in the development of 

programmatic categorical exclusions.

Expand funding and support for “in-lieu” fees for 

conservation banking and programmatic mitigation for 

natural and cultural resource impacts.

Allow the states, through programmatic agreements, to 

conduct legal sufficiency reviews.

AASHTO Efforts are underway within FHWA’s Every Day 

Counts initiative, NCHRP, and pending program 

work which can be accomplished under existing 

authority and eligibilities.

Current regulation makes this an FHWA/FTA 

determination and the only clear authority for 

delegating the decision is under 23 USC 327.

23 CFR 450/ 

revenue and cost 

documentation

FHWA 23 CFR Part 450 requires revenues and costs in MPO 

long range transportation plans (LRTP), MPO 

transportation improvement programs (TIP) and the 

statewide transportation improvement program (STIP be 

expressed in “year of expenditure dollars.” No such 

requirement is contained in Title 23 USC.

Recommendations:

The use of either “year of expenditure dollars” or 

“present day dollars” for both revenues and costs is 

technically correct and both approaches are widely used 

in financial analyses. The preferred approach should be 

a technical decision best made by the MPO in 

cooperation with the state.

AASHTO The year of expenditure (YOE) requirement in the 

regulation requires State DOT’s and MPOs to 

adjust project costs and revenues to year of 

expenditure. This is important for the 

demonstration of fiscal constraint because over 

the life of the STIP/TIP and MTP, revenues may 

not be inflating at the same rate as project costs. 

Also, using YOE dollars provides consistency 

between project costs in the STIP/TIP and those 

used in project finance plans. States and MPOs 

do have the option of developing an analysis 

using “present day dollars” in addition to an 

analysis using YOE dollars for their own use and 

purposes if they deem it necessary. 

23 CFR part 450 

subpart C -

signing of ROD 

or FONSI and 

TIP/STIP

FHWA The regulations require that “all regionally significant 

projects requiring an action by FHWA or FTA” be 

included in the TIP/STIP. The regulations also state that 

“ the STIP shall include for project or phase (e.g. 

environmental/NEPA...)” descriptive material, cost, etc.. 

Since one of the phases is environmental /NEPA the 

culmination of that phase with a ROD or FONSI 

signature should be done if the cost for that phase was 

included in the STIP. A memo written by FHWA states 

AASHTO The basis for requiring a subsequent phase of a 

project in a STIP/TIP prior to final NEPA approval 

is that in order for FHWA to make a decision 

under NEPA, there must be a proposed action 

that requires FHWA approval. Clarification of 

existing guidance has recently been issued on 

this topic at: 

http://www.fhwa.dot.gov/planning/tprandnepasup

plement.htm. No further regulatory action is 
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that a ROD or FONSI cannot be signed unless the next 

phase of the project is listed in the TIP/STIP with funds 

identified in addition to being listed in the fiscally 

constrained plan. This seems to require that at least 2 

phases be included in the TIP/STIP. This is an 

interpretation of the regulations that has created 

hardship for DOT’s trying to advance projects with very 

constrained funding streams where the project may have 

to be implemented in phases over a long period of time.

Recommendations:

Provide new guidance on the interpretation of signing of 

ROD or FONSI without having additional project phases 

included in the TIP/STIP.

planned.

23 CFR part 450, 

subparts B & C, 

integrating long 

range plans

FHWA The regulations require that many areas be addressed in 

the Statewide long range plan including safety, transit, 

rail, security, aviation, freight, and bike/ped. Varying 

guidelines from FHWA, FTA and FRA set the framework 

for these separate documents resulting in a fragmented 

approach that creates silos instead of integration.

Recommendation:

The regulations could be re‐structured to reflect a “one 

DOT” and a more comprehensive approach to 

transportation planning.

AASHTO The framework for these documents is based on 

current statute and current regulations are 

consistent with the statute. 

23 CFR 650.311, 

bridge inspection 

frequency

FHWA Within 23 CFR 650.311, bridge inspection frequencies 

are mandated at fixed maximum intervals that are 

independent of detail types on the bridge, traffic 

volumes, magnitude of service stresses, age of the 

structure, and frequency of the loading cycles on the 

bridge. Newer bridges with improved details and 

materials that carry low truck traffic volumes should not 

have the same inspection requirements as older, more 

heavily traveled bridges. Since damage occurs more 

rapidly in older structures due to the accumulation of 

damage with service, the optimum inspection schedule 

would be more infrequent in the early life of the structure 

and more frequent in its later years. The engineering 

community has the ability to develop inspection 

frequencies that take into account the rate of damage 

accumulation to provide a defined reliability.

AASHTO FHWA is participating in an NCHRP project to 

explore development of a methodology to apply a 

risk/reliability approach to establishing inspection 

frequencies. FHWA believes a more rational 

approach to setting inspection frequencies would 

enable bridge owners to focus resources on 

bridges most in need of attention. No further 

regulatory action is planned at this time.
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A provision that treats all bridges the same, with respect 

to inspection frequencies, requires states to expend a 

large amount of resources without significantly improving 

the safety and reliability of the structures. This diverts 

funds and resources from those bridges that need 

additional monitoring to those that have an inherently 

lower risk of failure through being either lightly traveled 

or still early in their design lives. A process that utilizes a 

risk based solution similar to other industries for 

determining inspection frequencies would allow states to 

properly focus and apply limited resources to the bridges 

where the need is greatest.

Recommendation:

Revise 23 CFR, Part 650, Section 650.311 to allow the 

bridge inspection frequencies to be determined using a 

risk/reliability based method.

Emergency 

repair work in 

northern states

FHWA The 180 day timeframe for 100% federal reimbursement 

for disaster repair work is not appropriate in northern 

states as a result of the weather-shortened construction 

season. Northern states are losing federal funds due to 

the fact that they are in the north and construction cannot 

take place in the winter.

Recommendation:

Allow seasonal discretion for start dates for the 180 day 

period in which emergency relief funding is reimbursable 

with 100% federal funds in northern states.

AASHTO This suggestion would require a statutory change. 

No regulatory action is planned.

Delegation of 

project oversight 

to state DOTs

FHWA Need to more clearly define the role of Federal & State 

partners in the project delivery process to reduce 

redundancies & inefficiencies within the project oversight 

process. 

The current structure of review appears to be a hold-over 

from the 1960s and 1970s, when FHWA provided 

engineering expertise and guidance to the States. 

FHWA is now a much leaner agency, and attempts to 

continue the detailed federal oversight slows the project 

delivery process. 

AASHTO FHWA’s approach to project oversight has 

undergone significant changes since the passage 

of ISTEA in 1991. Our stewardship and oversight 

role has evolved based of changes in surface 

transportation laws, recommendations resulting 

from OIG and GAO reviews, and FHWA’s own 

efforts to improve its stewardship and oversight of 

the Federal-aid program. The stewardship and 

oversight guidance, last revised in 2003, is now in 

the process of being updated. No regulatory 

action planned.
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States hire licensed professional engineers, but multiple 

levels of review remove accountability. Holding 

consultants accountable and reducing redundant 

oversight will help move transportation agencies toward 

performance based design & engineering, the natural 

evolution from the current "prescriptive" method of 

design.

Recommendation:

Modify FHWA's project review process to be more 

process-oriented rather than project specific, thus 

delegating the primary role of project oversight to State 

DOTs.

23 CFR 637B, 

Quality 

Assurance for P3 

projects

FHWA 23 CFR 637B, "Quality Assurance Procedures for 

Construction ", and associated TA 6120.3 "Use of 

Contractor Test Results in the Acceptance Decision, 

Recommended Quality Measures, and the Identification 

of Contractor/Department Risks" do a good job of 

assuring that the public's interests are protected when a 

transportation project is delivered using the 

Design‐Bid‐Build or Design‐Build processes that do not 

include a long‐term maintenance agreement (50 yrs).

However, for a Concession or a 

Public‐Private‐Partnership (P3) contract that requires a 

50‐year maintenance agreement, these federal 

requirements insert the owner into the Concessionaire's 

daily operations and may increase their risks of being 

able to enforce the performance standards of the 50‐year 

maintenance agreement.

Recommendation:

Eliminate the requirement for the Owner to perform 

Owner Validation on all materials testing if a long‐term 

maintenance agreement (50 yrs) is part of the contract 

and an Independent Engineer (IE) utilizes standard audit 

process oversight to confirm that the Concessionaire 

follows their approved quality processes.

AASHTO 23 CFR 637.207 (b) states that “In the case of a 

design-build project funded under title 23, U.S. 

Code, the STD's quality assurance program 

should consider the specific contractual needs of 

the design-build project” and that the quality 

assurance program may rely on a combination of 

contractual provisions and acceptance methods 

so that adequate verification of the designbuilder's quality control sampling and testing is 

performed to ensure that the design-builder is 

providing the quality of materials and construction 

required by the contract documents.

The current regulation does allow for reduced 

verification sampling and testing for validation, 

however, some level of validation is still required 

to protect the owner from the risk of the costs 

resulting from major project failure during the 

agreement period. Q&A on quality assurance 

can be found on the FHWA website at: 

http://www.fhwa.dot.gov/pavement/materials/qan

da637.cfm

SRTS FHWA Title 23 regulations are primarily targeted toward large 

scale, complex, federally funded highway projects & time 

and effort needed to comply is large compared with the 

Robert Wood 

Johnson 

Foundation

Some statutory changes would be necessary to 

achieve the goals of this comment. The SRTS 

guidance already offers Project Streamlining 
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small award (average size of the award is $150k) 

resulting in lower obligation rates

Recommendations:

1. Clarify usage of the “categorical exclusion” for the 

National Environmental Policy Act (NEPA) [23 CFR 

771.117(c)]. Under current regulations, bicycle and 

pedestrian lanes, paths, and facilities are listed as not 

requiring additional National Environmental Policy Act 

documentation or Federal Highway Administration 

approval. However, for SRTS projects, some states are 

requiring environmental studies and most are requiring 

project sponsors to fill out multi-page forms requiring 

sign-offs from numerous agencies to document that the 

project qualifies for the categorical exclusion. SRTS 

projects are generally small, low-cost, and within an 

existing built environment and therefore should not 

require documentation to qualify for the categorical 

exclusion unless special circumstances exist. If the 

categorical exclusion could be clarified, it would help 

simplify the process of environmental approvals.

2. Examine other programs or agencies with more 

efficient project delivery to identify and adopt best 

practices and rules changes. For example, the 

Community Development Block Grant program through 

the Department of Housing and Urban Development 

provides funding for installation of sidewalks and other 

community development projects. Local experiences with 

this program involved less paperwork and quicker 

construction than is possible through the SRTS program.

3. Issue new guidance for the federal SRTS program that 

clarifies for state Departments of Transportation (state 

DOTs) what is permissible and encouraged to expedite 

projects. It would also be helpful for the FHWA to follow 

up with state DOTs to review their practices and identify 

areas for improvement. Some measures that could be 

recommended include:

• Monitor the amount of time it takes to get from award 

to notice to proceed and identify steps in the process 

recommendations. Rather than issue new 

guidance, the FHWA can provide additional 

information to Divisions specifically related to 

categorical exclusions and grouping projects in 

the STIP. AASHTO is developing a noteworthy 

practices guide on SRTS that addresses 

expediting projects. This Guide will be available 

in May 2011 and will be provided to each DOT. 

Plans are underway to market the document after 

May and through FY 12. 
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that can be improved by the state.

• Hire contractors at the state level on retainer to 

implement infrastructure projects and hold them 

accountable for completing projects within a 

reasonable timeframe. These contractors can 

expedite construction by handling Title 23 

compliance for multiple projects at once and are 

more familiar with the process than local 

communities with less experience with federal 

transportation rules.

• Hire engineering firms on retainer to provide “on-call” 

engineering services and regulatory assistance for 

project recipients unfamiliar with the regulatory and 

approval process.

• Ensure adequate staffing within the state DOTs 

contracting department to handle the administrative 

workload for the dozens of project recipients and to 

allow for responsiveness to local inquiries.

• Develop a checklist for recipients of the various 

steps in the implementation process, including forms 

needed, timelines, and contact persons while 

keeping in mind that many project recipients may be 

unfamiliar with the federal transportation rules and 

process.

• Have separate application and compliance forms for 

non-infrastructure and infrastructure awards so that 

non-infrastructure projects are not delayed while the 

additional forms and permissions are completed for 

construction projects.

• Bundle SRTS projects as one line in the state and 

regional Transportation Improvement Plans (TIP) so 

that individual project sponsors do not have to apply 

for amendments to the Statewide Transportation 

Improvement Program/TIP. Small-scope SRTS 

projects should not be considered “regionally 

significant” and therefore do not have to be listed 

individually.

Environmental 

Delegation

FHWA Expand and make permanent the SAFETEA-LU 

delegation pilot.

General 

Contractors 

Assn of NY

This proposal would require statutory changes.
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23 CFR 774, 4(f) FHWA Length of comment period for DOT/HUD/Dept of 

Agriculture review of 4(f) (45 days + 15 additional days) 

is too long. 

The 45-day (plus 15) comment period does not seem 

reasonable when reviews by the Division office and for 

legal sufficiency are typically limited to 30 days (in 

Colorado). Also, even when DOI comments are 

provided in a timely manner, the agency still has to plan 

for the 60-day review in the schedule. In addition, 

experience with several recent full Section 4(f) 

evaluations reveals that the DOI review rarely results in 

substantive comments that require changes to the 

Section 4(f) document. And finally, understanding that 

coordination with DOI/HUD/Dept of Agriculture is part of 

the statute, it’s not always clear from a resource 

perspective why these agencies are involved in the 

review process. If DOI/HUD, Dept of Agriculture have 

jurisdiction over, or interest in the Section 4(f) resources, 

then it makes sense to include them in the evaluation 

process. But when there is no jurisdictional or other 

reason for interest in the resource, it seems like a waste 

of everyone’s time to include their review in the overall 

process.

Recommendations for Modification, Elimination:

• Re-examine the comment period for DOI/HUD/Dept 

of Agriculture to eliminate the additional 15-day time 

frame from the comment period OR decrease the 

time frame to a more reasonable 30 days to align 

more closely with typical time frames for internal 

reviews

• Determine if DOI/HUD/Dept of Agriculture review is 

necessary by establishing whether DOI/HUD/Dept of 

Agriculture have jurisdiction or another interest in the 

Section 4(f) resource. Based on interest in Section 

4(f) resource, provide DOI/HUD/Dept of Agriculture 

the opportunity to decline the review

Colorado DOT 23 CFR 774 regulations require HUD and/or 

Agriculture review only when appropriate. Given 

DOI’s expertise in all Section 4(f) resources, they 

are provided an opportunity to comment on all 

individual Section 4(f) evaluations. After 

coordination with DOI on the update to the 

Section 4(f) regulations in 2008, the time period 

for their comment was limited to 60 days before it 

was assumed there was a lack of objection. No 

regulatory action planned.

23 CFR part 450 FHWA Planning regulations for MPO’s and for Statewide 

planning – (23 CFR part 450, subparts B and C) – the 

planning regulations for mpo’s are distinct and different 

Colorado DOT With enactment of new Surface Transportation 

Program Authorization expected in the relatively 

near future, it is very likely that a new rulemaking 
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than those for statewide planning yet the expected end 

product is a consolidated transportation plan that covers

the whole state. The disparate requirements and 

timelines create confusion and difficulties in delivering for 

the public an understandable vision and implementation 

plan for transportation in the State. It is possible to have 

mis-matched or even conflicting goals and priorities even 

though there is a regulation calling for cooperative and 

collaborative planning to occur.

process will be undertaken to reflect new 

statutory requirements and authorities, replacing 

the current rule. This will certainly include 

attention to the alignment of metropolitan and 

statewide transportation planning, which can be 

fully vetted with all stakeholders and the public 

during that process. No regulatory action 

planned.

23 CFR part 450 FHWA (23 CFR part 450, subpart C) - The requirement for 

projects to be listed in the long range plan for MPO 

areas, particularly those in non-attainment for the clean 

air act, creates a “pipeline” of projects with strong 

political expectations for over a 20 year horizon. 

Changing emphasis areas or funding types or policy 

priorities are not easily addressed due to the resistance 

to deviate from that list once it is established.

Colorado DOT The requirement for Statewide and Metropolitan 

Transportation plans to cover a 20-year horizon is 

required by statute. Any changes to regulations 

would require a change in statute. However, the 

State DOT’s and the MPO’s have the option of 

amending their plans at any time.

23 CFR part 450 FHWA (23 CFR part 450 subpart C) – Signing of ROD or 

FONSI and TIP/STIP – the regulations require that “all 

regionally significant projects requiring an action by 

FHWA or FTA” be included in the TIP/STIP. The 

regulations also state that “ the STIP shall include for 

project or phase (e.g. environmental/NEPA...)” 

descriptive material, cost, etc.. Since one of the phases 

is environmental /NEPA the culmination of that phase 

with a ROD or FONSI signature should be done if the 

cost for that phase was included in the STIP. A memo 

written by FHWA states that a ROD of FONSI cannot be 

signed unless the next phase of the project is listed in 

the TIP/STIP with funds identified in addition to being 

listed in the fiscally constrained plan. This seems to 

require that at least 2 phases be included in the 

TIP/STIP. This is an interpretation of the regulations that 

has created hardship for DOT’s trying to advance 

projects with very constrained funding streams where the 

project may have to be implemented in phases over a 

long period of time.

Colorado DOT The basis for requiring a subsequent phase of a 

project in a STIP/TIP prior to final NEPA approval 

is that in order for FHWA to make a decision 

under NEPA, there must be a proposed action 

that requires FHWA approval. 

23 CFR part 450 FHWA Integrating Long Range Plans (23 CFR part 450 

subparts B and C) – the regulations require that many 

areas be addressed in the Statewide long range plan 

Colorado DOT The framework for these documents is based on 

current statute and the regulations are consistent 

with the statute. No regulatory action planned.
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including safety, transit, rail, security, aviation, freight, 

and bike/ped. Varying guidelines from FHWA, FTA and 

FRA set the framework for these separate documents 

resulting in a fragmented approach that creates silos 

instead of integration. The regulations could be restructured to reflect a “one DOT” and a more 

comprehensive approach to transportation planning

23 CFR 635.118, 

29 CFR 3, 5; 

Davis Bacon

FHWA Payment of Davis Bacon wages on Local Agency 

administered Temporary Enhancement and SRTS 

projects adds to the cost of the project as this takes 

administrative time and training. Enhancement funded 

projects and SRTS greater than $2000.00 but can be 

linked to a roadway on the federal-aid system as stated 

in the FHWA Memo 2008 are required to pay prevailing 

Davis Bacon wage rates. This is an impact to smaller 

communities in construction costs thus requiring higher 

local match as well as higher costs for contract 

administration to check payrolls and conduct labor 

compliance interviews.

Recommendation:

Propose that Davis Bacon wages for TE funded and 

SRTS projects be exempted and be treated similar to 

federal funded projects where the work is done by Local 

Agency forces. Davis Bacon wages for these smaller 

funded projects in local communities add costs to 

Contractors who don’t normally pay Davis Bacon wages 

and add costs for Local Agencies to perform payroll 

checks and conduct labor compliance interviews. 

Funding would go further for project if Davis Bacon 

wages not a requirement

Colorado DOT Statutory provisions require FHWA to apply 

Davis-Bacon requirements to projects on Federalaid highways. (23 USC 113).

23 CFR 470.105, 

Street & Highway 

Functional 

Classification

FHWA The guidelines currently in use have not substantially 

been reviewed or revised in over 40 years. HPMS Field 

Manual has been recently revised and new 

implementation is beginning. Functional classification is 

related and should also be reviewed. Urban Area 

boundaries might have more utility for transportation 

planning as an "urbanness" index assigned to US 

Census geography, or to features inside the US Census 

features.

Missouri DOT FHWA will consider the appropriateness of 

updating the functional classification system and 

the functional classification manual at the time of 

reauthorization. No regulatory action planned at 

this time.
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Since 1991, Functional classification has been used in 

some cases solely as a funding tool, and objective trip 

length data for classification is difficult to obtain and 

measure. The Functional classification system needs to 

be more robust to accommodate more classes to provide 

better utility at the local and regional levels to perform 

sound planning. Normalization of classes and better 

objective criteria would help unify data used by RITA and 

by the Bureau of Transportation Statistics.

23 CFR 

450.216(a), STIP

FHWA Due to the importance of keeping programming 

information up-to-date, it is recommended that the 

update period for the STIP be at least every two years, 

or more frequently if the Governor elects a more frequent 

update schedule. 

Updating the STIP every two years maintains a 

programming document that always shows planned 

obligations at least two years into the future. This is 

preferable to allowing the programming document to get 

down to showing only the current year's planned 

obligations.

Hampton 

Roads TPO

States and MPOs are required update the 

STIP/TIP at least once every 4-years. They may 

update the STIP/TIP more frequently if 

necessary. Any change to the 4-year minimum 

STIP/TIP cycle in regulation would require a 

change in statute. No regulatory action planned.

23 CFR 

450.216(b)

FHWA Recommend adding something to the effect of "the STIP 

development schedule shall take into account the 

metropolitan planning organization (MPO) processes for 

TIP development, including review of the draft TIP 

project list, public involvement, and meeting schedules of 

the technical and policy boards."

Since the MPO TIPs shall be included without change in 

the STIP [450.216 [b]], and since there can be 

repercussions if a MPO TIP is not ready in time to be 

included in the STIP (450.218 (c)), it is important that the 

cooperation between the State and the MPOs during 

STIP development take into account the time necessary 

to develop the MPO TIP.

Hampton 

Roads TPO

The current regulation calls for “...the cycle for 

updating the TIP must be compatible with the 

STIP development and approval process.” This is 

appropriate because a State may have multiple 

MPO TIPs that might be on different timeframes, 

while there is only one STIP. No regulatory 

action planned.

23 CFR 

450.216(l), STIP

FHWA Since the STIP is required to be fiscally constrained, it is 

recommended that this statement be revised to read the 

STIP shall include a financial plan (instead of may).

Hampton 

Roads TPO

This suggestion would require a change in 

statute. Current statute states that the STIP “may 

include a financial plan.” 

23 CFR 

450.324(a), TIP

FHWA Due to the importance of keeping programming 

information up-to-date, it is recommended that the 

Hampton 

Roads TPO

States and MPOs are required update the 

STIP/TIP at least once every 4-years. They may 
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update period for the TIP be at least every two years.

Updating the TIP every two years maintains a 

programming document that always shows planned 

obligations at least two years into the future. This is 

preferable to allowing the programming document to get 

down to showing only the current year's planned 

obligations. (This change would need to be made in 

concert with a change to 450.216 (a] regarding the 

update schedule for the STIP.)

update the STIP/TIP more frequently if 

necessary. Any change to the 4-year minimum 

STIP/TIP cycle in regulation would require a 

change in statute.

23 CFR 450.322, 

metropolitan 

transportation 

plan

FHWA Issue: Burdensome. Frequency of plan updates creates 

hardship on local governments in terms of staff and 

financial resources especially when the update process 

can take 2 years. Review this regulation to consider 

lengthening the frequency of transportation plan updates 

to at least 6 years for MFC's in air quality attainment, 

maintenance, or limited-maintenance areas.

Montana DOT The metropolitan transportation plan update cycle 

is set in statute – at least every 4 years in nonattainment and maintenance areas and every 5 

years in attainment areas. Any change to the 

regulations would require a change to the statute.

23 CFR 450.212 

transportation 

planning studies 

& project 

development and 

450 Appendix A -

linking the 

transportation 

planning and 

NEPA process

FHWA Issue: Maintain flexibility and do not mandate this 

optional project streamlining process. We are not 

suggesting this as a CFR to be reviewed. However, if 

selected based on input from others, do not incorporate 

Appendix A into the regulation, maintain it as an 

appendix. This process is useful because it is optional, 

not mandated, allowing states flexibility to customize the 

approach to what makes sense given each particular 

study. In addition, under 23 CFR 450.212, preserve the 

ability to use products from the planning process in the 

environmental process to avoid -duplication of efforts 

and unnecessary, excess costs.

Montana DOT Appendix A to the planning regulations is nonbinding and is guidance, not a requirement. No 

regulatory action planned.

23 CFR 450.206 

& 450.306 Scope 

of the 

Transportation 

Planning 

Process; 23 CFR 

450.214 

Development of 

Long-Range 

Transportation 

Plan; 23 CFR 

FHWA Issue: Maintain flexibility and progress made in 

streamlining. We are not suggesting these CFR's as 

candidates for review, but if they are selected, we 

strongly encourage retaining the flexibility and important 

streamlining provisions already contained in these 

regulations including:

1. Continue planning factor provision as a 

"consideration" rather than a "mandate" and do not 

expand the already comprehensive list of planning 

factors;

2. continue to allow the option of a policy-based 

Montana DOT No changes are requested with these comments; 

and there is no movement to change the three 

listed “streamlining provisions” from their current 

status. 
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450.222 & 

450.336 

Applicability of 

NEPA to 

Statewide & 

Metropolitan 

Transportation 

Plans

statewide long-range transportation plan, rather than 

project specific; and

3. continue to exempt the planning process from NEPA

23 CFR Part 645, 

Utilities

FHWA Issue: Outdated. These CFR parts address Utility 

relocations, adjustments and reimbursements, but rely 

upon manuals that were last updated in 2003. These 

CFR parts could be updated to incorporate new 

technologies, procedures and language in effect since 

2003.

Montana DOT No changes are needed or action required to 

address these comments. The use of evolving 

technologies and innovative practices to improve 

the detection, identification, accommodation, and 

relocation of utilities is allowed now and a 

decision of the State or a local agency. FHWA’s 

Every Day Counts initiative on “Flexibilities in 

Utility Accommodation and Relocation” is 

promoting and developing guidance to support 

State DOTs and local agencies using innovative 

practices, technologies and the flexibility which 

already exists associated with accommodating 

and relocating utilities in 23 CFR 645. 

23 CFR 650.203, 

erosion & 

sediment control

FHWA Issue: Conflicting regulations and undue cost for 

transportation departments. This regulation is 

inappropriate for linear facilities and should be reviewed.

Recommendations for Modification/Elimination:

The ELG should be modified to eliminate linear 

transportation projects from the construction and 

development point source category. Instead, 

construction of linear transportation facilities could more 

appropriately be handled under its own ELG point source 

category. Under this scenario, the technology that can be 

feasibly Implemented, as well at the economic impacts 

associated with implementation of identified technology, 

would be analyzed specific to linear transportation 

projects. This analysis would likely result in a turbidity 

limit with a greater likelihood of being met, as well as 

more practicable control and sampling requirements.

Montana DOT EPA published effluent limitation guidelines on 

12/1/2009 to control discharge of pollutants from 

construction sites. Sediment is one of the leading 

causes of water quality impairment. The 

guidelines were developed for construction 

activities which can significantly impair water 

quality. FHWA provided comments on the 

rulemaking and continues to work with EPA to 

ensure the measures identified in the rulemaking 

can be implemented with linear transportation 

projects.

23 CFR 650.113, 

practicable 

FHWA Issue: Misleading, unclear. Clarify what is required for 

documentation for determining "only practicable 

Montana DOT The term “practicable alternative” is used as 

defined and required by Executive Order 11988 
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alternative alternative". This could be done by revising the wording 

in 23 CFR 650.113 to first discuss what is required for 

"only practicable alternative finding" then add a second 

section to 650.113 to discuss what is required to 

sufficiently document the "only practicable alternative 

finding" for projects where there is a "significant 

encroachment.

In addition, this CFR is applicable to facilities, but it is not 

noticeable based on the title of Part 650. There is no 

reference to facilities in the title and this does and can 

prevent the reader from understanding this section is 

applicable. Suggest adding "facilities" to the title,

(May 24, 1977) and DOT Order 5650.2. The 

proposed changes would alter the requirements 

of EO 11988. Additionally, the meaning of 

“practicable alternative” is well understood and 

defined within floodplain and NEPA frameworks. 

For example, FHWA Technical Advisory T 

6640.8A (October 30, 1987) provides very good 

discussion and clarification of the floodplain 

process within NEPA (there are other examples). 

These provide the clarification recommended in 

the comments. Finally, adding more prescriptive 

requirements (such as findings) to the regulation 

could result in less flexibility for transportation 

officials. For example, projects with categorical 

exclusions would need to document the 

information suggested in the comment, resulting 

in additional regulatory burden. 

The regulation uses the term “action” to mean 

any highway construction, reconstruction, 

rehabilitation, repair, or improvement undertaken 

with Federal or Federal-aid highway funds or 

FHWA approval. This would include “facilities,” so 

adding the term would be redundant. 

The White House has instructed Federal 

Agencies to review and potentially revise EO 

11988 (Federal Interagency Floodplain 

Management Task Force). The USDOT is a 

member of this task force, with FHWA 

representing the OST in this effort. The USDOT 

will strive to recognize and communicate areas of 

improvement and concern to the transportation 

community. These comments represent one such 

potential area. 

23 CFR 774 - 4(f) FHWA Issue: Redundant, burdensome. Inclusion of historic 

sites in the Section 4(f) process is redundant to the 

Section 106 process under 36 CFR Part 800 "Protection 

of Historic Properties". This is a duplicative process with 

Montana DOT Section 4(f) law includes publicly owned historic 

properties. A statutory change would be required 

to effect this change. No regulatory action 

planned.
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no value added as historic properties are thoroughly 

dealt with under Section 106 which occurs early in the 

project development process. Historic considerations 

should be removed from the Section 4(f) regulation and 

appropriately remain under Section 106.

23 CFR 657-658, 

Truck size & 

weight

FHWA Issue: Burdensome and unclear. The reporting 

requirements are very cumbersome and unclear 

compared to the benefits gained from these reports. It is 

also confusing as to when and where a state can prohibit 

truck travel based on this CFR.

Montana DOT All the States are now reporting electronically. 

We will work through the Montana Division Office 

and the S&W program office to reach out to the 

Montana DOT to see if we can clarify the 

reporting requirements and answer any questions 

they have on truck travel. No regulatory action 

planned.

23 CFR 710.601, 

federal land 

transfers

FHWA Issue: Redundant as regards NEPA due to different 

federal agencies imposing separate environmental 

document requirements for the same project and 

therefore generating undue cost and process. A revision 

to require acceptance by other agencies of already 

approved and accepted FHWA environmental 

documents could generate cost and time savings.

Recommendations for Modification/Elimination:

The CFR could be amended to require federal landowning agencies to accept the environmental document 

already approved and accepted by FHWA for the project, 

and issue its letter of consent without conducting a 

separate environmental document. This amendment 

would save state DOTs time and therefore money.

Montana DOT Each federal agency must comply with its own 

NEPA procedures when taking a federal action. 

Both CEQ and FHWA regulations already 

encourage early coordination and adoption of 

environmental documents when appropriate. 

FHWA does not have authority to require another 

federal agency to accept our NEPA decision. 

Any change of that nature would be statutory.

23 CFR 750.106 

& 23 CFR 

750.108 & 23 

CFR 154, 

outdoor 

advertising

FHWA Issue: Outdated. This is a policy written for 1970's 

technology and should be updated to address 21st 

century technologies.

Recommendations for Modification/Elimination:

If FHWA has approved electronic billboards, this should 

be written into the regulations, instead of contained In a 

Memo which is not readily available to the public or to 

state regulatory agencies. One of the purposes of this 

review is to Identity regulations that need revision to 

address changes in technology, and reconsider 

regulations that were based on scientific information that 

has been superseded. These regulations on "moving 

Montana DOT Interpretations of existing long-standing laws and 

regulations have been necessary, since the 

statute has not been updated. In the future, new 

regulations could be developed with a public 

involvement process, if statutory changes are 

made. No regulatory action planned.
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parts" and "flashing and moving lights" were written for 

1970s technology, and should be updated to address 

21st century technology.

23 CFR 750 

Subpart A, 

outdoor 

advertising

FHWA Issue: outdated and not applicable to all states. This 

results in confusion with the public. Consider repealing.

Recommendations for Modification/ Elimination:

Evaluate whether the bonus program is viable or 

necessary and if not, eliminate the program and repeal 

23 CFR Part 750 Subpart A, which addresses standards 

for the 1958 Bonus Program only, and 23 CFR 750.713 

which addresses the existence of the bonus program.

Montana DOT A statutory change would be required to 

implement this proposal.

23 CFR 750 

Subchapter D, 

outdoor 

advertising

FHWA Issue: conflicting amongst regulation, opinions, and court 

decisions have occurred regarding use of amortization or 

cash as just compensation for acquisition of signs

Recommendations for Modification/ Elimination:

FHWA should clarify current regulations to set forth its 

position on use of amortization or cash as j u s t 

compensation for acquisition of signs. State and local 

laws may unknowingly be out of compliance with the 

federal position, because of the many conflicts In current 

federal regulations, opinions and court decisions.

Montana DOT Federal law is clear on non-applicability of 

amortization in sign control issues. Statutory 

changes would be needed to implement this.

23 CFR 771.113, 

alternative 

neutral activities

FHWA Add a provision to allow a state to proceed with 

alternative neutral activities with approval by FHWA, for 

example:

"(6) A State may proceed with alternative neutral 

activities with approval by FHWA"

WSACE 

(IdeaScale)

FHWA has already adequately addressed this 

issue though its issuance of Order 6640.1A, 

FHWA Policy on Permissible Project Activities 

During the NEPA Process, in October 2010. No 

regulatory action necessary.

23 CFR 650.311, 

inspection 

frequency

FHWA Allow a state to submit a bridge inspection program 

establishing inspection frequency that supersedes the 

frequencies in current code. The program would be risk 

based and consider design of structure, construction 

materials, load ratings, observed conditions, and public 

safety.

WSACE 

(IdeaScale)

FHWA concurs in the concept of establishing 

bridge inspection frequencies based on rational 

criteria and is participating in an NCHRP project 

to explore development of a methodology to 

apply a risk/reliability approach to establishing 

inspection frequencies. FHWA believes a more 

rational approach to setting inspection 

frequencies would enable bridge owners to focus 

resources on bridges most in need of attention. 

No regulatory action planned.

MPO Planning FHWA Many MPOs are encountering State interpretations of Community The existing regulations require the proposed 
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requirements planning regulations dealing with financial constraint that 

suggest that the financial information from project 

sponsors in the TIP needs to include the exact location 

of the funding sources.

This is a requirement that an MPO cannot verify or 

monitor, and it also potentially hampers the ability of a 

local sponsor to respond to financial situations and move 

funding where necessary. Essentially, funding sources 

are an issue between the states (who have funding 

agreements with local project sponsors) and local 

government. It would streamline and make more easy 

the financial constraint reviews if the issue were clarified 

and simplified.

Member 

(IdeaScale)

funding source be identified in the STIP/TIP. This 

is a key part of demonstrating fiscal constraint of 

the STIP/TIP. States and MPOs do have the 

flexibility to change the proposed funding source 

administratively in the TIP/STIP without an 

amendment or update. FHWA/FTA will consider 

opportunities for developing and issuing clarifying 

guidance or information in the future. No 

regulatory action planned.

23 CFR 635.114, 

award of contract 

and concurrence 

in award 

FHWA Modify when concurrence in award is required. This is 

largely a bureaucratic step that rarely, if ever, results in a 

change to an award, but usually adds 2 weeks to the 

bureaucratic process. The regulation should be modified 

to provide for concurrence in award only when there is a 

discrepancy in or problem with the bid -- an unbalanced 

bid, failure to adhere to DBE goals, etc.

Community 

Member 

(IdeaScale)

FWHA’s statutory requirement under 23 U.S.C. 

112(a) to “. . . require such plans and 

specifications and such methods of bidding as 

shall be effective in securing competition” carries 

through to the review of bids, bid responsiveness, 

and the award of contract. FHWA award 

concurrence is a key element to FHWA oversight 

in this area. No regulatory action planned.

23 CFR 636.201, 

design build 

selection 

procedures

FHWA 23 C.F.R. § 636.201 allows the FHWA to use two distinct 

types of design-build project delivery methods, the twophase and single-phase selection procedures. Federal 

law limits every agency to one design build project 

delivery method, the two-phase selection process. See 

Design-build selection procedures, 41 U.S.C.A. § 3309 

(recodified by Pub.L. 111-350, Jan. 4, 2011, 124 Stat. 

3677). FHWA should repeal § 636.201 and conform the 

agency’s project delivery methods to the requirements of 

the public contract laws enacted by Congress.

American 

Society of Civil 

Engineers 

(IdeaScale)

The cited Federal statute has no applicability to 

the Federal-aid highway program. The provisions 

in 23 USC 112 and 23 CFR Part 636 apply.

23 CFR 

655.603(a), use 

of term bicycle 

trail

FHWA 23 CFR 655.603(a): CFR text refers to the term "bicycle 

trail" as falling under the application of the MUTCD. The 

definition of "trail" encompasses a wide variety of facility 

types, from rugged mountain "singletrack" to wide 

engineered paved pathways. The current wording could 

be interpreted as requiring MUTCD-compliant signs and 

Community 

Member 

(IdeaScale)

The FHWA will take this comment into 

consideration during the next full update of the 

Manual on Uniform Traffic Control Devices.
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markings on unpaved and rough hiking and mountain 

biking trails, which would be inappropriate, expensive, 

prone to vandalism, and creating serious visual and 

environmental impact. Revise "bicycle trail" to "bikeway" 

to be consistent with the wording on Page I-1 of the 2009 

MUTCD.

Other power 

driven mobility 

devices

FHWA How to implement the new regulations allowing 

OPDMDs on bicycle and pedestrian facilities not 

designed for large, gas-powered vehicles and devices. 

The concerns are safe use of these devices for trail 

users and potential damage to the trail itself.

Community 

Member 

(IdeaScale)

FHWA will revise 23 CFR 652 after the next 

authorization, to incorporate any revisions in 23 

U.S.C. 217 and other relevant sections of 

legislation. We will incorporate language 

consistent with the US Department of Justice 

regulation on other power driven mobility devices. 

Meanwhile, States may use FHWA’s Framework 

for Considering Motorized Use on Nonmotorized 

Trails and Pedestrian Walkways under 23 U.S.C. 

§217 to develop policies related to other power 

driven mobility devices. No current regulatory 

action planned.

23 CFR 252.13 -

AASHTO guide 

for bicycle 

facilities

FHWA 23 CFR 652.13: Still refers to 1981 edition of the 

AASHTO Guide for Development of New Bicycle 

Facilities. AASHTO should be issuing the new (2011-

2012?) edition of this design reference in the next 9-12 

months. Change 652.13 to refer to the "most recent 

edition" of the Bike Guide, or change reference to the 

newest edition after publication by AASHTO.

Community 

Member 

(IdeaScale)

FHWA will revise 23 CFR 652 after the next 

authorization, to incorporate revisions in 23 

U.S.C. 217 and other relevant sections of 

legislation. No current regulatory action planned.

23 CFR 658 

Appendix A, 

Arizona Route 

Designation 

Changes

FHWA 23 CFR 658 Appendix A, Arizona: Route designations in 

this table have been made obsolete by changes in 

designations by AASHTO and Arizona DOT, and need 

updating. Specifically:

Line 2: AZ 70 should be US 70

Line 6: US 80 has changed to SR 80

Line 7: This line needs to be replaced by 2 lines, reading: 

AZ 77, I-10 Tucson, AZ 79 Oracle Junction and AZ 79, 

AZ 77 Oracle Junction, US 60 Florence Junction

Line 8: US 89 has changed to AZ 89

Community 

Member 

(IdeaScale)

In order to make this change the AZ DOT would 

need to submit to the AZ FHWA Division Office a 

change request. The AZ Division Office would 

verify that they are not adding any new roads, but 

are simply redesignating existing roads on the 

National Network (NN) and then the FHWA would 

publish a technical amendment through the 

Federal Register process. Without the further 

request of the AZ DOT, no independent 

regulatory action is planned.
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Lines 13-15: All segments of US 666 have changed to 

US 191

Line 16: US 89 has changed to AZ 89

Line 19: Delete "(via AZ 85 Spur)" - SR 85 now runs 

directly to I-10

Line 25: US 89 has changed to AZ 79

Line 26: AZ 360 has changed to US 60

NOTE: Before finalizing this or other new or revised 

regulations affecting roadways on the State Highway 

System in Arizona, please consult with Arizona 

Department of Transportation Multimodal Planning 

Division to verify current route designations and 

statuses.

CMAQ FHWA The 3 year operating limit for carpool and vanpool 

projects contained in the CMAQ guidance (not law or 

regulations) should be eliminated.

Community 

Member 

(IdeaScale)

The goal of the CMAQ program is to contribute to 

air quality improvement. We have consistently 

provided start-up costs and three-years of 

operational support for new or expanded 

systems. Support beyond that level is analogous 

to maintenance which is a State or local 

responsibility (23 USC 116).

Bike/Ped 

Guidance

FHWA Retain and strengthen the guidance on the meaning of 

“due consideration” of bicyclists and pedestrians, which 

says “bicyclists and pedestrians should be included as a 

matter of routine, and the decision to not accommodate 

them should be the exception rather than the rule.”

America Bikes, 

National 

Complete 

Streets 

Coalition

FHWA intends to retain this guidance. The US 

DOT Policy Statement on Bicycle and Pedestrian 

Accommodation Regulations and 

Recommendations released in March 2010 

reemphasized the need to provide safe and 

convenient transportation facilities for pedestrians 

and bicyclists. No regulatory action planned.

23 CFR 1.33; 49 

CFR 18.36(b)(3)

FHWA Disagrees with FHWA policy opposing allowing the same 

firm to provide both design and construction engineering 

services. Commenter believes this is a legitimate 

business practice. 

National 

Society of 

Professional 

Engineers

The FHWA will investigate the potential need for 

clarifying guidance on how FHWA’s conflict of 

interest provisions (23 CFR 1.33) pertain to the 

consultants providing services in different phases 

in developing and implementing highway 

improvement projects using Federal-aid highway 

program funding. No regulatory action is planned 

at this time.
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23 CFR Part 172, 

Consulting 

engineering & 

construction 

contracts

FHWA Prepare a document, similar to FHWA Form 1273 used 

for construction contracts, to be used by FHWA and FTA 

for consulting engineering contracts.

Issue: Unclear and complex making state compliance 

difficult to achieve. An entire audit guide has been 

developed by AASHTO to help in the understanding of 

these rules because they are not clear. In addition, the 

rule requires auditors to perform the overhead audits in 

accordance with GAO auditing standards. There are 

other more cost-effective options that should be 

explored.

APWA. 

Montana DOT

FHWA does not require a form similar to Form 

1273 for consultant services projects due to 

Federal laws focusing primarily on the 

qualification based selection process. 

This suggestion would require Federal legislation 

to change the current provisions in law (23 U.S.C. 

112 (b)(2)(B and C)) which currently requires an 

indirect cost rate to be developed in accordance 

with the cost principles contained in the Federal 

Acquisition Regulations (48 CFR 31) on any 

contract or subcontract awarded for engineering 

and design related services using Federal-aid 

Highway Program funding on projects directly 

related to a construction project. 

No regulatory action is planned at this time.

23 CFR 450.210, 

public meetings

FHWA The regulations state that “to the maximum extent 

practicable ensure that public meetings are held at 

convenient and accessible locations and times” – holding 

traditional public meetings for planning has been 

relatively ineffective as a means for obtaining public 

involvement or comment. A later section of the 

regulations encourages use of electronic means for 

providing public information, but the requirement for 

public meetings still stands.

Recommendation:

This is outdated for most areas and should be done at 

the discretion of the DOT or MPO and the approaches to 

be used should be documented in the DOT or MPO 

public involvement plan but not dictated at the Federal 

level.

AASHTO, 

Colorado DOT

In the event that a public meeting is held, the 

DOT or MPO must, by statute and regulation: “to 

the maximum extent practicable ensure that 

public meetings are held at convenient and 

accessible locations and times.” This topic is the 

subject of pending litigation and no regulatory 

action is planned at this time.

23 CFR 656 FHWA Carpools and Vanpools currently have a gap in coverage 

of incentives for not-for profit, non-profit, and government 

agencies. The Commuter Benefit Program provides good 

incentive for these activities with reimbursements and tax 

credits for taxable organizations, but there is no provision 

to provide reimbursement or incentive for untaxed 

entities. Some sort of program should be added to 

provide incentive for these organizations to participate.

Missouri DOT The FHWA will investigate this comment further 

to assess the scope of the issue raised, however, 

it has not found this to be an issue of significant 

concern and no regulatory action is planned at 

this time.
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Categorical 

exclusions

FHWA Issue a guidance document or regulation clarifying the 

use of the CE for NEPA, and actively educate and 

encourage compliance with the current CE regulation to 

expedite project delivery.

Promote CE best practices within FHWA divisions, state 

DOTs, and regional & local agency staff to help eliminate 

barriers

America Bikes The FHWA does not believe a regulatory change 

is necessary to implement this change. We will 

reach out to America Bikes for more information 

on its best practices.

23 CFR 

635.204(c); 

Force account 

work

FHWA 23 USC 112(b) allows the use of the force account 

method of contracting. However, FHWA’s interpretation 

of rules [23 CFR 635 Subpart B] governing the use of 

force account contracting has severely restricted the use 

when force account work.

The law and rules allow force account work when it is 

determined to be cost effective. 23 CFR 635.204, 

Determination of More Cost Effective Method or an 

Emergency, establishes the process for making a 

determination that force account construction is cost 

effective. Section 635.205, Finding of Cost Effectiveness, 

defines work that is considered to be cost effective for 

force account construction due to its “inherent nature” or 

to protect the “rights and responsibilities of the 

community at large.” The adjustment of railroad or utility 

facilities are given as examples that are cost effective 

due to their inherent nature.

FHWA has interpreted Section 635.205 Finding of Cost 

Effectiveness as the only conditions under which work by 

force account can be allowed. The FHWA interpretation 

renders Section 635.204(c) moot. FHWA guidance 

further states that “any noncompetitive construction 

contract method requires a cost effectiveness 

determination as well as an evaluation that demonstrates 

circumstances are unusual and unlikely to recur.” The 

“unusual and unlike to recur” condition is not supported 

by statute. 23 CFR 635.204(a) states “Congress has 

expressly provided that the contract method based on 

competitive bidding shall be used by a State 

transportation department or county for performance of 

AASHTO, 

Community 

Member (Idea 

Scale)

The FHWA is currently preparing an internal 

directive to clarify FHWA’s policy on force 

account work. A change in the consultant 

selection process would require revisions to 23 

U.S.C. 112 and 113. No regulatory action is 

needed or planned at this time.
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highway work financed with the aid of Federal funds 

unless the State transportation department 

demonstrates, to the satisfaction of the Secretary, that 

some other method is more cost effective or that an 

emergency exists.” The law does not require the state to 

demonstrate that conditions are unusual and unlikely to 

recur.

Significant time and cost savings can be achieved 

though a greater allowance of force account contracting 

in accordance with Section 635.204(c).

Recommendation:

Allow force account contracting when the conditions of 

23 CFR 635.204(c) are met.

It has been our experience that the force account rule is 

applied unevenly within and among FHWA Division 

Offices. Better standards are needed in order to define 

when force account construction may be used. There are 

many "small dollar" programs such as Safe Routes to 

Schools and Transportation Enhancements which do not 

necessarily lend themselves to a full contract process.

I would suggest that FHWA consider some lowerthreshold approvals of force account construction, 

perhaps using categories similar to NEPA (i.e. 

categorically exempt, programmatically exempt) or 

exempt under a certain dollar amount. Safe Routes to 

Schools and Transportation Enhancements would be two 

great programs to start with.

Remove barriers 

to delegation of 

the 

Environmental 

review process 

FHWA, FTA, 

OST/P

FHWA should allow States to assume USDOT 

responsibilities without reducing flexibility to acquire 

right-of-way and perform design work prior to the 

completion of the NEPA process. 

AASHTO This proposal is not recommended. Judicial 

decisions on whether certain types of 

implementation activities carried out by a State 

violated NEPA focus on whether the activities 

have adverse environmental effects, limit the 

choice of alternatives, or bias the decisionmaking process. The cases typically have held 

that the actions by the State did not violate NEPA 

because of FHWA’s role as the ultimate NEPA 

decision-maker. This separation of roles made 
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unbiased decision-making possible. With FHWA 

removed from the process, the State would be 

deciding whether its action violated NEPA by 

biasing the decision-making process. This would 

create a conflict of interest.

23 CFR Part 752, 

Rest areas

FHWA, 

FMCSA, 

OST-P

Give State DOTs greater flexibility to offset costs of 

maintaining rest stops that would include allowing 

additional goods and services to be sold other than items 

that are dispenses from vending machines. 

Allow the installation of electric power stations at rest 

stops so that motorists can recharge their electric/hybrid 

vehicles, provided costs can be sufficiently recouped.

Allow privatization of Rest Areas to help states keep rest 

areas open for truckers and the motoring public (to 

address safety concerns), as well as to help preserve 

funding for other transportation needs.

Illinois DOT, 

AASHTO

Current law does not allow fees to be assessed 

for charging electric vehicles in Interstate rest 

areas.

State DOTs are required to comply with the 

current provisions in laws (23 U.S.C. 111(a) and 

23 U.S.C. 131) which restrict the ability to 

advertise and provide commercial services within 

the right-of-way of the Interstate System. 

The FHWA believes a statutory change would be 

required to implement this proposal and no 

regulatory action is planned at this time.

NEPA/ARRA FHWA, FRA, 

FTA

Currently FRA, FHWA, and FTA each have their own 

regulations regarding application of NEPA, and

currently, for projects awarded funding under the 

ARRA, FRA is not authorized to accept NEP A 

documents completed under the authority of other modal 

agencies. 

It would be prudent and more timely if FRA could accept 

these documents approved by other modal 

administrations as fulfilling NEP A requirements with just 

the addition of an addendum covering any specifics that 

FRA requires. This would greatly expedite the 

review/approval process for some of the ARRA projects 

which have already cleared NEP A under either FHW A 

or FT A.

NC DOT

Also submitted 

by David Foster

FHWA and FTA have the same NEPA regulations 

at 23 CFR 771. FRA can adopt FHWA and/or 

FTA NEPA documentation in accordance with 

CEQ regulations and supplement them as 

needed to fulfill FRA requirements to complete 

their NEPA review. No regulatory action planned.

NEPA/CEs FHWA, FRA, 

FTA

FHWA regulations allow CEs from a list of specific 

project types, and they also allow CEs for projects not 

listed specifically, but that with a minimal amount of 

documentation can be shown appropriate for the CE 

status (often referred to as "documented CEs"). FRA 

regulations do not currently allow this type of CE, It 

would be very expedient to modify FRA regulations to 

NC DOT

Also submitted 

by a 

Community 

Member

FHWA does not have purview over FRA’s NEPA 

procedures. Action would need to be taken by 

FRA to modify their procedures for processing 

Categorical Exclusions.
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allow "documented CEs"

Shift federal 

focus to the 

outcome of 

delivery of 

transportation 

benefit

FHWA, FTA providing for universal pre-award spending to state and 

local entities; clarifying the transportation improvement 

program amendment process; extending NEPA 

delegation authority; removing redundant steps in the 

environment review process; and providing for modular 

or scenario-based conformity determinations

Orange County 

Transportation 

Authority

This comment presents a list of several 

recommendations that require more details for an 

appropriate consideration of what specifically is at 

issue here. The Transportation Improvement Plan 

(TIP) amendment process is described in detail in 

23 CFR 450.326, 450.324, and 450.104. 

Encourage 

federal and state 

or local project 

managers to 

team together for 

project 

performance

FHWA, FTA ability to enter into project and program delivery 

partnering plans; establishment of “prompt action” 

provisions at key decision points in the project approval 

process; establishment of a partnering award program to 

positively reinforce project action; creation and funding of 

liaison positions to move projects though decision 

chokepoints; and expansion of use of the joint permitting 

process.

OCTA These recommendations can be accomplished 

administratively. No regulatory action planned.

Part 450 FHWA, FTA DOT should require State DOTs and MPOs to improve 

reporting on transportation funding decisions and 

outcomes with the stated objective of achieving 

transparency of and convenient public access to 

information about the use of federal surface 

transportation funding.

DOT’s planning regulations currently require states and 

MPOs to provide certain information to the public but the 

lack of a stated purpose or clear expectations leads to 

inconsistent application of these requirements around 

the country. This situation can be addressed by using 

the model set by Administration management and 

reporting on ARRA (White House memorandum M-09-

10). Like past ARRA reporting systems, data should be 

compiled, organized and made available on the internet 

through a plain-English website (Recovery.gov is a good 

model). Beyond that, a new federal surface 

transportation performance monitoring and reporting 

website should have built-in provisions for data access 

and analysis. A comprehensive glossary should be 

provided and data reporting from all agencies and 

grantees should be standardized to support both routine 

reports and ad hoc investigation. Greater transparency 

about the use of federal transportation funds will allow all 

users of the transportation system to monitor progress 

Reconnecting 

America

Currently, the planning statute and regulations 

only require MPOs to publish a list of the projects 

for which funds under Title 23 or Title 49/Chapter 

53 were obligated in the preceding program year. 

No regulatory action planned.
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and identify inefficient or uncoordinated uses of federal 

funding.

Part 450 FHWA, FTA DOT should improve consolidated planning process 

between federally required long-range transportation, 

housing and environmental plans. Working closely with 

HUD, DOT should issue guidance to State DOTs and 

MPOs on ways to improve coordination between state 

and regional long-range transportation plans and 

federally-required consolidated housing plans. The 

implementation of HUD’s Sustainable Communities 

grants will be an important opportunity for DOT to work 

with selected communities, particularly through DOT 

regional offices, to identify best practices as well as 

potential barriers and data needs from MPOs, transit 

agencies, and state DOTs, with an eye towards 

achieving a more simplified and consolidated planning 

process. Such a process will reduce inefficiencies at the 

local and regional level stemming from uncoordinated 

federal planning requirements.

Reconnecting 

America

FHWA and FTA have started to work with HUD to 

better align planning and program activities, for 

example as part of the TIGER II grants. Through 

the DOT/HUD/EPA partnership, it is an area we 

are continuing to explore. It is important to 

emphasize, however, that because FHWA and 

FTA do not approve the transportation plans of 

States and MPOs, the agencies will need to rely 

upon non-binding guidance for promoting more 

fully coordinated plans and planning processes. 

No regulatory action planned.

Part 450 FHWA, FTA A modern, integrated budgeting tool for local and state 

project sponsors under FHWA would dramatically 

improve both program oversight and project spendout 

monitoring. These two tasks (budgeting and spendout 

monitoring) are currently being accomplished with the 

TIP/STIP documents and the Fiscal Management 

Information System (FMIS). The TIP/STIP amendment 

process is clumsy and not designed to take into account 

final bids on projects, change orders, and other facts of 

life in the project implementation world. Meanwhile, 

project sponsors are unable to easily monitor the 

relationship between their budgeted projects in the 

TIP/STIP and their obligated amounts in FMIS. Local 

project sponsors at a special disadvantage here because 

of their sub-grantee relationship with state DOTs. A 

further issue if the requirement for all federal funding 

changes to be accomplished by amendment to the 

TIP/STIP. While it is important to disclose these 

changes, the process of amending the TIP during project 

bidding and implementation can cause confusion and 

undue burden on agencies. Further, the use of the TIP 

to in effect monitor the budget for transportation projects 

NYC DOT Integration of the STIP/TIP with FMIS may be 

desirable and is the prerogative of the States and 

MPOs, however, it is not adopted as a 

requirement due to the complexities and technical 

capacity that would be involved. The current 

regulation provides flexibility to States/MPOs to 

set criteria for determining whether changes to 

cost and schedule of projects should be effected 

as “administrative modifications.”

Mapping is an effective approach to 

communicating the information associated with 

projects in the plan and TIP/STIP. However, it is 

not an administrative requirement because of the 

wide range of technical capabilities of MPOs and 

States precludes imposition of a technical 

standard.

No regulatory action planned.
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on a regional basis is typically a clumsy operation 

because of the multiple agencies involved. We 

recommend that the TIP/STIP be made more easily 

amendable if it is to be used continually as a budgeting 

document for federal funding.

Finally, to maximize transparency, all projects in the 

federal program should be mapped in an accessible way 

for the public and for partner agencies through FMIS.

NEPA process FHWA, FTA, 

OST

Remove redundant steps in the current system of 

processing EISs in sequence. Modernize 

communication techniques built on internet based 

systems. Also recommend revisions to CEQ regulations

OCTA The recommendation requires more details for an 

appropriate consideration. Revisions to CEQ 

regulation are not in the purview of FHWA.

Planning, NEPA 

and design 

processes (Sec. 

106, Sec. 4(f) 

and Sec. 404)

FHWA, FTA, 

OST/P

DOT should maximize the overlapping of sequential 

project stages to incorporate planning decisions and 

documentation in NEPA and to maximize advancement 

of design detail to support NEPA. 

DOT should maximize overlapping FHWA, FRA and FTA 

NEPA practices. 

DOT should strengthen assurance that planning 

decisions will have standing in NEPA documents. 

DOT should help states maximize concurrency and 

eliminate redundancy of environmental processes 

conducted to support NEPA documents.

AASHTO The comment does not provide any specific new 

regulatory proposal for our consideration.

Development and 

application of 

programmatic 

solutions

FHWA, FTA, 

OST/P

DOT should:

1) include clear regulatory language indicating that 

programmatic approaches are the standard way of 

conducting business.

2) provide maximum flexibility in the development of 

programmatic categorical exclusions. 

3) expand funding and support for “in-lieu” fees for 

conservation banking and programmatic mitigation for 

natural and cultural resource impacts.

4) allow the states, through programmatic agreements, 

to conduct legal sufficiency reviews.

AASHTO Efforts are underway within the FHWA’s Every 

Day Counts initiative, NCHRP and pending 

program work which can be accomplished under 

existing authority and eligibilities

Current regulation makes legal sufficiency an 

FHWA/FTA determination and the only clear 

authority for delegating the decision is under 23 

U.S.C. 327.

Reliance on 

Transportation 

Planning-Level 

Decisions 

FHWA, FTA, 

OST/P

FHWA should develop specific regulatory language 

allowing FHWA to adopt in the NEPA process, decisions 

made in the transportation planning process, with regard 

to both purpose and need and the range of alternatives. 

AASHTO This suggestion would be most effectively 

accomplished by statutory revision. In Appendix 

A to the February 14, 2007, Planning 

Regulations and in 23 CFR 450.212 and 450.318, 

the regulations speak to using planning 

information from corridor or subarea planning 
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studies to produce purpose and need, and to 

develop and conduct preliminary screening of 

alternatives and elimination of unreasonable 

alternatives.

23 CFR 771.111(a)(2) states that the information 

and results provided by, or in support of, the 

transportation planning process may be

incorporated into environmental review 

documents in accordance with 40 CFR 1502.21 

and 23 CFR 450.212 or 450.318.

Designating One 

Lead USDOT 

Agency

FHWA, FTA. 

OST/P

FHWA should work with other DOT agencies to establish 

one USDOT agency as lead agency to approve plans, 

studies and/or projects with multiple agency involvement. 

Other impacted USDOT administrations would then 

participate as cooperating agencies.

AASHTO This suggestion could be carried out currently. It 

would involve coordination and agreement by the 

other DOT agencies, and would depend on the 

details of the project. No regulation action is 

required.

Consultation on 

Methodology and 

Level of Detail. 

(Section 6002 

environmental 

review process )

FHWA, 

FTA.,OST/P

FHWA should clarify that the requirement for agency 

consultation on issues of "methodology and level of 

detail" should be conducted during the scoping phase of 

the project, when methodologies are being developed. 

Additional consultation would only be necessary for large 

changes in project methodologies and/or level of detail. 

AASHTO FHWA guidance on the implementation of 

Section 6002 states that the communication on 

methodology and level of detail should be done 

as part of the scoping process.

At-Risk Detailed 

Design Prior to 

NEPA 

Completion

FHWA, 

OST/P

Flexibility is needed so that the State DOTs may 

continue to move forward with the project development 

process in a timely fashion using both federal and nonfederal funding – at their own financial risk – prior to the 

finalization of the NEPA process. 

AASHTO This proposal is not recommended. Judicial 

decisions on whether certain types of 

implementation activities carried out by a State 

violated NEPA focus on whether the activities 

have adverse environmental effects, limit the 

choice of alternatives, or bias the decisionmaking process. The cases typically have held 

that the actions by the State did not violate NEPA 

because of FHWA’s role as the ultimate NEPA 

decision-maker. This separation of roles made 

unbiased decision-making possible. With FHWA 

removed from the process, the State would be 

deciding whether its action violated NEPA by 

biasing the decision-making process. This would 

create a conflict of interest.

23 CFR 646.212, 

Federal share

FHWA/FRA Issue: Ambiguous, needs clarification. This CFR 

addresses Railroad-Highway Projects and when federal 

funds would be eligible to participate in grade separation 

projects to provide space for more tracks. It requires 

Montana DOT The FHWA will investigate this comment further 

to assess the scope of the issue raised, however, 

it has not found this to be an issue of significant 

concern and no regulatory action is planned at 
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demonstration of "definite demand and plan" which is not 

defined and subject to interpretation. The percentage of 

funding that must be provided by the railroad companies 

is also unclear. A more definite statement of the 

reasonable time frame as 5, 10 or 20-year plan is also 

needed.

Recommendation:

The CFR could be amended to express "definite demand 

and plan" as an adequate engineering study including: 1) 

signature by a registered engineer; 2) provision of 

statistical analysis and other data that confirms there is a 

"definite demand"; 3) showing the proposed future track 

alignment under the highway overpass; 4) the time of 

future expansion; and 5) providing documentation the 

railroad company will commit funds for their future tracks. 

A more definite statement of the reasonable time frame 

as 5, 10 or 20-year plan is also needed.

Secondly, the CFR could be amended to define the 

percentage or portion of the improvement funding, if any, 

which must be provided by the railroad company.

this time.

23 CFR Part 771 FHWA/FRA/ 

FTA

Allow a single modal administration's findings under 

NEPA to cover all modes without adoption by other 

administrations.

Allow grantees to pursue separate environmental 

findings where multiple projects are planned spanning a 

number of years 

Extend the "shelf life" of environmental documents

Specifically:

23 CFR 771.107 - amend to note that an "action" may 

be a single project in a more extensive program

23 CFR 771.129 - add seven year "shelf life" of EAs and 

EISs 

23 CFR 771.133 - specifically note one DOT operating 

administration's approval is binding on all DOT 

APTA FHWA, FTA, and/or FRA often coordinate on 

multi-modal projects. The FHWA and FTA 

regulations address early coordination 

procedures (23 CFR 771.111). This allows for 

the concurrent development of NEPA 

documentation and environmental review, and 

development of a mutually acceptable process on 

a project case-by-case basis to enable each 

agency to make NEPA and project approvals on 

the proposed action. The regulations allow for 

environmental document “shelf-life” and “actions” 

to be defined as multiple projects or a single 

project, as appropriate and to meet other NEPA 

and program implementation requirements.
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administrations

23 CFR part 810 FHWA/FTA ACT has a specific regulatory criticism as it regards 23 

CFR Part 810. ACT members utilizing federal funding in 

support of TDM programs are generally receiving that 

funding from Title 49 Chapter 53 funds or from Title 23 

under the Congestion Mitigation and Air Quality 

Improvement Program (CMAQ). In reviewing the Title 23 

regulatory components of the program, it is clear these 

regulations have not been recently updated, notably 

when still including references to UMTA. The majority of 

the administrative work in conforming to current practice 

and needs is contained in guidance. ACT would strongly 

recommend that the Department look to conforming the 

regulatory structure and rules between Title 23 CMAQ 

and Title 49 Chapter 53 such that entities seeking 

funding in either or both of those two parts are able to 

adequately and effectively respond to program eligibility 

requirements.

Association for 

Commuter 

Transportation

By statute, the Federal transit program may fund 

any eligible transit project. By statute, the CMAQ 

program may fund only certain types of transit or 

highway projects that reduce pollutant emissions. 

The differing purposes of the transit and CMAQ 

programs and the differing precepts of eligibility 

for the two programs are what necessitate the 

different rules and guidance for the two programs. 

The commenter’s suggestion would require 

statutory changes, not regulatory changes.

23 CFR 627.207; 

QA/QC 

Guidelines

FHWA/FTA Concerned that FHWA and FTA quality assurance 

regulations and guidance are inconsistent.

National 

Society of PEs

FHWA has authority under 23 CFR 637 B to 

prescribe policies and procedures for materials 

and construction quality assurance in Federal-aid 

projects, but no such authority has been granted 

to FTA. Our regulations strive to ensure that 

inspectors and testing laboratories are qualified. 

We don’t require that the laboratories be 

supervised by a Professional Engineer (PE); 

rather these results are then utilized by the State 

agency as part of their overall assurance effort. 

FTAs guidelines typically are limited to dealing 

with selection of consultant services.

23 CFR Part 810 FHWA/FTA The regulatory structure between title 23 Community 

Multiscale Airmodeling Quality (CMAQ) and title 49 

chapter 53 should be aligned such that entities receiving 

funding from both of these titles can apply the same 

standards to projects 

Association for 

Commuter 

Transportation 

(ACT)

No change recommended. States have the 

flexibility to transfer CMAQ funds for transit use to 

FTA, and Title 49 requirements would then be 

applied.

CMAQ FHWA/FTA Require that transit projects eligible under title 23 CMAQ 

be administered by the FTA under title 49 chapter 53

ACT No change recommended. As noted above, 

States can transfer CMAQ funds to FTA. 

Requiring a transfer could present issues for 

some quasi-transit projects, e.g. school bus 
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diesel retrofits.

CMAQ FHWA/FTA Change air quality regulations to adopt a modular or 

scenario approach to conformity. Establish through 

interagency MOU an initiative to minimize unnecessary 

delay due to iterative conformity determinations while 

encouraging recipients to build the capacity to undertake 

necessary analyses. A "Test & Evaluation" approach 

could be initiated jointly by FHWA and FTA with EPA to 

test the feasibility of such modeling & administrative 

procedures, and in the meantime, allow recipients to 

receive timely conformity approval.

OCTA Defer to EPA. The conformity regulation is within 

the purview of the Clean Air Act. 

NEPA/Programm

atic agreements

FHWA/FTA Expand the availability and use of programmatic 

agreements for additional CEs and focus on consistent, 

prompt review/approval. Also recommends revisions to 

CEQ regulations.

OCTA This comment involves suggestions for the 

promotion of guidance. Therefore, specific 

response is not required in this context.

Revisions to CEQ regulations are not in the 

purview of FHWA.

NEPA/23 CFR 

625.309

FHWA/FTA Allow property to be acquired concurrently with the 

contract procurement process, even concurrent with 

project construction for more than projects under unusual 

circumstances through a time consuming approval 

process.

Amend regulation as follows to streamline project 

delivery:

23 CFR 635.309 (c)(3) The acquisition or right of 

occupancy and use of a few remaining parcels is not 

complete, but all occupants of the residences on such 

parcels have had replacement housing made available to 

them in accordance with 49 CFR 24.204. The State may 

request authorization on this basis only in very unusual 

circumstances. This exception must never become the 

rule. Under these circumstances, advertisement for bids 

or force-account work may be authorized if FHWA finds 

that it will be in the public interest. The physical 

construction may then also proceed, but the State shall 

ensure that occupants of residences, businesses, farms, 

or non-profit organizations who have not yet moved from 

the right-of-way are protected against unnecessary 

inconvenience and disproportionate injury or any action 

Maine DOT Current regulations provide minimum safeguards 

for those impacted by a Federal Aid project. 

Requirements ensure that displaced occupants 

vacate a project area prior to construction while 

also allowing for exceptions when warranted. 
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coercive in nature. When the State requests 

authorization to advertise for bids and to proceed with 

physical construction where acquisition or right of 

occupancy and use of a few parcels has not been 

obtained, full explanation and reasons therefore 

including identification of each such parcel will be set 

forth in the State's request along with a realistic date 

when physical occupancy and use is anticipated as well 

as substantiation that such date is realistic. Appropriate 

notification shall be provided in the bid proposals 

identifying all locations where right of occupancy and use 

has not been obtained.

23 CFR 

774.13/4(f)

FHWA/FTA Change the exception for temporary occupancies of land 

to add flexibility while obtaining the same result, as 

follows:

(d) Temporary occupancies of land that are so minimal 

as to not constitute a use within the meaning of Section 

4(f). The following conditions must be satisfied:

(1) Duration must be temporary, i.e. , less no longer than 

the time needed for construction of the project, and there 

should be no change in ownership of the land;

Maine DOT The FHWA does not agree with this suggestion. 

If property is needed for duration of construction, 

the project need would seem to be more than 

temporary. No regulatory action necessary.

Financial 

systems & 

timelines

FHWA/FTA Projects funded under both FTA and FHWA programs 

must be reflected in states’ STIPs. The two modal 

administrations have very different processes, 

terminology, timelines, and in some cases, preferences 

for how projects are represented in STIPs. This requires 

states to spend extra time weeding through two different 

and distinct sets of requirements. This is particularly 

problematic with the requirements that revolve around 

financial and information systems and we are often 

forced to hand enter project data and to specially 

manipulate data to wedge FTA projects into STIPs. The 

same planning laws apply to both highway and transit 

projects yet requirements associated with them vary by 

modal administration.

Recommendation:

Processes, timelines, information systems, and other 

process‐related requirements imposed by all modal 

administrations should be the same. Consistency in the 

requirements of all federal modal administrations

AASHTO FHWA and FTA have joint statutory and 

regulatory requirements and timelines for how 

projects are represented in the STIP/TIP. 

Projects are entered into the STIP/TIP prior to 

obligation of funds and entry of project 

information into financial and information 

systems.
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23 CFR 771.117, 

categorical 

exclusion

FHWA/FTA Routine state of good repair projects within existing 

ROW/transit property that are routinely granted CE 

status after submitting documentation for approval 

should be moved to the list of projects in subsection (c) 

to save time & money & be consistent with the intent of 

subsection (e). 

Review projects of a recurring nature for inclusion under 

subsection (d)

American 

Public Transit 

Association 

(APTA)

As part of consideration of the new CEQ 

guidance on CEs, FHWA will consider adding 

and/or revising CEs. No regulatory action 

planned.

23 CFR 771.113, 

categorical 

exclusion

FHWA/FTA Increase flexibility in projects eligible for CEs. Limiting 

projects to 30% design completion before issuing 

environmental findings delays projects & makes them 

more expensive, without benefit to the environment. For 

routine projects 30% barrier delays work rather than 

allowing it to continue concurrently with environmental 

review. For complex projects, necessary data often is 

not reasonably available until design has evolved beyond 

30%.

Practices under 23 CFR 771.113 should be updated to 

specifically allow the design process to continue during 

the course of environmental review and to allow 

issuance of design-build contracts in advance of 

environmental findings.

APTA, General 

Contractors 

Assn of NY 

repeated this 

comment

FHWA has already addressed this issue though 

its issuance of Order 6640.1A, FHWA Policy on 

Permissible Project Activities During the NEPA 

Process, in October 2010. No regulatory action 

planned.

23 CFR part 771, 

review time

FHWA/FTA Update to include concrete timelines for DOT review of 

environmental documents

APTA The recommendation requires more details for 

appropriate consideration.

23 CFR Part 771, 

4(f)

FHWA/FTA The “4(f) process” is the common reference to 

environmental review under 49 USC 303. The process 

protects, inter alia, historical properties and 

archaeological resources. In these two aspects, the 4(f) 

process is redundant with section 106 of the National 

Historic Preservation Act (NHPA), as well as a host of 

state and local statutes. These overlapping statutes lead 

to duplication of efforts and increased costs without 

affording additional protection to the properties and 

resources they are designed to protect. This is most 

evident in projects that include rehabilitation of historic 

stations or other transit infrastructure.

To ease this burden without compromising 

environmental protection, DOT should revise 23 CFR 

APTA Section 4(f) law includes publicly owned historic 

properties and a statutory change would be 

required. However, for the particular project type 

cited, “rehabilitation of historic train stations or 

other transit infrastructure”, FHWA’s Section 4(f) 

policy paper allows for instances when Section 

4(f) would not apply to these projects such as “in 

the case of restoration, rehabilitation or 

maintenance of historic transportation facilities 

(e.g. railroad stations and terminal buildings 

which are on or eligible for the National Register). 

Section 4(f) only applies when the facility will be 

adversely affected (36 C.F.R. 800.5) by the 

proposed improvement.” No regulatory action 
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Part 771 to affirmatively accept any finding under NHPA 

section 106 as satisfying the requirements of the 4(f) 

process as the latter relates to historical properties and 

archaeological resources.

planned.

NEPA process FHWA/FTA DOT should be required to act on project approvals 

within a set deadline

General 

Contractors 

Association of 

NY

The recommendation requires more details for 

appropriate consideration.

CMAQ FHWA/FTA In areas of high transit use, improvements to transit 

facilities will help retain high transit mode share -

improving air quality

Projects that improve the transit environment and help 

attract new customers/retain existing riders should be 

automatically eligible for CMAQ funding & should not 

have to be subject to case by case review and eligibility 

determination by FHWA

General 

Contractors 

Assn of NY

No change is recommended. Improvements to 

transit can be defined in many different directions, 

e.g. operational support. We have consistently 

limited such operational support to start-up plus 

three years. Removing the Federal review would 

not necessarily streamline project development 

and may diminish the positive impact of CMAQ 

transit projects on air quality. No regulatory 

action planned.

23 CFR 

450.218(a)

FHWA/FTA Recommend changing the sentence to read at least 

every two years, the State shall submit

an updated STIP, for the same reasons included in the 

comment on 450.216 (a).

Hampton 

Roads TPO

States and MPOs are required update the 

STIP/TIP at least once every 4-years. They may 

update the STIP/TIP more frequently if 

necessary. Any change to the 4-year minimum 

STIP/TIP cycle in regulation would require a 

change in statute.

Interdepartmental 

coordination 

FHWA/FTA/

OST

DOT should take a leading role in working through interagency coordination on transportation projects that 

require multi-departmental reviews, perhaps by requiring 

agreements between DOT agencies and other regulatory 

agencies that would establish documentation and 

timeframes for reviews required to meet all federal 

environmental and resource agency requirements

General 

Contractors 

Assn of NY

This suggestion could be carried out currently 

and is supported by FHWA by Section 6002 of 

SAFETEA-LU and related guidance. It would 

involve coordination and agreement by the other 

DOT agencies and resource agencies and would 

depend on the details of the project. No 

regulatory action planned.

29 CFR 3, Davis 

Bacon 

regulations

FHWA/FTA/ 

FAA

Requirement to submit weekly payroll from contractors 

and subcontractors is burdensome.

Recommendation:

Revise regulations to provide for receipt for certification 

only, without weekly payrolls, with periodic monitoring of 

wages paid

AASHTO This is a US Department of Labor regulatory 

requirement. 

Small project 

procedures

FHWA/FTA/F

AA/FRA

To minimize process on small projects, allow States and 

Local Public Agencies to follow State procurement 

requirements and waive certain federal requirements.

• Eliminate the requirement for receiving federal 

Maine DOT • A defined project scope and estimated 

cost are necessary for any authorization 

prior to incurring costs.

• Buy America requirements are statutory 
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authorizations along the way and just have one 

authorization up front;

• Eliminate the "Buy America" on these projects;

• Automate CE process (if even need it) or if have a 

federal environmental permit, let them complete NEPA 

and CE;

• Increase the threshold for the need for "Davis Bacon" 

rates to coincide with these projects;

• Allow States to determine levels of material testing.

Look at the finished product being the only real 

measuring stick for whether the project was successful. 

Communities would need to agree that they would not 

seek additional funding to fix any future issues for a set 

time frame (they own the responsibility for the elimination 

of process).

not discretionary.

• Davis-Bacon threshold ($2,000 / contract) 

is set by statute.

23 CFR 637 already provides for states to set 

levels of material testing based on an approved 

quality assurance plan.

Also, small purchase procedures (as specified in 

23 CFR 172.5(e)) exist for engineering and 

design related services contracts with a total cost 

below the lesser of the Federal simplified 

acquisition threshold (currently established at 

$150,000) or the State’s established threshold. 

For small purchase procurements, State and local 

public agencies must also follow the applicable 

State’s laws, regulations, and procurement 

procedures.

State and local agencies do not have the 

authorization to waive Federal requirements.

One NEPA 

finding within 

DOT

FHWA/FTA/F

RA

FHWA, FRA & FTA should allow a single modal 

administration's finding under NEPA to be automatically 

accepted by all other DOT modal administrations 

General 

Contractors 

Assn of NY

FHWA, FTA, and/or FRA often coordinate on 

multi-modal projects. The FHWA and FTA 

regulations address early coordination 

procedures (23 CFR 771.111) to allow for the 

concurrent development of NEPA documentation 

and environmental review and development of a 

mutually acceptable process on a project caseby-case basis to enable each agency to make 

NEPA and future project approvals on the 

proposed action.

Ensure 

Continued Use of 

Recycled Coal 

Combustion 

Residuals (such 

as Coal Ash) for 

Transportation 

Uses

FHWA/OST P The US Environmental Protection Agency (EPA) is 

considering two options to regulate Coal Combustion 

Residuals (CCRs). The first option would list CCRs as a 

special waste when destined for disposal at surface 

impoundments or landfills, which could reduce or 

eliminate their use by stigmatizing them as a category of 

“hazardous waste.” Under this proposal, CCRs would 

be regulated under subtitle C of RCRA. The second 

option would list CCRs as special waste; CCRs would 

AASHTO This is a proposed EPA action to list coal 

combustion residuals (including fly ash) as a 

hazardous material subject to cradle to grave 

Subtitle C RCRA regulations.

In 2010, EPA posted two co-proposals in the 

federal register for comment. These two 

proposals included one alternate that would 

require fly ash to be handled as a hazardous 
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be regulated by issuing national minimum criteria. 

Under this option, EPA would regulate CCRs under 

subtitle D of RCRA.

material, and the second alternate would allow fly 

ash to be used as it is today (with increased 

guidelines for large disposals).

49 CFR Part 395 FMCSA ARTBA believes the HOS regulations should not apply to 

drivers in the transportation construction industry. 

American Road 

& 

Transportation 

Builders 

Association 

(ARTBA)

The Agency believes section 345 of the National 

Highway System Designation Act of 1995 

provides sufficient relief from the HOS 

requirements for the construction industry. 

The statute provides a 24-hour restart to the 

weekly HOS limits. By contrast the restart for 

other motor carriers of property must be at least 

34 consecutive hours. 

The Agency does not believe it would be 

appropriate to consider additional regulatory relief 

from the HOS regulations for the construction 

industry, beyond what Congress has already 

provided. 

49 CFR 393.67 FMCSA The ATA believes FMCSA should rescind its safety 

regulations concerning liquid fuel tanks used on CMVs. 

The ATA argues that NHTSA should address fuel tank 

standards in the FMVSSs

ATA FMCSA believes it would be inappropriate to 

consider rescinding 49 CFR 393.67, at this time. 

Section 393.67 provides the only Federal 

regulations that fuel tank manufacturers use as 

minimum requirements for the design, testing and 

manufacture of CMV fuel tanks. The regulation 

does not impose on motor carriers the 

responsibility for the actual design and testing of 

fuel tanks and as such the existing requirements 

should not be construed as a regulatory burden 

on motor carriers.

Because NHTSA’s Federal Motor Vehicle Safety 

Standards do not cover fuel tanks, the removal of 

the requirement would leave a void in Federal 

regulations for fuel tanks on heavy trucks and 

buses.

49 CFR Part 382 FMCSA OOIDA requested that FMCSA allow a performancebased, two-tier controlled substances testing program. 

Under this program, drivers who test negative on 5 

consecutive random controlled substances tests and 

who have never had a positive DOT controlled 

substances test based on 49 CFR Part 40, would be 

OwnerOperator 

Independent 

Drivers 

Association 

(OOIDA)

The Agency does not believe it would be 

appropriate to consider a rulemaking to change 

the standards that apply to all motor carriers 

employing commercial driver’s license holders, at 

this time. And, administering the controlled 

substances requirements under these 
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removed from the pool of drivers subject to a 50 percent 

random testing pool. These drivers would be placed in a 

separate pool subject to a 25 percent random testing 

rate.

OOIDA recognized that FMCSA might be reluctant to 

abandon the current random controlled substances 

testing program without evidence that a performancebased alternative would be more effective. The group 

suggested that FMCSA consider a pilot program in 

accordance with 49 Part 381, the Agency’s regulations 

concerning waivers, exemptions and pilot programs. 

circumstances would be impracticable 

considering the population of interstate and 

intrastate carriers.

The Agency does not agree with OOIDA’s 

suggestion for a pilot program. Because a pilot 

program would be intended to set the stage for a 

potential change to the regulations, the outcome 

of the pilot program would still leave unresolved, 

the difficulty in administering on an industry-wide 

basis, a performance-based alternative to the 

current 50-percent testing rate requirement. 

49 CFR 390.23 FMCSA Union Pacific requested that FMCSA amend its 

emergency relief provision under 49 CFR 390.23 so that 

railroad workers who are responding to emergencies 

such as derailments be included under the relief from the 

HOS rules

Union Pacific 

Railroad

The FMCSA acknowledges Union Pacific’s 

concerns. In 2007 and 2008, FMCSA officials met 

with representatives of the Emergency Rail 

Service Restoration Coalition to discuss the 

applicability of the Federal Motor Carrier Safety 

Regulations (FMCSRs) to operators of 

commercial motor vehicles (CMVs) responding to 

assist at train derailment sites. 

The FMCSA continues to believe that its current 

regulations include appropriate relief for workers 

engaged in certain derailment recovery activities. 

49 CFR Part 395 FMCSA NPGA stated that the propane industry is a seasonal 

industry with its greatest demand occurring in the winter 

or peak season (October through March). The group 

explained that FMCSA’s emergency relief regulations, 49 

CFR 390.23, allows for relief from the HOS regulations 

when there is an emergency declared by an appropriate 

Federal or State officials. NPGA believes that a 

permanent exemption from the HOS regulations should 

be provided for propane delivers within a 100 air-mile 

radius.

National 

Propane Gas 

Association

The FMCSA acknowledges NPGA’s concerns 

about the delivery of propane. However, the 

Agency does not believe it would be appropriate 

consider, at this time, relief from the HOS rules 

beyond what Congress enacted in section 4147 

of SAFETEA-LU. 

Section 4147 provides that certain FMCSA 

regulations, including HOS requirements, shall 

not apply to a driver of a commercial motor 

vehicle which is used primarily in the 

transportation of propane winter heating fuel or a 

driver of a motor vehicle used to respond to a 

pipeline emergency if such regulations would 

prevent the driver from responding to an 
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emergency condition requiring immediate 

response. 

49 CFR 382.107 FMCSA OSTODAPCSuggests removing the term “actual knowledge” of drug 

or alcohol use from the list of grounds for finding a 

violation of the FMCSA rules.

Roxanne Wyant

(Public meeting 

comment – no 

docket 

submission)

If an employer learns reliably that a covered 

employee has engaged in conduct otherwise 

prohibited by the regulations, relating to use of 

illegal drugs or abuse of alcohol, it is fully 

consistent with the safety objectives of the 

regulation for the employer to treat that 

information as the basis for a violation of the 

rules, even if no drug or alcohol test had 

occurred.

Although FMCSA does not plan a stand-alone 

regulatory action on this item, the public will have 

the opportunity to address this issue in the 

forthcoming rulemaking to establish a controlled 

substances and alcohol testing positive test 

results database. The NPRM is currently planned 

for publication by the end of 2011.

49 CFR Part 209 FRA SRC contends that FRA’s exercise of safety jurisdiction 

is applied unevenly because certain plant railroads that 

are confined to an industrial installation are exempt from 

FRA’s safety jurisdiction, even though their rail 

operations may be more robust than railroads that are 

subject to FRA’s safety jurisdiction.

SRC As stated in the 49 CFR Part 209 Appendix A 

(Policy Statement), FRA has chosen as a matter 

of policy not to impose its regulations on certain 

categories of rail operations including plant 

railroads that do not provide service to other 

clients. FRA has limited rail resources, and 

based upon its knowledge of where the safety 

problems occur, it concluded that excluding plant 

railroads from its jurisdiction would help to 

conserve its limited resources without hindering 

safety. Moreover, FRA’s decision to restrict the 

exercise of its authority in no way constrained the 

exercise of its statutory emergency order 

authority under 49 U.S.C. 20104, which is 

designed to address imminent hazards of death 

or injury.

Plant railroads that provide rail service to other 

entities may request relief from FRA’s safety 

regulations, pursuant to FRA’s waiver procedures 

that are set forth in 49 CFR Part 211, with a 
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showing that a waiver is in the public interest and 

consistent with railroad safety.

FRA is contemplating a clarification to the Policy 

Statement that would further explain its reasoning 

for the above conclusion.

49 CFR Part 209 FRA SRC contends that there should be a distinction among 

public highway-rail grade crossings, i.e. based on traffic, 

when considering whether a tourist operation is insular 

and therefore not subject to FRA’s jurisdiction. It 

suggests that certain highway-rail grade crossings 

present fewer risks than others.

SRC A tourist operation is considered insular if its 

operations are limited to a separate enclave in 

such a way that there is no reasonable 

expectation that the safety of any member of the 

public – except a business guest, a licensee of 

the tourist operation or an affiliated entity, or a

trespasser – would be affected by the operation.

FRA has chosen not to exercise its jurisdiction 

over insular tourist operations because of the 

more limited risks that face the public as a result 

of the confined features of these types of 

operations. To the contrary, a tourist railroad that 

operates over a public highway-rail grade 

crossing that is in use is subject to certain of 

FRA’s safety regulations and all of the 

substantive provisions of the rail safety statutes 

because of the reasonable expectation that the 

safety of a member of the public could be 

affected.

While there are varying degrees of risk to the 

public based upon the characteristics of the 

highway that is crossed by a tourist railroad, risks 

to the public still exist at all highway-rail grade 

crossings, thereby necessitating FRA’s exercise 

of jurisdiction over those types of operations.

Nonetheless, the regulated industry may request 

relief from FRA’s safety regulations, pursuant to 

FRA’s waiver procedures that are set forth in 49 

CFR Part 211, with a showing that a waiver is in 

the public interest and consistent with railroad 

safety.

Given the flexibility built into the Policy Statement, 

FRA does not believe that it is necessary to 
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revise this aspect of the Policy Statement at this 

time.

49 CFR Part 209 FRA SRC asserts that FRA does not always consider the 

financial, operational, or other factors that may be unique 

to tourist operations when determining whether a 

particular rule will apply to a tourist operation.

SRC As stated in the Policy Statement, even though 

FRA asserts broad jurisdiction over tourist 

operations, it works to ensure that the rules it 

issues are appropriate to the circumstances of 

the tourist railroad industry. For example, FRA 

does not exercise jurisdiction over insular tourist 

railroads, and it applies a limited number of its 

regulations to non-insular tourist railroads.

Additionally, FRA has excluded all tourist 

railroads from certain of its regulations, i.e. 49 

CFR Parts 238 and 239 (passenger equipment 

safety standards and passenger train emergency 

preparedness). Moreover, the regulated industry 

may request relief from FRA’s safety regulations, 

pursuant to FRA’s waiver procedures that are set 

forth in 49 CFR Part 211, with a showing that a 

waiver is in the public interest and consistent with 

railroad safety.

Given the flexibility built into the Policy Statement, 

FRA does not believe that it is necessary to 

revise this aspect of the Policy Statement at this 

time.

49 CFR Part 172 FRA UP comments that while it supports the training of 

employees who encounter hazardous materials in the 

workplace, the current regulatory language defining all 

railroad maintenance-of-way employees and railroad 

signalmen as “hazmat employees” is general, vague, allencompassing, and its application is over-reaching. UP 

adds that the term “function specific” and the additional 

training these employees require should be re-examined 

and more clearly defined to include only railroad 

employees with job functions that truly require “functionspecific” training. As an example, UP states that under 

the current regulations, a truck driver is a “hazmat 

employee” who requires function-specific training, when 

his only encounter with hazardous materials is filling the 

truck with diesel fuel. 

UP The Hazardous Materials Transportation 

Regulations that UP has commented on are 

promulgated by DOT’s Pipeline and Hazardous 

Materials Safety Administration. The regulatory 

inclusion of railroad maintenance-of-way 

employees and railroad signalmen in the 

definition of “hazmat employee” and the 

requirement for hazmat training were statutorily 

mandated changes included by Congress in the 

Hazardous Materials Safety and Security 

Reauthorization Act of 2005 (Title VII of Pub. L. 

109-59, 119 Stat. 1144 (August 10, 2005)). 

PHMSA made these Congressionally mandated 

changes to its regulations in a final rule published 

on December 9, 2005. 70 FR 73156. Because 

the definitions are established by statute, neither 
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PHMSA nor FRA may change them by regulatory 

action. 

PHMSA’s December 9, 2005 final rule specifically 

provided that “function-specific training is not 

necessary for railroad maintenance-of-way 

employees and railroad signalmen who do not 

perform functions specifically regulated under the 

HMR.” 70 FR at 73156. Under 49 CFR 

172.704(e), such railroad maintenance-of-way 

employees and railroad signalmen are excepted 

from function-specific training. A UP employee 

who is not a maintenance-of-way employee or 

railroad signalman, who only drives a truck and 

does not otherwise perform any activities 

regulated under the HMR probably does not fall 

under the definition of “hazmat employee,” and 

therefore would not be required to have hazmat 

training. As the agency responsible for 

interpreting the HMR, PHMSA is best positioned 

to provide an answer to any specific questions 

that UP may have about those regulations. 

49 CFR Part 395 FRA UP finds FMCSA hours of service regulations in 49 CFR 

§ 395.3 problematic as applied to railroad employees 

who occasionally drive trucks as part of their duties.

UP The hours of service laws for railroad employees 

that are enforced by FRA (49 U.S.C. ch. 211) 

establish limitations on the hours of service of 

railroad employees who perform the functions of 

a train employee, a dispatching service 

employee, or a signal employee, as those terms 

are defined in 49 U.S.C. § 21101, and FRA has 

neither statutory nor regulatory authority to 

address the hours of service of employees 

performing other functions who happen to work 

for a railroad carrier, and does not take a position 

on the FMCSA regulations to the extent that they 

might apply to railroad employees performing 

other functions.

Because individuals who engage in installing, 

repairing, or maintaining signal systems are 
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defined as signal employees, those individuals 

are not subject to FMCSA regulations for any 

duty tour in which they perform these functions, 

even if they also operate a commercial motor 

vehicle within the duty tour. Instead, under 49 

U.S.C. § 21104(e), those employees are subject 

to 49 U.S.C. § 21104’s restrictions on the hours 

of service for signal employees.

FRA is aware that individuals who are generally 

considered signal employees may operate a 

commercial motor vehicle and not perform the 

functions of a signal employee in a given duty 

tour, which could arguably result in these 

employees not being covered by any hours of 

service limitations. 

49 CFR Part 228 FRA SRC disagrees with a provision of FRA’s hours of 

service recordkeeping regulations (49 CFR § 228.19) 

requiring railroad to report when employees have 

initiated on-duty periods on consecutive days in excess 

of the statutory maximum permitted, which it says are not 

appropriate to the short line and regional railroad 

operating environment.

SRC The recordkeeping regulation at issue merely 

requires the reporting of activities that constitute 

service in excess of the statutory limitations 

provided in 49 U.S.C. § 21103, governing the 

hours of service for train employees. Because 

the statute prohibits requiring or allowing an 

employee to go or remain on duty after initiating 

an on-duty period for six or seven consecutive 

days until that employee has had the necessary 

hours off duty at his or her home terminal, FRA 

requires railroads to report when an employee 

has violated that statutory prohibition. However, 

the substantive limitations to which the 

commenter objects are statutory, and FRA does 

not have the authority to change them.

The RSIA granted FRA authority to establish 

substantive hours of service requirements for 

train employees providing commuter and intercity 

rail passenger transportation, and FRA published 
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an NPRM on March 22, 2011, proposing such 

requirements and proposing to revise the 

corresponding recordkeeping requirements 

accordingly. The substantive hours of service 

limitations for freight railroads are still statutory 

and they will not be changed as a result of this 

rulemaking, nor will the relevant recordkeeping 

provisions necessary to determine compliance 

with the statutory requirements. 

49 CFR Part 40 FRA UP claims that the direct observation requirements for 

follow-up drug testing in 49 CFR Part 40 add additional 

costs to the testing process, strain the employeremployee relationship, and are not necessary.

UP FRA has incorporated 49 CFR Part 40 into its 

alcohol and drug testing regulations at 49 CFR § 

219.701. However, Part 40 is a regulation 

published by the DOT Office of the Secretary 

(OST), and FRA does not have the authority 

either to amend the regulation or to issue 

authoritative interpretations on its requirement. 

49 CFR Part 218 FRA UP comments that 49 CFR § 218.22(c)(1) should be 

updated to include remote control operators. The 

comment also states § 218.22(c)(5) should be revised to 

allow utility employees to perform additional functions.

UP UP’s comment requesting that § 

218.22(c)(1) be updated to include remote control 

operators is already addressed by existing 

regulations. First, via 49 CFR Part 240, 

necessarily a remote control operator is a 

locomotive engineer. Next, with reference to 

UP’s comment regarding the “need for a crew 

member to be in the cab,” FRA currently permits 

remote control operations that utilize utility 

employees. FRA is willing to discuss this issue 

with UP further, or potentially provide a more 

formal interpretation if necessary.

UP’s comment states 49 CFR § 

218.22(c)(5) should be amended to permit utility 

employees to perform any duties of a train 

person. However, as discussed in the preamble 

to the final rule implementing § 218.24, even train 

persons are also limited in the duties they are 

able to perform without blue signal protection.

See 60 FR 11047, 11049 (Mar. 1, 1995). Section 

218.22(c)(5) already largely encompasses the 

duties that any train person would be asked to 
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perform in the assembly, disassembly or 

classification of rail cars or operation of trains.

49 CFR Part 218 FRA SRC comments that 49 CFR Part 218’s minimum 

requirements for railroad operating rules and practices 

are unnecessary, as their own railroad operating rules 

are sufficient and did not need to be “federalized.”

SRC Part 218 of title 49 of the CFR was amended in 

2008. The 2008 amendments were completed 

with industry participation with the assistance of 

the RSAC. Part 218 was amended after the 

occurrence of a high number of human factor 

caused railroad accidents. In response, FRA 

issued Emergency Order No. 24 and 

subsequently codified (See 73 FR 8442) many of 

the requirements of that Order at Subpart F of 

part 218. The final rule established

greater accountability on the part of

railroad management for administration

of railroad programs of operational tests

and inspections, and greater

accountability on the part of railroad

supervisors and employees for

compliance with those railroad

operating rules that are responsible for

approximately half of the train accidents

related to human factors. 

Since taking those actions and federalizing 

certain additional railroad operating rules, FRA’s 

data shows human factor caused accidents have 

been reduced precipitously.

Part 218 was promulgated by FRA in 1976 after

Congress mandated that FRA issue rules on the 

subject of certain railroad operating practices. 

The Federal Railroad Safety Authorization Act of 

1976, Pub. L. 94-348. The “purpose” statement 

at 49 CFR 218.1 that SRC refers to was 

published as a part of the initial implementation of 

Part 218. 41 FR 10904 (Mar. 15, 1976). As that 

section states, Part 218 only establishes 

minimum requirements, railroad operating rules 

may, and often do, impose more stringent 

requirements than does FRA. 
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The SRC’s comment specifically references 

having to perform “banner checks”. However, on 

small railroads such as the SRC where often 

trains may operate exclusively at restricted speed 

on uncontrolled track, banner checks are one of 

the only methods available to ensure locomotive 

engineers are operating at the appropriate 

speeds to be able to avoid train collisions. From 

a safety perspective, FRA views this particular 

type of operational test as extremely critical.

49 CFR Part 217 FRA SRC states that operational tests should not be required 

to be conducted, as their own skills testing approach is 

more effective.

SRC FRA disagrees with SRC’s suggestion. The SCR 

references the requirements of 49 CFR 217.9(a) 

in its comment, which was amended to its current 

form in a 2008 rulemaking which was 

promulgated with the assistance of the RSAC. 73 

FR 8442 (Feb. 13, 2008). Thus, the railroad 

industry participated in that rulemaking. The 

requirement that railroad’s perform operational 

tests has been in place via FRA regulations since 

the 1970s, and is one of the cornerstones of 

helping to ensure that railroad employees comply 

with both applicable Federal safety regulations 

and railroad operating rules.

The final rule implementing the Federal 

regulations governing the use of electronic 

devices by railroad operating employees took 

effect on March 28, 2011. 75 FR 59580 (Sept. 

27, 2010). This final rule also requires that 

operational tests be performed on that specific 

regulation. FRA received extensive docket 

comments from the industry while promulgating 

that final rule, none of which objected to the 

incorporation of the long standing requirement 

that operational tests be performed, into this new 

regulation. See Docket No. FRA 2009-0118 at 

www.regulations.gov. 

49 CFR Part 223 FRA SRC believes that FRA routinely ignores one of the 

exemptions from its Safety Glazing Standards—

specifically, § 223.3(b)(3), which exempts “locomotives, 

SRC FRA believes that it correctly applies the 

exemptions from the application of the Safety 

Glazing Standards. If the exemption applies, 
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passenger cars and cabooses that are historical or 

antiquated equipment and are used only for excursion, 

educational, recreational purposes or private 

transportation purposes.”

FRA considers the equipment exempted. 

FRA has provided guidance to its personnel on 

applying this specific exemption so that rail 

equipment is consistently treated in the same way 

for every railroad. For example, FRA’s guidance 

clarifies what is meant by “historical” or 

“antiquated” equipment—terms that could 

otherwise be open to much interpretation. SRC 

may simply have its own interpretation of the 

exemption. FRA welcomes further discussion of 

this issue. FRA plans to raise this issue with

RSAC for participants’ comments.

49 CFR Part 231 FRA SRC argues that all locomotives available on the market 

today are equipped with stairways in compliance with 

sections 231.29 and 231.30.

SRC FRA agrees that locomotives available on the 

market today are equipped with stairways in 

compliance with sections 231.29 and 231.30. 

However, FRA believes that the regulation is 

needed to ensure that locomotives remain 

equipped. If the regulation were eliminated, 

manufacturers could build new locomotives that 

don’t meet today’s standard. That would result in 

an unsafe condition. 

49 CFR Part 225 FRA The railroad requires every employee to see a doctor; 

therefore, they are concerned that minor injuries are 

being treated the same as severe injuries. In addition, 

they would like FRA to update its reporting software for 

ease of reporting.

SRC It appears that the commenter may have 

misunderstood FRA regulations. FRA current 

reporting requirements require railroads to report 

only those injuries and illnesses that meet the 

general reporting criteria listed in section 225.19. 

Requiring that the injury or illness meets the 

general reporting criteria (e.g., medical treatment, 

death, and loss of consciousness) ensure FRA is 

not capturing minor injuries or illness. Rather

these injuries and illnesses are supposed to be 

substantial enough to require the creation of a 

paper trail. 

The Miscellaneous Amendments to Federal 

Railroad Administration’s Accident/Incident 

Reporting Requirements; Final Rule, 75 FR 

68862, allow for electronic reporting and 

submission of data. The purpose of this change, 
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in addition to many of the other changes 

implemented by this final rule, is to ease the 

reporting burden for the railroads. 

49 CFR Part 225 FRA UP is concerned that FRA’s new Form 150 will be overly 

burdensome on the railroad and ineffective because 

people will not want to respond.

UP Existing regulations require railroads to conduct 

accident and incident investigations. The Form 

150 will ensure that the investigations are 

conducted in a manner that will illicit specific 

information that will be helpful to the investigation. 

FRA does not believe that the form is overly 

burdensome. 

Pursuant to the current reporting requirements, 

railroads are required to ensure “complete and 

accurate reporting” of casualties. In order to fulfill 

this requirement, they should already be 

contacting individuals who were potentially 

injured by an event or exposure arising from the 

operation of the railroad to determine if they 

suffered a reportable injury. Moreover, they 

should be obtaining sufficient information to 

complete the Form FRA F 6180.55a and to 

provide FRA with casualty severity information. 

However, FRA has discovered that railroads 

routinely do not follow up with potentially injured

highway users.

FRA’s Miscellaneous Amendments to Federal 

Railroad Administration’s Accident/Incident 

Reporting Requirements; Final Rule, 75 FR 

68862, do not create a new duty with regard to 

following up with potentially injured highway users 

in order to determine whether they sustained a 

reportable injury. Rather, the final rule requires 

that the railroad use the newly created Form FRA 

F 6180.150 and an accompanying cover letter to 

contact a potentially injured highway user and, if 

unsuccessful, to contact the highway user by 

phone. The preamble to the final rule explains 

that FRA understands that highway users often 

will not respond to these requests; however, the 

railroad is obligated to make a good faith attempt 
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to obtain this information. Moreover, FRA 

believes that the forms, in addition to a cover 

letter, which meets the requirements set forth in 

the final rule, are meant to encourage individuals 

to respond. Finally, if the railroad is unable to 

obtain information either in writing or by phone, it 

must make a good faith determination about 

reportability based upon the information that is 

available. 

Whistleblower 

Complaints

FRA AAR comments that OSHA’s Occupational Safety and 

Health Review Commission has before it cases in which 

the issue is whether an employee believing the 

whistleblower protection statute, 49 USC 20109, has 

been violated can pursue remedies under both the 

Railway Labor Act and before OSHA. AAR believes that 

having simultaneous proceedings does not make sense.

AAR FRA does not have authority to change OSHA’s 

proceedings. The issue has been the subject of 

litigation that is still pending before the 

Department of Labor.

49 CFR Part 213 FRA Amtrak states that inspection frequencies should be 

based on track conditions and other risk factors, such as 

the degree of right-of-way security, rather than track 

class. Fewer inspections should be required as the 

condition and security of track improve. Increasing the 

frequency of inspections based on track class alone is 

costly and unnecessary if increases in track class and 

higher speeds are accompanied by new trackage (or 

trackage that is in very good condition) and security 

enhancements.

Amtrak FRA does recognize the importance of right-ofway security for the overall safety of a railroad 

system, and right-of-way safety plans are 

required by section 213.361 for operations on 

track Classes 8 and 9. Yet, FRA does not believe 

that these measures should themselves be used 

to reduce the inspection frequencies in Part 213, 

especially given the potential for defective 

conditions to develop that are wholly independent 

of any right-of-way security enhancements. 

Proper inspection of track is essential to safety.

Track does not deteriorate at a constant rate.

Factors such as freezing and thawing can cause 

track conditions to change rapidly, even for new 

track that has recently been laid.

Track inspection frequencies have been based on 

operating speed because of its relationship to the 

derailment risk for a given condition. The higher 

the train speed, the higher the associated risk.
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49 CFR Part 213 FRA AAR notes that automated track geometry inspection 

equipment can detect deviations that visual inspections 

cannot, such as tight gage defects that deviate only 1/16” 

from FRA’s requirements. (Gage refers to the lateral 

distance between the two rails comprising a section of 

track.) If such an actual tight gage deviation is found, 

operating speeds need to be reduced to 10 mph until the 

condition is remedied. Yet, the AAR is unaware of any 

derailment attributable to tight gage.

AAR FRA’s safety limit for tight gage is based on limits 

for wheel spacing that have been established by 

the AAR and enforced by the AAR’s interchange 

rules. When both back-to-back wheel spacing 

and wheel flange thickness are at their 

permissible maximums, there is little flange 

clearance, if any, when the track gage is at FRA’s 

minimum safety limit of 56 inches.

In order to prevent derailment, the limits on gage 

have to be compatible with the allowable 

wheelset dimensions. Tighter gage (of less than 

56 inches) may result in either wheel climb or the 

failure of track components due to large wheel rail 

forces, or both. Both of these conditions 

represent derailment criteria.

There is no accident reporting cause code 

assigned to tight gage in FRA’s accident 

database, and that is why there is no information 

that specifically identifies an accident caused by 

tight gage. However, this does not mean that no 

track-related accident has been attributable to 

tight gage. For instance, tight gage is 

undoubtedly a causal factor in many “wheel 

climb” derailments

49 CFR Part 213 FRA AAR states that FRA regularly issues citations for 

violations of its requirements for guard check gage and 

guard face gage in a frog (which is the crossing point of 

two rails). Yet, the AAR believes that the current 

standards are too stringent and provide no clear safety 

benefit, and that it is unaware of a derailment that has 

ever been attributable to a violation of these standards. 

AAR The purpose of these limits on guard check gage 

and guard face gage is to help ensure that 

wheels follow the appropriate flangeway through 

the frog and that trains do not derail. As in the 

case of FRA’s limits for tight gage, these limits 

are also based on AAR’s own limits for wheel 

spacing and have to be compatible with them.

While there may not be data showing that these 

gage conditions were specifically the cause of an 

FRA-reportable derailment, FRA’s accident 

database documents numerous derailments that 

have been attributable to worn or broken frogs.

Guard face and check gage deviations increase 
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the likelihood that wheels will contact the frog 

tip/point—rather than be guided safely through 

the flangeway—resulting in chipped, worn, and 

broken frogs.

49 CFR Part 236 FRA AAR disagrees with the method by which FRA calculates 

the frequency of its required monthly signal inspections, 

and asserts that they are too costly and don’t take into 

consideration new technology, specifically, electronic 

health monitoring systems.

AAR As stated in FRA’s Technical Bulletin S-04-01, 

FRA has taken the position that its longstanding 

requirements for monthly signal and grade 

crossing tests mandate that such tests be 

performed at least once every 30 or 31 days. 

This Technical Bulletin was supported by a legal 

interpretation that was issued by FRA’s Chief 

Counsel, in response to a 2004 request from CSX 

Transportation, Inc., for a written statement of 

FRA’s position on this issue. 

FRA believes this position facilitates the timely 

testing and inspection of safety-critical devices at 

regular intervals to ensure these devices are able 

to perform their intended functions and, if they are 

not, that they are removed from service. FRA’s 

longstanding requirements for monthly testing of 

signal and grade crossing systems are intended 

to impose minimum standards to ensure the 

safety of railroad operations. However, the 

regulated industry may request relief from these 

required monthly testing requirement, pursuant to 

FRA’s waiver procedures set forth in 49 CFR Part 

211, upon the presentation of adequate safety 

data to justify additional flexibility. 

FRA has already indicated that it might be willing 

to entertain a request for waiver relief based upon 

the proffered use of real time electronic health 

monitoring of safety-critical elements of grade 

crossing warning systems.

49 CFR Part 236 FRA Amtrak asserts that three specific regulatory provisions 

(49 CFR §§ 229.21, 236.586, and 238.311) contain 

requirements to perform mechanical inspections on the 

“next calendar day” and/or “within 24 hours”. Amtrak 

asserts that these terms are used interchangeably, but 

do not have a consistent meaning in each instance. 

Amtrak For the sake of consistency with FRA’s other test 

and inspection requirements contained in 49 CFR 

Parts 234 and 236, FRA believes that the daily or 

after-trip test required by section 236.586 should 

be performed once every 24 hours or within 24 
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Thus, depending on the context, these terms could be 

interpreted to mean 23 hours and 59 minutes or up to 47 

hours and 59 minutes.

hours before departure on each trip. 

49 CFR Part 234 FRA SRC asserts that railroads that routinely operate at 

restricted speed (which requires the engineer to operate 

the train in a manner that would allow him/her to stop the 

train short of any danger, obstruction, or other hazard) 

should be exempt from the requirement contained in 49 

CFR § 234.9 to report each activation failure of a 

highway-rail grade crossing warning system within 15 

days.

SRC FRA requires the submission of a written or 

electronically generated activation failure report 

within 15 days of the occurrence of an activation 

failure, so that FRA can maintain comprehensive 

records of activation failures that occur at 

highway-rail grade crossings nationwide. The 

information presented by these records is then 

evaluated and analyzed for a variety of safetyrelated purposes, in order to improve the 

reliability of active warning systems to operate 

properly and as intended, and therefore the 

overall level of grade crossing safety. 

By giving railroads 15 days within which to 

compile and submit this information, FRA 

attempted to minimize the reporting burden on 

railroads, while providing sufficient time within 

which to provide as comprehensive a report as 

possible.

Aside from the speed of rail operations, there are 

a number of factors that influence the level of risk 

at a highway-rail grade crossing, such as the 

speed and volume of motor vehicle traffic, the 

presence of sight distance obstructions, and the 

use of the crossing by hazardous material 

carriers, school buses, and emergency response 

vehicles. 

Regardless of the speed of rail operations at the 

crossing and possible lower level of risk of a train 

striking a vehicle when the train is being operated 

at a slow speed, the loss of warning provided by 
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the active warning devices at a highway-rail 

grade crossing could result in a collision caused 

by a motor vehicle striking the side of even such 

a slow-moving train.

Review of FRA’s activation failure statistics 

reflects that the SRC has not filed an activation 

failure report within the last 20 years inclusive of 

2010. Therefore, any potential burden that may 

have been imposed by this reporting requirement 

on the SRC seems minimal at best.

23 CFR part 771 FTA The DOT environmental process takes an inordinate 

amount of time. Because projects must have 

environmental clearances to be considered “shovelready,” the wait to obtain clearances often prevents the 

timeliest projects from qualifying for funding, effectively 

reserving shovel-ready funding for non-critical projects or 

projects past their useful life. 

Nat'l Society of 

Prof. Engineers 

(NSPE)

Shovel-readiness is related to projects funded 

under the Recovery Act (ARRA). FTA has 

completed the NEPA reviews of all ARRA 

projects in time to obligate all ARRA funds for 

transit by the statutory deadlines. 

23 CFR part 771 FTA Unless an environmental impact statement is required, 

transfer environmental review responsibilities entirely to 

the state DOT.

Nat'l Society of 

Prof. Engineers 

(NSPE)

FTA grant applicants are primarily transit 

authorities, not State DOTs. Delegating any 

NEPA responsibility for transit to a State DOT 

with no transit experience and no transit 

responsibility would not be appropriate.

23 CFR part 771 FTA Base decisions on reasonable analyses that can be 

completed within established budget and time 

constraints so that projects are not delayed 

unnecessarily over minor edits or subjective review 

comments that have no bearing on decision-making. The 

current process does not seem to consider whether the 

benefits justify the costs of performing exhaustive 

analyses and preparing lengthy documents.

Nat'l Society of 

Prof. Engineers 

(NSPE)

FTA agrees that the environmental bottom line is 

performance, not process, and is prepared to 

revise its environmental procedures to reduce or 

eliminate process requirements whenever firm 

commitments to specific, acceptable 

environmental outcomes are made upfront by the 

transit grant applicant.

23 CFR part 771 FTA Establish guidelines that eliminate the requirement for 

indirect and cumulative impacts analyses in all 

categorical exclusion documents, regardless of whether 

the project is adding capacity. Under NEPA, 

Nat'l Society of 

Prof. Engineers 

(NSPE)

FTA policy is to not require or ask for an analysis 

of indirect or cumulative impacts for CEs.
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transportation projects classified as CEs do not 

individually or cumulatively have significant effects. The 

purpose of a CE is to reduce paperwork and delay for 

projects where an environmental assessment or 

environmental impact statement is obviously not 

necessary.

23 CFR part 771 FTA Accept electronic submissions of documents. Nat'l Society of 

Prof. Engineers 

(NSPE)

FTA accepts electronic submissions of 

documents.

23 CFR part 771 FTA Currently all environmental requirements and/or permits 

must be completed before Right of Way (ROW) dollars 

can be obligated and the ROW acquisition process 

begun. It would significantly streamline the process if 

ROW acquisition could begin after an assessment of 

environmental requirements is made.

American 

Public Works 

Assoc.

The acquisition of right-of-way (ROW) prior to 

NEPA completion would prejudice the 

consideration of alternatives to avoid or reduce 

the environmental impacts of the alternative 

whose ROW has already been acquired.

23 CFR part 771 FTA States with strong environmental protection laws should 

be allowed to provide reciprocity for NEPA or eliminate 

the permitting duplication by charging the lowest level 

agency with the responsibility. NEPA is an additional 

layer to a number of state and other federal 

environmental requirements.

American 

Public Works 

Assoc.

The requirements cited primarily involve statutes, 

not regulations, and the suggestions would 

require statutory changes. To the extent the 

comments do involve regulations, they are the 

regulations of agencies outside of DOT.

23 CFR part 771 FTA Extending the “shelf life” for environmental documents 

would significantly reduce costs and schedule delays. 

Specifically, the shelf life for EAs and CEs should be 

extended to match the corresponding period applicable 

to Environmental Impact Statements (EIS) – ten years. 

Additionally, the period between draft and final EISs 

should be extended from the current three years to 

seven years. Conditions, particularly in urban areas, are 

unlikely to change in any significant way in these 

extended periods and where no such changes have 

been observed, extending the “shelf life” of these 

documents could be accomplished without threat to the 

environment.

APTA, MTA There is no absolute timeframe concerning the 

“shelf life” of any of the NEPA documents 

pursuant to FTA’s NEPA regulation. Whether or 

not supplemental environmental review must be 

conducted depends on whether changes to the 

project or the surrounding environment since 

approval of the last environmental document 

would have significant environmental effects. 

The timeframes in the existing regulation serve to 

ensure that documents that reach a certain age 

(three years) without any major actions advancing 

the project are reviewed to ensure the documents 

remain valid. Documents newer than three years 

old might require supplemental environmental 

work, yet documents much older than three years 

might be determined valid based on FTA’s 

reevaluation. The “shelf life” is based on 
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environmental impacts, not specifically on age or 

the type of document.

23 CFR part 771 FTA 23 CFR Part 771 should be updated to include concrete 

timelines for DOT review of environmental documents. 

Failure to complete environmental reviews in a timely 

manner directly impacts project schedules and budgets. 

Project sponsors shoulder these burdens without regard 

to how reasonable or unreasonable the delay may be. 

Establishing concrete timelines will provide a degree of 

certainty for project sponsors and, subject to fiscal law 

limitations, a basis on which DOT’s operating 

administrations can assume the financial burdens 

imposed by their failure to conduct timely reviews.

APTA FTA is proposing to streamline its environmental 

procedures to the maximum extent allowed by 

law. FTA recently hired environmental protection 

specialists in most of its regional offices whose 

job is it is to expedite the NEPA process. With 

the hiring of regional environmental protection 

specialists, FTA is now taking management 

responsibility for major NEPA documents and will 

be providing day-to-day guidance and direction 

directly to the grantee’s NEPA contractors to 

ensure that the draft documents that the 

contractor produces are worthy of concurrent 

reviews by all who must review it.

23 CFR part 771 FTA The problem with NEPA is that the roles of different 

resource agencies are not clear and through repeated 

inquiries for information, agencies have been able to 

delay certain projects almost indefinitely. 

Recommendation: Set statutory timeframes regarding 

the amount of time resource agencies have to request 

information regarding a project and the amount of time 

resource agencies have to review environmental 

documents with the understanding that unless 

substantive comments are received by a set timeframe, 

the documents are deemed satisfactory by the resource 

agency. Projects which currently take three to even ten 

years would take months to a year while still maintaining 

an assessment of impacts to the social, natural and 

cultural environment.

Maine DOT This suggestion will require statutory changes. 

However, to some extent, its objectives may be 

partially achievable through more active FTA 

management of the environmental process. FTA 

intends to take on such management 

responsibilities.

23 CFR part 771 FTA Under the “4(f) Process” and the National Historic 

Preservation Act. The “4(f) process” is the common 

reference to environmental review under 49 USC 303. In 

some aspects, the 4(f) process is redundant with section 

106 of the National Historic Preservation Act (NHPA), as 

well as a host of state and local statutes. These 

overlapping statutes lead to duplication of efforts and 

increased costs without affording additional protection to 

the properties and resources they are designed to 

protect. DOT should revise 23 CFR Part 771 to 

APTA Section 106 and Section 4(f) are substantively 

different statutory requirements that often both 

apply independently to FTA-funded projects. This 

suggestion cannot be accomplished through a 

regulatory change, it would require a statutory 

change. 

During the development of the bills that 

eventually became SAFETEA-LU, Congress 

considered the suggested change and rejected it. 
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affirmatively accept any finding under NHPA section 106 

as satisfying the requirements of the 4(f) process as the 

latter relates to historical properties and archaeological 

resources.

Instead, SAFETEA-LU amended Section 4(f) to 

allow a de minimis impact determination when the 

Section 106 review results in a no-adverse-effect 

determination. 

23 CFR part 771 FTA For smaller agencies, automate CE process (if even 

need it) or if have a federal environmental permit, let 

them complete NEPA and CE.

Maine DOT FTA plans to take primary responsibility for 

complying with NEPA when the project sponsor is 

not capable of performing that task. The recent 

hiring of environmental protection specialists in 

each FTA regional office should allow this 

approach.

49 CFR part 661 FTA Eliminate Buy America requirements for small federally 

funded projects.

Maine DOT Buy America is a statutory mandate attached to 

the use of FTA funds. FTA has issued a 

categorical public interest waiver for small 

purchases (i.e., procurements under $100,000). 

See 49 CFR 661.7, Appendix A, paragraph (c). 

49 USC 5325(b) FTA FTA and FHWA draw the false conclusion that all 

engineering services involving real property are directly 

related to construction. Engineering includes services 

such as traffic studies, bridge inspections, and drainage 

studies that involve real property but may or may not 

lead to construction. As such, FTA and FHWA should 

amend their regulations to include all engineering 

services covered under the Brooks Act.

NSPE FTA’s compliance with 49 USC 5325(b), its 

“Brooks Act” type statute that requires grantees to 

select Architect and Engineers using a 

qualifications-based procurement, is consistent 

with Federal policy adopted for implementation of 

“Brooks Act” type statutes throughout the Federal 

Government. There is no need from FTA’s 

perspective to expand the scope of this statutory 

requirement.

49 CFR part 604 FTA Overall, this rule unduly burdens the general public that 

relies on public transportation, disproportionately 

emphasizes private interests over the public interest, and 

is inconsistent with public policy concerning accessibility 

to public transportation. Specifically: The rule exceeds 

the statutory requirements, ignoring both the requirement 

that the prohibited service be “outside the urban area in 

which [the public agency] provides regularly scheduled 

public transportation service” and the protection afforded 

to prevent a covered public agency from “foreclosing a 

private operator from providing intercity charter bus 

service if the private operator can provide the service.” 

The rule has evolved from protecting private charter 

companies from unfair competition in intercity service to 

providing private companies an entitlement to provide 

Big Blue Bus The current charter regulation is the result of a 

Congress ordered negotiated rulemaking. Both 

private charter operators and public transit 

agencies were represented on the negotiated 

rulemaking committee. The current rule affords 

ample flexibility for certain types of events, 

provides a more straightforward definition of 

charter, and makes exceptions as appropriate.

The current rule is based on the statutory 

prohibition that Congress created to prevent 

public transit agencies, who receive federal 

assistance, from competing with private charter 

operators. The exception for regional or 

nationally significant events is still in the current 

regulation, but the public agency must at least 
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charter service, regardless of the effect on the general 

public and based on an ever-expanding definition of 

“charter service”. The rule redefines certain established 

public transportation services as charter service, 

resulting in service gaps and increased costs to transit 

passengers. The commenter cites a litany of cases in 

which public transportation agencies were able to 

provide intracity service for major events under the 

previous rule but are now prohibited from doing so, and 

the ensuing problems. The rule should be amended to 

lessen the burden imposed on the general public and to 

increase the benefit provided to the public by the rule. 

Local governments should not be prevented from using 

public facilities they – and their taxpayers – already 

support as a resource in putting on public events. The 

rule should be amended to remove inconsistencies with 

major public policy requirements. The inability of a 

private provider to provide equipment that is consistent 

with major public policy requirements such as the ADA 

should be a per se exception to any requirement that a 

public institution or sponsor of a major public event use a 

private charter provider.

consult with and utilize private operators. If a 

public transit agency wishes to provide service for 

a smaller community event, it can do that by 

providing the service for free or charging the 

regular fare. An agency can also create seasonal 

service with a fixed schedule and route for a 

regular fare. There is no reason to expand the 

definition to exclude public events, because 

public transit agencies are able to provide service 

for those events by not charging a premium fare 

or receiving a third party subsidy.

49 CFR part 604 FTA The current definition of charter service in 49 CFR 604.3 

effectively bars public transportation agencies from 

supporting large community events that are open to the 

public and draw substantial patronage from throughout 

those communities. The definition of charter service 

should be amended to exclude transportation provided to 

the general public for events or functions that occur on 

an irregular basis or for a limited duration, regardless of 

whether the service is paid for in whole or in part by a 

third party or whether a premium fare is charged, so long 

as the service is available and open to the general public 

attending public events or functions and the recipient of 

federal funds determines the routes and schedules of the 

service provided.

APTA Although the old regulation allowed for a special 

exception related to large events, the events 

envisioned were one of kind events like the 

Olympics, not general large events as the 

comment implies. The exception for regional or 

nationally significant events is still in the current 

regulation, but the public agency must at least 

consult with and utilize private operators. If a 

public transit agency wishes to provide service for 

a smaller community event, it can do that by 

providing the service for free or charging the 

regular fare. An agency can also create seasonal 

service with a fixed schedule and route for a 

regular fare. 

49 CFR part 604 FTA Many public transportation agencies operate historic or 

other vehicles not readily available from private 

providers. These vehicles are highly desirable for service 

APTA With regard to the question of historic vehicles or 

trolleys being excluded from the charter definition, 

it is pretty clear that these vehicles are almost 
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in wedding parties, family reunions, and other similar 

events. The current charter service regulation allows no 

distinction between these aesthetic vehicles and other 

buses. 49 CFR Part 604 should be amended to 

acknowledge the qualities that distinguish vehicles of this 

nature and create an exception that would allow transit 

agencies to provide these services in the absence of 

similar vehicles available from private sources at 

reasonable prices.

exclusively used for charters. If a public transit 

agency can’t find a use for the vehicle other than 

for charters, then they should dispose of it. If 

there is enough of a demand, then the private 

providers will purchase one.

49 CFR part 

604/605

FTA Allow Transit Systems to operate sightseeing charters 

and school bus trips.

Greater Peoria 

Mass Transit 

District

The definition of public transportation, found at 49 

U.S.C. 5302(a)(10), provides, “The term ‘public 

transportation’ means transportation by a 

conveyance that provides regular and continuing 

general or special transportation to the public, but 

does not include school bus, charter, sightseeing, 

or intercity bus transportation . . .” Only Congress 

can change this definition. 

49 CFR 18.31, 

19.3

FTA Transit agencies can support affordable housing 

development near transit stations through the disposition 

of excess property. While there may be cases where 

property disposition is the best strategy for developing 

transit-adjacent properties, there are regulatory 

restrictions that make this type of development difficult. 

According to 49 C.F.R. § 18.31 and 49 C.F.R. § 19.32, 

transit agencies are required to sell excess FTA-funded 

property for the highest possible return and must pay 

FTA the proportionate share of its interest in the 

property. This requirement puts affordable housing 

preservation and development at a disadvantage. Transit 

agencies are prohibited from donating property (or 

selling it at a discounted rate) to affordable housing 

interests. 

National 

Housing 

Conference

The Common Grant Rule (49 CFR Parts 18 and 

19) is not within the purview of FTA. Therefore, 

FTA is not able to amend unilaterally many of the 

regulations the commenter cites as barriers to 

joint and transit-oriented development.

Note: There is a statutory provision unique to FTA 

that can facilitate the development of affordable 

housing. Section 5334(h) of Chapter 49, United 

States Code, allows FTA grantees to transfer real 

property funded with Federal dollars to local 

government entities under certain conditions 

without repayment to FTA.

N/A FTA There currently is significant overlap in material covered 

by different FTA reviews. FTA and grantee resources 

would be used more efficiently if contractors conducting 

Financial Management Oversight, Project Management 

Oversight, Procurement, Triennial or other reviews could 

share pertinent information. This will reduce the cost to 

MTA FTA is currently performing a comprehensive 

review of its oversight functions. 
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USDOT and allow USDOT and grantees to make more 

efficient use of their staff. To take into account if similar 

topics were reviewed within the last year, or if more 

detailed reviews are anticipated in the coming year, to 

allow for only one review of the topic within the year.

N/A FTA Wherever feasible, USDOT should utilize existing 

oversight mechanisms (e.g., annual certifications, 

quarterly reports, Triennial Reviews, etc.) to avoid 

retaining additional oversight consultants.

MTA FTA is currently performing a comprehensive 

review of its oversight functions. 

49 CFR part 633 FTA Identify all FTA and Project Management Oversight 

(PMO) reviews to be conducted and project information 

required so projects are not delayed at key milestones.

MTA FTA is currently performing a comprehensive 

review of its oversight functions. 

49 CFR part 611 FTA Combine Entry into Preliminary Engineering and Entry 

into Final Design into a single Entry into Project 

Development to avoid stops and starts that can erode a 

project sponsor's credibility with local officials.

MTA The approvals for Preliminary Engineering and 

Final Design have already been combined into a 

single approval for Project Development for Small 

Starts projects. Making the same change for 

New Starts projects would require changes to the 

statute.

49 CFR part 611 FTA Expand pre-award authority issued at the time of the 

Record of Decision to include early construction 

activities. This will allow the project to continue to 

advance with local funds and eliminate the need for 

Letters of No Prejudice.

MTA FTA greatly expanded pre-award authority and 

streamlined its LONP policies through policy 

guidance issued in September 2009. FTA 

believes requiring LONPs for the start of 

construction activities, with the exception of utility 

relocation which is covered under pre-award at 

approval into final design, is prudent. FTA’s 

streamlining of the LONP process implemented in 

2009 shortens the timeframe for approval, 

thereby reducing any impact on project 

schedules.

49 CFR part 611 FTA Create a jointly-developed FTA Agency schedule with 

due dates for all parties involved, including consultants.

MTA This is already occurring. More than five years 

ago FTA began jointly developing individual 

project roadmaps with each project sponsor 

laying out the steps involved to reach the next 

major milestone. These roadmaps include 

anticipated dates for submittal of information and 

completion of activities for all parties.
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49 CFR part 611 FTA Ensure mutual understanding of FTA decision points and 

all interim steps as early in the process as possible. This 

will build more predictability into the process.

MTA FTA works with each project sponsor to develop 

a roadmap outlining the steps and timeframes 

necessary to meet the next major milestone in 

project development. This process has been in 

place for more than five years.

49 CFR part 611 FTA USDOT should consider allowing projects with Full 

Funding Grant Agreements to defer the local match. This 

is standard practice for other FTA grant programs would 

reduce the cost to grantees of financing transit projects. 

The FFGA coupled with the Triennial Review and the 

Financial Management Oversight process can be used to 

ensure that local match will be provided as required.

MTA. APTA FTA has sufficient flexibility under current 

regulations and guidance to allow deferred local 

share for New Starts grants at time of grant 

award if specific circumstances justify it. For 

example, although our policy is not to allow 

grantees to defer local share for New Starts, we 

allowed it where needed for the ARRA New 

Starts grants because this was an unexpected 

surge of Federal funding earlier than expected in 

the project. Typically, however, FTA would not 

allow it for New Starts given the need for New 

Starts grantees to have a secure and committed 

source of local funds to support the project as 

part of financial capacity.

49 CFR part 611 FTA Allow New Starts funds to be used for preliminary 

engineering for transit projects even if funding through 

the third phase of construction is not yet finalized. 

Paradoxically, it is difficult to finalize a full financing plan 

until the project has gone through preliminary 

engineering and a firm cost estimate has been identified. 

Conversely, highway projects can advance through 

preliminary engineering without the assurance of being 

fully funded. Transit projects should be afforded the 

same treatment as highway projects, thereby, making 

the development of firm cost estimates more accurate, 

which is important to potential project funders. This will in 

turn make the New Starts process more conducive that 

will not only get transit projects underway more quickly, 

but also allows such projects to be managed more 

efficiently.

Association for 

Commuter 

Transportation

The comment is a bit unclear. If a project has 

received an appropriation of New Starts funding 

from Congress, it may used to pay for preliminary 

engineering once the project is approved by FTA 

into preliminary engineering. To be approved into 

preliminary engineering, the statute requires that 

the project be evaluated and rated under the 

statutory project justification and local financial 

commitment criteria and receive at least a 

“Medium” overall rating. FTA does not require 

that funding sources be committed before it will 

approve a project into preliminary engineering. 

Rather, FTA requires only that a reasonable plan 

for funding the project be identified.

49 CFR part 611 FTA The term “project” itself has been expanded through 

practice and should be limited to the statutory definition 

found in 49 USC 5302(a)(1). FTA regional offices have, 

in some cases, taken an overly expansive view of what is 

APTA The Federal statutes and rules identified by the 

FTA Master Agreement must be applied to all 

activities, facilities, and equipment funded by an 

FTA grant. For New Starts, “project” activities, 
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included in a project and thus subject to federal rules and 

oversight. As a result, FTA grantees have been required 

to subject locally funded, unrelated work (e.g., replacing 

light rail catenary wire) to federally-assisted projects 

(e.g., rehabilitation of light rail vehicles) based on 

tenuous links (e.g., both are aspects of an existing light 

rail system). This both slows and adds expense to locally 

funded projects with no offsetting benefit.

facilities, and equipment are identified in the 

Scope of Work under a Full Funding Grant 

Agreement, which is always the subject of 

negotiation between FTA and a grantee. On a 

number of occasions FTA has allowed a grantee 

to exclude certain items from a Scope of Work 

when the grantee was able to demonstrate those 

items could and should be accomplished 

separate from the New Starts project. 

49 CFR part 611 FTA Eliminate the requirement for receiving federal 

authorizations along the way and just have one 

authorization up front.

Maine DOT Authorizations are required by the Federal 

surface transportation statutes, which are the 

prerogative of Congress, not FTA.

Guidance -

CMAQ

FTA While there is no statutory time limit on using CMAQ 

funding for a project, DOT’s operating administrations 

have administratively limited funding to a maximum of 

three years. DOT should allow operating subsidy and 

transportation travel demand projects to continue to 

qualify for CMAQ after three years as long as they 

continue to demonstrate net air quality benefits to air 

quality non-attainment areas. Additionally, CMAQ 

funding is routinely refused in situations where net air 

quality benefits are difficult to quantify although intuitively 

obvious. We believe DOT should deem projects that 

increase transit capacity to benefit air quality without 

additional analysis.

APTA Transit operating expenses are not eligible for 

FTA assistance except at very small transit 

agencies. At larger transit agencies, CMAQ 

funds may only be used for initial operations of an 

emissions-reducing capital project. No change is 

warranted.

Guidance -

CMAQ

FTA The Department could require that transit projects 

eligible under Title 23 CMAQ be administered by the 

Federal Transit Administration under the rules and 

regulations of Title 49 Chapter 53. The advantage of this 

requirement is that the inconsistent rules around the 

definitions of “operating” and “capital” expenses, Buy 

America, and eligible project components, would no 

longer matter, and instead the project would be 

administered by the subject matter experts. Very 

specifically, this would eliminate the confusion between 

capital and operating expenses that has been 

exacerbated by the 2008 CMAQ program guidance 

specifying a three‐year limit on operating expenses for 

Association for 

Commuter 

Transportation

To be CMAQ eligible, transit operating expenses 

must be associated with a transit capital project 

and only three years of such operating expenses 

can be covered by CMAQ. FHWA does not 

always transfer to FTA CMAQ funds that a State 

DOT plans to use on a transit project, but 

whenever CMAQ funds are transferred to FTA, 

the project is administered under the rules of 49 

USC Chapter 53. 
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vanpool programs.

Guidance FTA Bus rebuilding/enhancement projects typically cost less 

than half the price of a new bus and can extend the 

useful life by 8- 10 years. Rebuilding also presents 

opportunities to incorporate the most efficient 

technologies into existing fleets resulting in improved fuel 

efficiency and reductions in emissions. Many transit 

agencies continue to focus on replacement. The focus 

on replacement is partially due to the lack of clear 

direction on the most cost effective use of discretionary 

funds. U.S. policy makers seeking to cut deficits while 

maintaining needed services need to look to bus 

remanufacturing as a tool for cost effective savings. 

Policies favoring cost effective alternatives to 

replacement need to be unambiguously communicated 

to the transit agencies.

Midwest Bus 

Corporation

Whether to replace, remanufacture, rehabilitate, 

or retrofit a bus is a decision within the discretion 

of the local transit agency. FTA encourages 

transit agencies to explore vehicle 

remanufacturing as one of the means of 

extending a vehicle’s useful service life.

N/A FTA To minimize process on small projects, allow States and 

Local Public Agencies to follow State procurement 

requirements and waive certain federal requirements.

Maine DOT FTA’s third-party procurement requirements are 

based on Federal statutes that can only be 

changed by Congress, and regulations set by 

Federal agencies other than FTA. FTA cannot 

“waive” a requirement based on statute or the 

regulations of another Federal agency.

49 U.S.C. 5333 FTA Increase the threshold for the need for "Davis Bacon" 

rates to coincide with these projects.

Maine DOT Labor regulations applicable to FTA-funded 

projects are established by the U.S. Department 

of Labor, not the Department of Transportation or 

FTA.

49 U.S.C. 5307 FTA Calculate large urban areas by number of buses 

operated and not population. Allow large urban areas to 

use federal operating assistance.

Greater Peoria 

Mass Transit 

District

Congress has defined urbanized areas by 

population, and allows certain areas to use funds 

for operations. Only Congress can decide to 

calculate large urban areas by number of buses 

operated and not population. Similarly, only 

Congress can permit large urbanized areas to 

use their federal funds for operating.

49 U.S.C. 5302 FTA The language should be changed to disallow HOV and 

HOT as authorized fixed guideways expenses. HOV and 

HOT lanes are highway investments, not transit 

investments. Running express bus on a HOT/HOV 

facility in no way changes a highway investment into a 

transit investment. The [2009 FTA State of Good Repair] 

Ibrake4snakes High Occupancy Vehicle lanes are included in 

the Fixed Guideways Modernization Program 

because Fixed Guideways are defined in Federal 

Transit Law Section 5302(a)(4)(A) as "a 

public transportation facility...using and occupying 

a separate right-of-way or rail for the exclusive 
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study also finds that, between 1991 and 2009, although 

the actual dollar amount of capital funding from Federal 

sources to the seven ["old rail city"] agencies increased, 

their share of Fixed Guideways Modernization funds—to 

“old rail cities” in particular—actually declined as new 

fixed guideways systems, such as bus ways and HOV 

lanes, entered the program." HOV and HOT are no more 

fixed guideways investments than GP lanes are. SGP for 

critical transit - real transit - should not be used to 

support highway expansion projects instead. HOV and 

HOT are *not* transit. This regulation needs to be 

updated.

use of public transportation and other 

high occupancy vehicles." The suggested 

change would require a change in the Federal 

Transit Law definition of a Fixed 

Guideway. Under current law FTA does not have 

the discretion to eliminate High Occupancy 

Vehicles from the definition of Fixed 

Guideways and such a change cannot be made 

by regulation.

49 U.S.C. 5309 FTA We urge DOT to better align the funding practices of FTA 

and FHWA. Currently, FHWA recipients request and 

receive authority to proceed that allows them to 

immediately draw federal funds for their projects. FTA 

grantees, even those with pre-award authority to incur 

reimbursable costs, must wait for FTA grant approval 

before obtaining reimbursement. This delay, often six 

months or more, results in financial hardship on public 

transportation agencies forced to finance all project costs 

in advance of grant approval. DOT should reform the 

FTA grant practice to allow FTA grantees to undertake 

and be reimbursed for routine activities under a similar 

‘authority to proceed’ in advance of grant approval. 

MTA Congress has provided by statute that FTA may 

not provide pre-award construction authority for 

capital investment projects simply because a 

Record of Decision has been signed. For 

example, FTA may not issue a letter of no 

prejudice for a capital investment project until ". . . 

the Secretary approves the plans and 

specifications for the part in the same way as 

other projects under this section." [5309 - capital 

investment grants]. 

N/A FTA MTA recommends separating the project approval 

process from the grant approval process, particularly for 

routine state of good repair projects, such as 

replacement of rolling stock, facility components and 

other transit related equipment. We suggest that federal 

transit funds for these projects be available at the start of 

the federal fiscal year without publication of a Federal 

Register notice, provided funds are authorized. For these 

projects, budget authority, involving detailed FTA review 

and approval of the grant would not be necessary. A 

modified grant format could be considered as part of 

FTA's current initiative to update the TEAM system, and 

adherence to federal certifications and assurances for 

MTA Funding for SGR projects is normally derived 

from the 49 U.S.C. 5307 and 5311 formula 

programs. By law, apportionments for urbanized 

formula projects must be published in the Federal 

Register before being made available for 

expenditure.

Availability of these funds depends on 

Congressional appropriations as well as 

authorizations. Moreover, Congress requires 

FTA to apportion Section 5307 funds in 

accordance with statutory formulae and publish 

apportionments of the amounts available for each 
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these "excluded" items could be addressed through 

FTA's Triennial Review process. By allowing certain 

projects to use federal funds immediately, grantees 

would be able advance projects on a more predictable 

time frame, and finance costs associated with pre-award 

authority would be reduced.

area. For that reason, FTA cannot make funding 

available to grantees absent appropriations or

previous funding that may have been recovered.

49 U.S.C. 5316

Guidance

FTA Car sharing projects have been rejected from being 

eligible for JARC funds by FTA. Specifically, FTA stated 

in FRN Vol. 71 September 6, 2006 that "Shared station 

cars--cars available for shared use and located at 

subway or other public transit stations--are not listed in 

the examples of eligible activities. While there may be 

limited circumstances when the provision of a shared 

station car might be appropriate to support access to 

short-term job related activities, such as interviews, FTA 

does not believe that purchase of shared station cars is 

generally appropriate to support daily commutes." The 

model for car sharing provides a dispersed network (not 

just at a station) of vehicles as an extension of transit in 

an area. Car sharing is not a commuting option - it exists 

to help more people commute via public transit, jitneys, 

car pools, shuttles, etc.... because they can have access 

to a car share for occasional needs once they have 

reached their destination. 

Community 

member

FTA agrees that “car sharing is not a commuting 

option.” The purpose of the JARC program is to 

provide transportation options for persons with 

low incomes to get to and from work. It is clear 

that car share programs are very effective in 

allowing people to be “car-free” and rely on public 

transportation for the majority of their trips. Since 

car sharing is not a viable means of assisting 

people to get to or from work, however, it is not 

an eligible expense under the JARC program.

Guidance FTA Section Four of Chapter Five of FTA’s Title VI circular 

outlines the requirement to evaluate service and fare 

changes. It provides two options for evaluation: Option A 

(the FTA prescribed method) and Option B (the locally 

developed method). Option A is the FTA developed 

method for evaluation. It states that recipients shall 

assess the effects of a given change in service or fare 

policy on minority and low-income populations using 

maps and information available from ridership surveys. 

Since it is meant to be a prescriptive method, we feel 

that more guidance is needed on how to establish a 

viable evaluation process. Additional guidance should 

include detail on the following: • Type of data needed 

(i.e. demographic attributes) and typical sources of this 

WMATA FTA is currently in the process of reviewing the 

Title VI circular for possible revisions. 
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data (census/ customer survey) • Means to define a 

route or facility as "minority/low income" • Typical 

measures of impact (i.e. reduction of headway/longer 

wait time, higher load factor, additional cost per trip for 

common Old pairs) • A simple example of how to analyze 

data for a disparate impact • Discussion of how to 

mitigate impacts • Examples of what constitutes 

"substantial need" This information would be illustrative 

in nature and would only pertain to Option A. 

23 CFR part 450 FTA/FHWA Despite attempts to clarify the intent of new planning 

regulations dealing with financial constraint, many MPO's 

are encountering interpretations in various states that 

suggest that the financial information from project 

sponsors in the TIP needs to include the exact location 

of the funding source.

This is a requirement that an MPO cannot verify or 

monitor, but also a requirement that potentially hampers 

the ability of a local sponsor to respond to financial 

situations and move funding where necessary. 

Essentially, funding sources are an issue between the 

states (who have the funding agreements with local 

project sponsors) and local government. It would 

streamline and make more easy the financial constraint 

reviews if this issue were clarified and simplified.

A Clements The existing regulations require

the proposed funding source be identified in the 

STIP/TIP. This is a key part of demonstrating 

fiscal constraint of the STIP/TIP. States and 

MPOs do have the flexibility to change the 

proposed funding source administratively in the 

TIP/STIP without an amendment or update. 

FHWA/FTA will consider opportunities for 

developing and issuing clarifying guidance or 

information in the future.

23 CFR part 450 FTA/FHWA DOT should require State DOTs and MPOs to improve 

reporting on transportation funding decisions and 

outcomes with the stated objective of achieving 

transparency of and convenient public access to 

information about the use of federal surface 

transportation funding. DOT’s planning regulations 

currently require states and MPOs to provide certain 

information to the public but the lack of a stated purpose 

or clear expectations leads to inconsistent application of 

these requirements around the country. This situation 

can be addressed by using the model set by 

Administration management and reporting on ARRA 

(White House Memo M-09-10). Like past ARRA 

reporting systems, data should be compiled, organized 

and made available on the Internet through a plain 

Reconnecting 

America

Currently the planning Statute and regulations 

only require MPOs to publish a list of projects for 

which funds under Title 23 or Title 49/Chapter 53 

were obligated in the preceding program year.
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English website (Recovery.gov is a good model). 

Beyond that, a new federal surface transportation 

performance monitoring and reporting website should 

have built-in provisions for data access and analysis. A 

comprehensive glossary should be provided and data 

reporting from all agencies and grantees should be 

standardized to support both routine reports and ad hoc 

investigation. Greater transparency about the use of 

federal transportation funds will all users of the 

transportation system to monitor progress and identify 

inefficient or uncoordinated uses of federal funding.

23 CFR part 450 FTA/FHWA DOT should improve consolidated planning process 

between federally required long-range 

transportation, housing and environmental plans.

Working closely with the U.S. Department of

Housing and Urban Development, DOT should issue

guidance to State DOTs and MPOs on ways to improve 

coordination between state and regional long-range 

transportation plans and federally-required consolidated 

housing plans. The implementation of HUD’s 

Sustainable Communities grants will be an important 

opportunity for USDOT to work with selected 

communities, particularly through DOT regional offices, 

to identify best practices as well as potential barriers and 

data needs from MPOs, transit agencies and state 

DOTs, with an eye towards achieving a more simplified 

and consolidated planning process. Such a process will 

reduce inefficiencies a the local and regional level 

stemming from uncoordinated federal planning 

requirements.

Reconnecting 

America

FHWA and FTA have started to work with HUD to 

better align planning and program activities, for 

example as part of the TIGER II grants. Through 

the DOT/HUD/EPA partnership, it is an area we 

are continuing to explore. It is important to 

emphasize, however, that because FHWA and 

FTA do not approve the transportation plans of 

States and MPOs, the agencies will need to rely 

upon non-binding guidance for promoting more 

fully coordinated plans and planning processes.

23 CFR part 450 FTA/FHWA 23 CFR Part 450 requires revenues and costs in MPO 

long range transportation plans (LRTP), MPO 

transportation improvement programs (TIP) and the 

statewide transportation improvement program (STIP be 

expressed in “year of expenditure dollars.” No such 

requirement is contained in Title 23 USC. 

Recommendations: 

The use of either “year of expenditure dollars” or 

“present day dollars” for both revenues and costs is 

technically correct and both approaches are widely used 

AASHTO The YOE requirement in the regulation requires 

State DOT’s and MPOs to adjust project costs 

and revenues to year of expenditure. This is 

important for the demonstration of fiscal 

constraint because over the life of the STIP/TIP 

and MTP, revenues may not be inflating at the 

same rate as project costs. Also, using YOE 

dollars provides consistency between project 

costs in the STIP/TIP and those used in project 

finance plans. States and MPOs do have the 

option of developing an analysis using “present 
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in financial analyses. The preferred approach should be 

a technical decision best made by the MPO in 

cooperation with the state.

day dollars” in addition to an analysis using YOE 

dollars for their own use and purposes if they 

deem it necessary. 

23 CFR part 450 FTA/FHWA Title 23: Part 450 provides policy guidance on how states 

should administer FHWA Planning and Research 

Program funds, but is very vague in terms of reporting 

measures and methods of approval. For example, 

phrases such as adequate and reasonable are used to 

describe the requirements for public involvement and 

planning processes. Consequently, FHWA staff employ 

subjectivity in interpreting

these rules. The main problem associated with this 

regulation is the subjectivity and inconsistency of its 

interpretation by federal officials.

Instead of requiring FHWA approval of planning 

programs and documents, e.g., the Public Involvement 

Plan, Long-Range Plan, the Statewide Transportation 

Improvement Program and the amendments to them, 

enable states the ability to self-certify that planning 

documents and programs are compliant with Title 23.

A significant reduction in administrative review processes 

enabling projects to proceed to design and construction 

on a much quicker timetable.

Maine DOT FHWA and FTA do not approve public 

involvement plans, long-range transportation 

plans, or transportation improvement programs 

(TIP) of MPOs. FHWA and FTA do approve the 

STIP and conformity findings on TIPs and 

Metropolitan Transportation Plans because it is 

required by statute. Any change to this requires a 

change to statute. States and MPOs currently 

have a requirement to self-certify that their 

planning programs and documents are compliant 

with Title 23. FHWA and FTA continue to 

examine their internal management practices and 

look for opportunities to achieve better 

consistency through providing guidance and 

training.

23 CFR part 450 FTA/FHWA Statewide planning and metropolitan transportation 

planning require work programs, records retention, and 

significant reporting that would allow USDOT to pinpoint 

the costs and benefits associated with compliance with 

this part.

Many of the statements included in this part can and 

should be conveyed in non-binding guidance. The 

regulations should be clear and concise about 

requirements and exceptions to those requirements.

The USDOT should assess whether some of the matters 

in this section could be better handled by the states 

without regulations.

CalTrans This is not desirable - Records retention 

requirements are consistent with the Common 

Rule that applies to Federal grant recipients. The 

requirements are critical to determining proper 

use of Federal funds and are appropriately 

required through regulations. 

Examples of regulations are in Title 49 CFR 

18.42 and Title 49 CFR 18.20, which require 

accurate, current, and complete disclosure of the 

financial results of financially assisted activities 

made with grants or sub-grants awarded with 

DOT funding.
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23 CFR part 450 FTA/FHWA Streamline the federal Transportation Improvement 

Program (TIP) Amendment process. Current regulations 

require that many relatively minor changes to project 

cost, scope, or schedule require time-consuming and 

paperwork intensive amendments to the TIP. This can 

occur as a result of relatively minor changes to project 

limits (as little as over a tenth of a mile), or changes in 

project cost (regardless of the amount of change). 

Relaxing the requirements for amendments will greatly 

expedite revisions and save resources.

CalTrans This is desirable - The current regulation provides 

flexibility to States/MPOs to set criteria for 

determining whether changes to cost or schedule 

for projects should be effected as “administrative 

modifications’” Changes to project design concept 

and scope, however, require an amendment 

because of their implications for conformity, 

public involvement, and fiscal constraint. 

23 CFR part 450 FTA/FHWA Change the period of the TIP/STIP from four years to 

five. Current regulation requires the TIP/STIP to cover 

four years and be updated at least every four years

(California updates every two years, to have a pool of 

programmed projects to draw on). If the period of the 

TIP/STIP were increased to five years, with an update at 

least every four years, it would cut in half the workload of 

Metropolitan Planning Organizations and states for 

updates.

CalTrans The period covered by the STIP/TIP was 

established in statute and therefore only 

Congress can make this change.

23 CFR part 450 FTA/FHWA A modern, integrated budgeting tool for local and state 

project sponsors under FHWA would dramatically 

improve both program oversight and project spendout 

monitoring. These two tasks (budgeting and spendout 

monitoring) are currently being accomplished with the 

TIP/STIP documents and the Fiscal Management 

Information System (FMIS). The TIP/STIP amendment 

process is clumsy and not designed to take into account 

final bids on projects, change orders, and other facts of 

life in the project implementation world. Meanwhile, 

project sponsors are unable to easily monitor the 

relationship between their budgeted projects in the 

TIP/STIP and their obligated amounts in FMIS. Local 

project sponsors at a special disadvantage here because 

of their sub-grantee relationship with state DOTs.

A further issue if the requirement for all federal funding 

changes to be accomplished by amendment to the 

TIP/STIP. While it is important to disclose these 

NYC DOT Integration of the STIP/TIP with FMIS may be 

desirable and is the prerogative of the States and 

MPOs, however, it is not adopted as a 

requirement due to the complexities and technical 

capacity that would be involved. The current 

regulation provides flexibility to States/MPOs to 

set criteria for determining whether changes to 

cost and schedule of projects should be effected 

as “administrative modifications.” 

Mapping is an effective approach to 

communicating the information associated with 

projects in the plan and TIP/STIP. However, it is 

not an administrative requirement due to the wide 

range of technical capabilities of MPOs and 

States precludes imposition of a technical 

standard. 
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changes, the process of amending the TIP during project 

bidding and implementation can cause confusion and 

undue burden on agencies. Further, the use of the TIP to 

in effect monitor the budget for transportation projects on 

a regional basis is typically a clumsy operation because 

of the multiple agencies involved. We recommend that 

the TIP/STIP be made more easily amendable if it is to 

be used continually as a budgeting document for federal 

funding.

Finally, to maximize transparency, all projects in the 

federal program should be mapped in an accessible way 

for the public and for partner agencies through FMIS.

23 CFR 450.210 FTA/FHWA Public Meetings – the regulations state that “to the 

maximum extent practicable ensure that public meetings 

are held at convenient and accessible locations and 

times” – holding traditional public meetings for planning 

has been relatively ineffective as a means for obtaining 

public involvement or comment. A later section of the 

regulations encourages use of electronic means for 

providing public information, but the requirement for 

public meetings still stands. This is outdated for most 

areas and should be done at the discretion of the DOT or 

MPO and the approaches to be used should be 

documented in the DOT or MPO public involvement plan 

but not dictated at the Federal level. 

Colorado DOT In the event that a public meeting is held, the 

DOT or MPO must, by statute and regulation: “to 

the maximum extent practicable ensure that 

public meetings are held at convenient and 

accessible locations and times”.

23 CFR 450.210 FTA/FHWA The regulations state that “to the maximum extent 

practicable ensure that public meetings are held at 

convenient and accessible locations and times” – holding 

traditional public meetings for planning has been 

relatively ineffective as a means for obtaining public 

involvement or comment. A later section of the 

regulations encourages use of electronic means for 

providing public information, but the requirement for 

public meetings still stands. 

This is outdated for most areas and should be done at 

the discretion of the DOT or MPO and the approaches to 

be used should be documented in the DOT or MPO 

public involvement plan but not dictated at the Federal 

level. 

AASHTO In the event that a public meeting is held, the 

DOT or MPO must, by statute and regulation: “to 

the maximum extent practicable ensure that 

public meetings are held at convenient and 

accessible locations and times”.
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23 CFR 450.212 FTA/FHWA Transportation Planning Studies & Project Development 

and 450 Appendix A - Linking the Transportation 

Planning & NEPA Process

Maintain flexibility and do not mandate this optional 

project streamlining process. We are not suggesting this 

as a CFR to be reviewed. However, if selected based on 

input from others, do not incorporate Appendix A into the 

regulation, maintain it as an appendix. This process is 

useful because it is optional, not mandated, allowing 

states flexibility to customize the approach to what 

makes sense given each particular study. In addition, 

under 23 CFR 450.212, preserve the ability to use 

products from the planning process in the environmental 

process to avoid -duplication of efforts and unnecessary, 

excess costs.

Appendix A to the planning regulations is nonbinding and is guidance, not a requirement.

23 CFR 450.216 FTA/FHWA 23 CFR 450.216 STIP (as it relates to fiscal constraint)

Issue. Costly, disruptive to project delivery, 

burdensome. Current federal fiscal constraint and

environmental restrictions make it difficult to strategically 

identify and preserve future transportation corridors. Until 

the NEPA process is complete and a corridor is in a 

fiscally constrained plan, federal funds can only be used 

to acquire individual parcels that meet the definition of 

"hardship" or "protective" acquisitions. These exceptions 

are narrow making it difficult to protect a continuous 

corridor or strategically acquire parcels from willing 

sellers until after the NEPA process is completed.

We support AASHTO's recommendations to separate 

the right-of-way acquisition process from the 

environmental impact process and treat right-of-way 

acquisition as a "neutral" event from an environmental 

point of view. Allow states to use federal or state funds 

well in advance of project construction if the opportunity 

is there and the viability of a project would otherwise be 

threatened. Specify that entire corridors do not need to 

be part of a fiscally constrained. Long-Range 

Transportation Plan in order for corridor preservation to 

advance. This could generate overall project cost 

savings and reduce significant disruption down the road 

to project delivery. 

Montana DOT Current statute allows the STIP (program) to 

contain a project or an identified phase of a 

project only if full funding can be reasonably 

anticipated to be available for the project within 

the time period contemplated for completion of 

the project. (SAFETEA-LU § 6001, 23 U.S.C. § 

135 (g)(4)(E).

While FHWA and FTA regulations presently limit 

the ability to use Federal funds for acquisition of 

property prior to the completion of NEPA, the 

primary standard appears in CEQ regulation at 40 

CFR § 1506.1. That is a government-wide 

regulation and U.S. DOT agencies have no 

authority to revise it. 
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23 CFR 450.216 FTA/FHWA Development and content of the statewide transportation 

improvement program (STIP).

"(a] The STIP shall cover a period of no less than four 

years and be updated at least every four years, or more 

frequently if the Governor elects a more frequent update 

schedule."

Due to the importance of keeping programming 

information up-to-date, it is recommended that the 

update period for the STIP be at least every two years, 

or more frequently if the Governor elects a more frequent 

update schedule.

Updating the STIP every two years maintains a 

programming document that always shows planned 

obligations at least two years into the future. This is 

preferable to allowing the programming document to get

down to showing only the current year's planned 

obligations.

Hampton 

Roads 

Transportation 

Planning 

Organization

States and MPOs are required update the 

STIP/TIP at least once every 4-years. They may 

update the STIP/TIP more frequently if 

necessary. Any change to the 4-year minimum 

STIP/TIP cycle in regulation would require a 

change in statute.

23 CFR 450.216 FTA/FHWA Development and content of the statewide transportation 

improvement program (STIP).

"(b) For each metropolitan area in the State, the STIP

shall be developed in cooperation with the MPO 

designated for the metropolitan area."

Recommend adding something to the effect of "the STIP 

development schedule shall take into account the 

metropolitan planning organization (MPO) processes for 

TIP development, including review of the draft TIP 

project list, public involvement, and meeting schedules of 

the technical and policy boards."

Since the MPO TIPs shall be included without change in 

the STIP [450.216 [b]], and since there can be 

repercussions if a MPO TIP is not ready in time to be 

included in the STIP (450.218 (c)), it is important that the 

cooperation between the State and the MPOs during 

STIP development take into account the time necessary 

to develop the MPO TIP.

Hampton 

Roads 

Transportation 

Planning 

Organization

This is not desirable - The current regulation 

calls for “...the cycle for updating the TIP must be 

compatible with the STIP development and 

approval process.” This is appropriate because a 

State may have multiple MPO TIPs that might be 

on different timeframes, while there is only one 

STIP. 

23 CFR 450.216 FTA/FHWA Development and content of the statewide transportation 

improvement program (STIP).

"(I] The STIP may include a financial plan that 

demonstrates how the approved STIP can be 

implemented..."

Hampton 

Roads 

Transportation 

Planning 

Organization23 

This is a useful suggestion, however, to change 

the regulations it would require a change in 

statute. Current statute states that the STIP “may 

include a financial plan.” 
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Since the STIP is required to be fiscally constrained, it is 

recommended that this statement be revised to read the 

STIP shall include a financial plan.

CFR 450.216

23 CFR 450.206, 

450.306, 

450.214, 

450.222, 450.336

FTA/FHWA Issue: Maintain flexibility and progress made in 

streamlining. We are not suggesting these CFR's as 

candidates for review, but if they are selected, we 

strongly encourage retaining the flexibility and important 

streamlining provisions already contained in these 

regulations including:

1. Continue planning factor provision as a 

"consideration" rather than a "mandate" and do not 

expand the already comprehensive list of planning 

factors;

2. continue to allow the option of a policy-based 

statewide long-range transportation plan, rather than 

project specific; and

3. continue to exempt the planning process from NEPA.

Since the passage of ISTEA in 1991, major efforts to 

streamline the planning process have been 

accomplished incrementally with each subsequent 

authorization act. The regulatory review process should 

not circumvent the progress made to date and in fact 

should consider further streamlining efforts.

Montana DOT This commenter does not request any changes

23 CFR 450.324 FTA/FHWA Development and content of the transportation 

improvement program (TIP).

"(a) The TIP shall cover a period of no less than four 

years, be updated at least every four years, and be 

approved by the MPO and the Governor."

Due to the importance of keeping programming 

information up-to-date, it is recommended that the 

update period for the TIP be at least every two years.

Updating the TIP every two years maintains a 

programming document that always shows planned 

obligations at least two years into the future. This is 

preferable to allowing the programming document to get 

down to showing only the current year's planned 

obligations. (This change would need to be made in 

concert with a change to 450.216 (a] regarding the 

Hampton 

Roads 

Transportation 

Planning 

Organization

States and MPOs are required update the 

STIP/TIP at least once every 4-years. They may 

update the STIP/TIP more frequently if 

necessary. Any change to the 4-year minimum 

STIP/TIP cycle in regulation would require a 

change in statute.
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update schedule for the STIP.)

23 CFR part 450, 

Appendix A

FTA/FHWA A long-standing dilemma for transportation agencies is 

the tendency for decisions made in the planning process 

to be re-opened in the NEPA process – in essence, 

starting over – rather than using the planning decisions 

as the starting point for the NEPA review. Although some 

progress was made in SAFETEA LU and FHWA 

regulations, there remains a deeply engrained reluctance 

to adopt the mode and corridor decisions from the 

planning process as the basis for the Purpose and Need 

in NEPA documents. 

FHWA should establish a presumption that decisions 

made in the planning process on corridor, facility type, 

and mode will be adopted in the NEPA process.

AASHTO This is an interesting recommendation; 

FHWA/FTA might explore how this might work 

and whether it could be adopted without statutory 

authority.

Currently, Appendix A of the planning regulation 

provides guidance on the use of planning 

information to inform the NEPA process. It is nonbinding and at the discretion of the parties 

responsible for NEPA review as to the extent and 

appropriateness of previous planning information 

that is used to inform NEPA versus the 

development of new information in NEPA. 

23 CFR part 450, 

subparts B and C

FTA/FHWA Planning regulations for MPO’s and for Statewide 

planning – the planning regulations for MPO’s are 

distinct and different than those for statewide planning 

yet the expected end product is a consolidated 

transportation plan that covers the whole state. The 

disparate requirements and timelines create confusion 

and difficulties in delivering for the public an 

understandable vision and implementation plan for 

transportation in the State. It is possible to have mismatched or even conflicting goals and priorities even 

though there is a regulation calling for cooperative and 

collaborative planning to occur. 

Colorado DOT Provisions in SAFETEA-LU that call for different 

planning processes for MPOs vs. States have 

been identified in discussions with stakeholders 

associated with reauthorization. With enactment 

of new Surface Transportation Program 

Authorization expected in the relatively near 

future, it is very likely that a new rulemaking 

process will be undertaken to reflect new 

statutory requirements and authorities, replacing 

the current rule. This will certainly include 

attention to the alignment of metropolitan and 

statewide transportation planning, which can be 

fully vetted with all stakeholders and the public 

during that process.

23 CFR part 450, 

subpart C

FTA/FHWA The requirement for projects to be listed in the long 

range plan for MPO areas, particularly those in nonattainment for the clean air act, creates a “pipeline” of 

projects with strong political expectations for over a 20 

year horizon. Changing emphasis areas or funding types 

or policy priorities are not easily addressed due to the 

resistance to deviate from that list once it is established.

Colorado DOT The requirement for Statewide and Metropolitan 

Transportation plans to cover a 20-year horizon is 

in Statute. Any changes to regulations would 

require a change in statute. However, the State 

DOT’s and the MPO’s have the option of 

amending their plans at any time.

23 CFR part 450, 

subpart C

FTA/FHWA The regulations require that “all regionally significant 

projects requiring an action by FHWA or FTA” be 

included in the TIP/STIP. The regulations also state that 

“ the STIP shall include for project or phase (e.g. 

environmental/NEPA...)” descriptive material, cost, etc.. 

AASHTO The basis for requiring a subsequent phase of a 

project in a STIP/TIP prior to final NEPA approval 

is that in order for FHWA to make a decision 

under NEPA, there must be a proposed action 

that requires FHWA approval. 
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Since one of the phases is environmental /NEPA the 

culmination of that phase with a ROD or FONSI 

signature should be done if the cost for that phase was 

included in the STIP. A memo written by FHWA states 

that a ROD or FONSI cannot be signed unless the next 

phase of the project is listed in the TIP/STIP with funds 

identified in addition to being listed in the fiscally 

constrained plan. This seems to require that at least 2 

phases be included in the TIP/STIP. This is an 

interpretation of the regulations that has created 

hardship for DOT’s trying to advance projects with very 

constrained funding streams where the project may have 

to be implemented in phases over a long period of time. 

Provide new guidance on the interpretation of signing of 

ROD or FONSI without having additional project phases 

included in the TIP/STIP. 

23 CFR part 450, 

subpart C

FTA/FHWA Signing of ROD or FONSI and TIP/STIP – the 

regulations require that “all regionally significant projects 

requiring an action by FHWA or FTA” be included in the 

TIP/STIP. The regulations also state that “ the STIP 

shall include for project or phase (e.g. 

environmental/NEPA...)” descriptive material, cost, etc.. 

Since one of the phases is environmental /NEPA the 

culmination of that phase with a ROD or FONSI 

signature should be done if the cost for that phase was 

included in the STIP. A memo written by FHWA states 

that a ROD of FONSI cannot be signed unless the next 

phase of the project is listed in the TIP/STIP with funds 

identified in addition to being listed in the fiscally 

constrained plan. This seems to require that at least 2 

phases be included in the TIP/STIP. This is an 

interpretation of the regulations that has created 

hardship for DOT’s trying to advance projects with very 

constrained funding streams where the project may have 

to be implemented in phases over a long period of time

Colorado DOT The basis for requiring a subsequent phase of a 

project in a STIP/TIP prior to final NEPA approval 

is that in order for FHWA to make a decision 

under NEPA, there must be a proposed action 

that requires FHWA approval. 

23 CFR part 450, 

subparts B and C

FTA/FHWA Integrating Long Range Plans – the regulations require 

that many areas be addressed in the Statewide long 

range plan including safety, transit, rail, security, 

aviation, freight, and bike/ped. Varying guidelines from 

FHWA, FTA and FRA set the framework for these 

separate documents resulting in a fragmented approach 

Colorado DOT The framework for these documents is based on 

current statute and the regulations are consistent 

with the statute. 
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that creates silos instead of integration. The regulations 

could be re-structured to reflect a “one DOT” and a more 

comprehensive approach to transportation planning.

N/A FTA/FHWA Projects funded under both FTA and FHWA programs 

must be reflected in states’ STIPs. The two modal 

administrations have very different processes, 

terminology, timelines, and in some cases, preferences 

for how projects are represented in STIPs. This requires 

states to spend extra time weeding through two different 

and distinct sets of requirements. This is particularly 

problematic with the requirements that revolve around 

financial and information systems and we are often 

forced to hand enter project data and to specially 

manipulate data to wedge FTA projects into STIPs. The 

same planning laws apply to both highway and transit 

projects yet requirements associated with them vary by 

modal administration. 

Processes, timelines, information systems, and other 

process‐related requirements imposed by all modal 

administrations should be the same. Consistency in the 

requirements of all federal modal administrations will 

save MPOs and state DOT considerable time and 

reduce costs.

AASHTO More information on the specifics of what is at 

issue would be helpful. It is possible the 

concerns, once fully understood, could be 

addressed by administrative action. FHWA and 

FTA have joint statutory and regulatory 

requirements and timelines for how projects are 

represented in the STIP/TIP. Projects are 

entered into the STIP/TIP prior to obligation of 

funds and entry of project information into 

financial and information systems.

23 U.S.C. 

134/135

FTA/FHWA The TIP/STIP amendment/modification process is 

excessively lengthy and creates voluminous paperwork 

even when making only a minor change for project costs 

or funding sources. Furthermore, TIP information tends 

to be at least a year old by the time the federal reviewer 

approves each individual project. 

Eliminate the modification process for projects where the 

cost changes or funding source changes are minor. For 

example, allow cost/funding source changes within 20% 

of the TIP/STIP-approved project cost, without triggering 

the TIP/STIP amendment/modification process. 

AASHTO This is desirable - The current regulation provides 

flexibility to States/MPOs to set criteria for 

determining whether changes to cost or schedule 

for projects should be effected as “administrative 

modifications.”

46 CFR Part 390 

and 46 CFR Part 

391

MARAD Commenter requests that MARAD enable a Capital 

Construction Fund to be used for capital lease payments.

Some of the committee reports that accompanied the 

Tax Reform Act of 1986, expressed the view that 

withdrawals from Capital Construction Funds (CCF) 

Horizon Lines, 

Inc., and 

Masters, Mates, 

& Pilots

The current statutory language does not allow for 

funding leases. Under 46 U.S.C. § 53510, the tax 

basis of the acquired asset must be reduced by 

the amount of the withdrawal. Leases, even if 

capitalized under generally accepted accounting 

principles, do not have a tax basis. Lease 
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

could be used for the lease of an agreement vessel if the 

lease period was five years or more. However, the Tax 

Reform Act of 1986 did not amend the statute to allow for 

leases to be funded by CCF withdrawals. Under the 

current statute, CCF withdrawals may be used for: “(1) 

the acquisition, construction, or reconstruction of a 

qualified vessel or a barge or container that is part of the 

complement of a qualified vessel; or (2) the payment of 

the principal on indebtedness incurred in the acquisition, 

construction, or reconstruction of a qualified vessels or a 

barge or container that is part of the complement of a 

qualified vessel.” Horizon seeks to have the term, 

“acquisition,” include acquisition through a capital lease.

payments are a business expense, not payment 

of principal. A CCF helps out in a vessel lease 

situation by being available to the vessel owner.

Thus, the CCF can operate to provide tax savings 

to the vessel owner that can result in lower lease 

payments by the lessee.

46 CFR § 

298.13(i)

MARAD Commenter seeks increased flexibility under the Title XI 

loan guarantee program for MARAD to consider worthy 

applications. MARAD may waive this requirement of 46 

CFR § 298.13(i), which requires an applicant to have 

long term debt no greater than twice its equity, if there is 

“adequate security.” Horizon urges MARAD to modify its 

rules to make clear that it has the flexibility to consider 

applications from freight operators with an established 

record of revenue generation, even if such applications 

would not meet either the 2-1 debt/equity test or the 

current “security” waiver test. 

Horizon Lines, 

Inc.

Horizon’s request to forego “adequate security” is 

unreasonable, as 46 U.S.C. § 53711(a) requires 

the applicant to convey a security interest “the 

Secretary or Administrator considers necessary 

to protect the interest of the United States 

Government.”

49 CFR 571.110

49 CFR 571.120

NHTSA Suggests that NHTSA delete the requirements for 

relabeling a vehicle if a vehicle modifier adds more than 

the lesser of 100 lb or 1.5% of a vehicle’s GVWR. 

NADA

Docket No. 

OST-2011-

0025-0085.2

NHTSA recently completed rulemaking on this 

issue by publishing a Final Rule, Response to 

petitions for reconsideration in April 2010. 

NHTSA denied petitions on this specific issue 

because of the safety concerns about vehicle 

overloading, which could lead to tire failures and 

subsequent vehicle loss-of-control.

49 CFR Part 26, 

DBE

OST DBE requirements should be made more consistent with 

transportation construction industry practices.

ARTBA Normal transportation construction industry 

practices can create barriers to DBE firms’ ability 

to compete on a level playing field. The DBE rule 

intentionally creates some differences in order to 

mitigate barriers.

49 CFR Part 26, 

DBE

OST Contrary to the present rule, DBE subcontractors and 

prime contractors should be able to count credit for items 

ARTBA This issue has been considered extensively in 

public meetings, an ANPRM, NPRM, and final 
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

purchased by the subcontractor from its prime 

contractor.

rule, with the explicit decision of S-1/S-2 being to 

leave the current rule as is. This item should not 

be considered further at this time.

49 CFR Part 26, 

DBE

OST Prime contractors should be able to assist DBEs in 

building capacity without being discouraged from doing 

so by the rule.

ARTBA The comment does not specify what regulatory 

changes are desired. The comment may refer to 

requirements that DBE firms be independent, 

central to maintaining program integrity. 

Independence requirements should not be 

weakened.

49 CFR Part 26, 

DBE

OST Permit dual MBE/WBE goals when needed to address 

discrimination, on a contract-by-contract basis.

Illinois DOT IDOT tried to get a waiver to permit dual goals on 

a recent mega-project, and was denied because 

it did not make a strong enough case. The rule 

already permits waivers with respect to goals, 

and a number have been granted when sufficient 

evidence was presented. No regulatory change 

is needed on this point.

49 CFR Part 26, 

DBE

OST Allow states to count toward overall goal attainment DBE 

participation on contracts that do not have Federal 

funding.

Illinois DOT Because the DBE rule applies only to Federallyfunded contracts, this idea does not appear 

feasible.

49 CFR Part 26,

DBE

OST Permit monetary incentives for meeting DBE contract 

goals or penalties for failing to do so.

Illinois DOT This idea is infeasible because it raises narrow 

tailoring issues under constitutional standards 

applying to affirmative action programs.

49 CFR Part 26, 

DBE

OST Modify size standards for suppliers (e.g., of fuel oil) to 

account for increases in commodity process, which 

artificially increase gross receipts. Use SBA standards.

Deborah 

Stange, West 

Fuels Inc.

By statute, we must use SBA standards, and we 

are also subject to a statutory gross receipts cap.

49 CFR Part 26, 

DBE

OST There should be time limits for DOT response to waiver 

requests.

Colorado DOT While DOT responses have taken too long in 

some instances, it is doubtful that a specific 

response time frame in the rule would be 

meaningful.

49 CFR Part 26, 

DBE

OST It will be more burdensome for contractors to make good 

faith efforts once the interstate certification provision 

goes into effect, since they would have to contact more 

out-of-state firms.

Colorado DOT Because interstate certification provision does not 

go into effect until next year, this is speculative at 

this point. It is likely that any additional workload 

for contractors will not be overwhelming, and in 

any case would serve program objectives.

49 CFR Part 26, 

DBE

OST Believes operating administration DBE requirements 

conflict

with each other and with state and local DBE 

requirements. Want local agencies to be able to use any 

OAAmerican 

Public Works 

Association

Issue arises in rare cases (e.g., Jacksonville, FL) 

where same local agency runs transit system and 

builds roads. FTA and FHWA may have 

approved different goals for the projects they 

fund. While this situation can be frustrating for 
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

approved DBE program and goals for

the local agency, provided the local agency elects to do 

so by advising the granting agency of its election in 

writing.

the local agency, the local transit goal may well 

not be appropriate to use for highway projects to 

which a statewide goal applies, because of 

differences in the markets for the two types of 

projects.

49 CFR Part 26, 

DBE

OST Go back to goal/requirements program, which would be 

easier and cheaper to administer than current program

aclements -

Ideascale

Not feasible because of constitutional 

requirements for program

49 CFR Part 26, 

DBE

OST DBE standards do not harmonize with stage registries 

and net worth requirements are not realistic in some 

industries

Community 

member -

Ideascale

PNW has recently been reviewed and adjusted. 

Not appropriate to change DOT certification 

standards because states might have different 

criteria for non-Federally funded programs.

Americans with 

Disabilities Act 

(ADA) rule, 49 

CFR Part 37.

OST/C Wants pre-rulemaking consultation, industry working 

groups etc. on ADA matters

SEPTA Industry has always had ample input into ADA 

rulemaking issues. While there can appropriately 

be stakeholder consultations on issues (e.g., as 

the Department has done with respect to the DBE 

rule), there should not be any requirement for 

industry vetting before proposals are offered for 

public comment.

49 CFR Part 40; 

49 CFR Part 382

Drug Testing

OST/ODAPC 

and C; 

FMCSA

Currently, large employers have to send blind specimens 

to testing laboratories to check on accuracy of testing 

process. ATA believes that laboratories or a “standards 

monitoring body” should do this instead of trucking 

companies. 

American 

Trucking 

Associations 

(ATA)

Part of the value of blind specimens is that they 

come from the same sources – employers – that 

send in real employee specimens. This makes 

the blind specimen a real test of not only the 

laboratory’s equipment but also the 

documentation of the specimen from the 

collection site. A laboratory sending a blind 

specimen to itself would not achieve this objective 

as well. There are no “standards monitoring 

bodies” to perform this function. In addition, as 

ATA points out, few employers have to send 

these specimens, and given the size of the 

companies involved and the small number of 

specimens that must be sent, the burden is small.

49 CFR 

192.1009, 192-

271-287, Form 

7100.1-2, LNG, 

Compression 

Fittings

PHMSA 

(OPS)

PHMSA should reconsider actions that were taken in a 

recent final rule involving Mechanical Fittings.

Norton 

McMurray 

Manufacturing 

Company

The rulemaking actions regarding mechanical 

fittings, including the new Mechanical Fitting 

Failure Report, were finalized on February 1, 

2011. This rulemaking was part of an extensive 

public process that provided the affected entities 

with multiple opportunities to comment. 

NORMAC’s comments to the proposal and the 

information collection portion were addressed in 
USDOT – Retrospective Regulatory Review – Attachment 1 - No Further Action

REGULATION

OPERATING 

ADMIN./ OST 

OFFICE

COMMENT

(JUSTIFICATION FOR REVIEW) COMMENTER RESPONSE

the associated federal register publications. In 

addition, each person has the opportunity to 

appeal a final rule within 30 days of publication. 

No appeals were received in regard to this final 

rule. PHMSA does not believe that enough time 

has elapsed to justify any changes to the recently 

adopted reporting requirements for mechanical 

fittings.

N/A PHMSA 

(OPS)

AOPL and API urge the DOT to develop with EPA either 

a new Memorandum of Understanding or a letter 

agreement addressing this issue as soon as possible, to 

reduce the confusion surrounding dual regulatory 

jurisdiction over pipeline facilities and to harmonize two 

separate regulatory schemes, ultimately streamlining the 

inspection process for operators of these breakout tanks.

Association of 

Oil Pipe 

Lines/American 

Petroleum 

Institute

PHMSA continues to work with EPA and the US 

Coast Guard on a variety of issues, including 

ways to improve communication and planning; 

while we do not have clear evidence of any 

significant problems created by the status quo, 

both EPA and DOT continuously seek to improve 

our coordination in carrying out our statutorily 

mandated missions.
Attachment 2

DOT Regulatory Review Plan 

This attachment provides DOT’s current Regulatory Review Plan, which was published as 

Appendix D to DOT’s entry in the Unified Agenda on November 24, 2008.
Attachment 2 - Appendix D

71404 Fpderai K!~gif'ter/' .. ToJ. 7~i, )\iC]. :!27/Mrll1dav. Nij\,'lllliw 24, 200,,/lJniJi()d Agenda 

DOT 

New Jersey Avenue SE., Washington, 

DC 20590. 

Federal RajJroad Administrotion (FRA) 

Michelle Silva, Docht Clerk, Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE., Room W31-109, 

Wasflington, DC 20590; telephone (202) 

493-6030. 

Notional Highway Traffic Safety 

Administration (NHTSA) 

(Name of contact person), National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue SE" 

Washington, DC; 20590, 

Federal Transit Administration (FTA) 

(Name of contact person), Federal 

Transit Administration, 1200 New 

jersey Avenue SE., Washington, DC 

20590. 

Saint Lawrence Seaway Development 

Corporation (SLSDC) 

(Name of contact person), Saint 

Lawrence Seaway Development 

Corporation, 1200 New Jersey Avenue 

SE., Washington, DC 20590. 

Pipeline and Hazardous Materials 

Safety Administration (PHMSA) 

(Name of contact person), Pipeline 

and Hazardous Materials Safety 

Administration (PHMSA), 1200 New 

Jersey Avenue SE., Washington, DC 

20590. 

Maritime Administration (MARAD) 

Kimberly Lewis, Maritime 

Administration, 1200 New Jersey 

Avenue SE., Washington, DC 20590, 

(202) 366-5158, 

The Research and Innovative 

Technology Administration (RITA) 

(Name of contact person), The 

Research and Innovative Technology 

Administration (RITA),1200 New Jersey 

Avenue SE., Washington, DC 20590, 

Federal Aviation Administration (FAA) 

To obtain a copy of a specific Federal 

Aviation Administration (FAA) 

regulatory document in the agenda, you 

should communicate directly with the 

contact person listed with the regulation 

at the addwss or telephone numher 

listed; access the FAA's Regulations and 

Policies web page at 

http://www,faa,gov/ 

regulationspolic:ies/; call (202) 267-

961l0; or write to us at Federal Aviation 

Administration, Office of Rulelllaking, 

ARM-I, 800 Independence Avenue SW., 

Washington, DC 20591. 

Office of the Secmtary (OST) 

To obtain a copy of a specific 

regulatory docnment or to receive future 

copies of the Department's regulatory 

agenda write to: Assistant General 

Counsel for Regulation and 

Enforcement, C-50, Office of the General 

Coullsel, Department of Transportation, 

1200 New Jersey Avellue SE., 

Washington, DC 20590, (202) 366-4723, 

Appendix B-Gencral Rulemaking 

Contact Persons 

The following is a Jist of persons who 

can be contacted within the Department 

for general information concerning the 

rulemaking process within the various 

operating administrations, 

FAA - Rebecca MacPherson, Office of 

Chief Counsel, Regulations and 

Enforcement Division, 800 

Independence Avenue SW" Room 

915A, Washington, DC 20591; telephone 

(202) 267-3073, 

FHWA - Jennifer Outhouse, Office of 

Chief Counsel, 1200 New Jersey Avenue 

SE., Washington, DC 20590; telephone 

(202) 366-0761. 

FMCSA Theresa M, Rowlett, 

Regulatory Ombudsman, 1200 New 

Jersey Avenue SR, Washington, DC 

20590; telephone (202) 366-0596. 

NHTSA - Steve Wood, Office of Chief 

Counsel, 1200 New Jersey Avenue SE., 

Washington, DC 20590; telephone (202) 

366-2992, 

FRA - Kathryn Shelton, Office of 

Chief Counsel, 1200 New jersey Avenue 

SE., Room W31-214, Washington, DC 

20590; telephone (202) 493-6063, 

FTA - Linda Lasley, Office of Chief 

Counsel, 1200 New Jersey Avenue SE., 

Room E56-202, Washington, DC 20590; 

telephone (202) 366-4063. 

SLSDC - Carrie Mann Lavigne, Chief 

Counsel, 1200 New Jersey Avenue SE., 

Washington, DC 20590; telephone (202) 

366-0091, 

PHMSA - Patricia Burke, Office of 

Chief Counsel, 1200 New Jersey Avenue 

SE., Washington, DC 20590; telephone 

(202) 366-4400, 

MARAD - Christine Gurland, Office of 

Chief Counsel, Maritime 

Administration, 1200 New Jersey 

Avenue SE., Washington, DC 20590; 

telephone (202) 3n6-5157, 

RITA - Robert Monniere, Office of 

ChiefCollnsel, 1200 New Jersey Avenue 

SE., Washington, DC 20590; telephone 

(202) 366-5498. 

OST - N()il Eisner, Office of 

Regulation and Enforcement, 1200 New 

Jersey Avenue SE., Washington, DC 

20590; telephone (202) 366-4723. 

Appendix C-Puhlic Rulemaking 

Dockets 

All comments via the Internet are 

submitted through tho Federal Docket 

Management System (FDMS) at the 

following address: 

http://www.regulations,gov, The FDMS 

allows the public to search, view, 

download, and comment on all Federal 

agency rulemaking documents in one 

central online system, The above 

referenced Internet address also allows 

the public to sign up to receive 

notification when certain documents are 

placed in the dockets, 

The public also may review regulatory 

dockets at, or deliver comments on 

proposed rulemakings to, the Dockets 

Office at 1200 New jersey Avenue SE., 

Room W12-140, Washington, DC 20590, 

1-800-647-5527, Working Hours: 9-5, 

Appendix D-Review Plans for Section 

610 and Other Requirements 

Part I - The Plan 

General 

The Department of Transportation has 

long recognized the importance of 

regularly reviewing its existing 

regulations to determine whether they 

need to be revised or revoked. Our 1979 

Regulatory Policies and Procedures 

require such reviews, We also have 

responsibilities under Executive Order 

12866 "Regulatory Planning and 

Review" and section 610 of the 

Regulatory Flexibility Act to conduct 

such reviews, This includes the use of 

plain language techniques in new rules 

and considering its use in existing rules 

when we have the opportunity and 

resources permit its use, The 

Department initiated a lO-year review 

plan, We will begin a new 10-year 

review cycle with the fall 2008 agenda. 

We are committed to continuing our 

reviews of existing rules and, if needed, 

will initiate rulemaking actions based 

on these reviews, 

Section 610 Review Plan 

Section 610 requires that we conduct 

nlViews of rules that (1) have been 

publisher! within the last 10 years and 

(2) have a "significant economic impact 

on a substantial number of small 

entities" (SEIOSNOSE), It also requires 

that we publish ill the Federal Register 

each year a list of any such rules that 
Attachment 2 - Appendix D

7140S 

DOT 

---_. __ ._--_. 

we will revi["\~' during thr, lW».t YlOar. 

The Office of the Secretary alld ·eacll of 

thn Department's Operatiilg 

Administratiolls havr, a 1 O·yr,ar review 

plan. These reviews comply with 

snctioll GI0 of tlw Regulatory Flexibility 

Act. 

Other f1Ul'i/?w Plan(s} 

All clements of the D[)partmrmt, 

except for tbe Federal Aviation 

Administration (FAA), have also r,lec:ted 

to use this 1 O·year plan procr,ss to 

comply with the review requirements of 

the Department's Regulatory Policies 

and Procedures and Executive Order 

12866. FAA is using a different 

approach, which is described in part II 

to this appendix. 

Changes to the Review Plan 

Some reviews may be conducted 

earlier than schr,duled. For example, to 

the extent resources permit, the plain 

language reviews will be conducted 

more quickly. Other events, such as 

accidents, may result in the need to 

conduct earlier reviews of some rules. 

Other factors may also result in the need 

to make changes; for example, we may 

make changes in response to public 

comment on this plan or in response to 

a Presidentially mandated review. If 

there is any change to the review plan, 

we will note the change in the following 

agenda. For any section 610 review, we 

will provide the required notice prior to 

the review. 

Part II - The Review Process 

The Analysis 

Generally, the agencies have divided 

their rules into 10 different groups and 

plan to analyze one group each year. For 

Year 

purposes of these reviews, a y[)ar will 

coincide with the fall·to·fall schedule 

for publication of the agenda. Thus, 

Year 1 (2008) hegins in the faJI of 2008 

and ends ill the fall of 2009; Year 2 

(2009) begins in the fall of 2009 and 

ends in the fall of 2010: and so OIL We 

request public comment on the tiJJling 

oftlw reviews. For example, is there a 

wason for scheduling an analysis and 

review for a particular mle uarlier than 

we have'? Any comments concerning the 

plan or particular analyses should be 

submitted to the regulatory contacts 

listed in Appendix E, General 

Rulemaking Contact Persons. 

Section 610 Review 

The Agency will analyze each of the 

rules in a given year's group to 

determine whether any rule has a 

SEIOSNOSE and, thus, requires review 

in accordance with section 610 of the 

Regulatory Flexibility Act. The level of 

analysis will, of course, depend on the 

nature of the rule and its applicability. 

Publication of agencies' section 610 

analyses listed each fall in this agenda 

provides the public with notice and an 

opportunity to comment consistent with 

the requirements of the Regulatory 

Flexibility Act. We request that public 

comments be submitted to us early in 

the analysis year concerning the small 

entity impact of the rules to help us in 

making our determinations. 

In each fall agenda, the agency will 

publish the results of the analyses it has 

completed during the previous year. For 

rules that had a negative finding on 

SEIOSNOSE, we will give a short 

explanation (e.g., "these rules only 

establish petition processes that have no 

OFFICE OF THE SECRETARY 

SECTION 610 AND OTHER REVIEWS 

Regulations To Be Reviewed 

(;ost impact'· or "these rules do not 

apply to allY small entities"). For parts, 

subparts, or other disc:rete sec:tions of 

rules that do h;lVe a SEIOSNOSE, we 

will announce that we will be 

conductillg a formal sectioll Ell0 review 

during the following 12 months. At this 

stage, we will add illl entry \0 the 

Agenda in the prerulemaking section 

dpscribing thll review ill morc detail. We 

also will seek puhlic comment on how 

best to less(m the impact of thesl" rules 

and provide a name OJ' docket to which 

public comments can be submitted. In 

some cases, the section 610 review may 

be part of another unrelated review of 

the rule. In such a case, we plan to 

clearly indicate which parts of the 

review are being conducted under 

section 610. 

Other Reviews 

The Agency will also examine the 

specified rules to determine whether 

any other reasons exist for revising or 

revoking the rule or for rewriting the 

rule in plain language. In each faIl 

agenda, the Agency will also publish 

information on the results of the 

examinations completed during the 

previous year. 

Part III - List of Pending Section 610 

Reviews 

The Agenda identifies the pending 

DOT Section 610 Reviews by inseriing 

(Section EllO Review) after the title for 

the specific entry. Also, a 

Governmentwide list of section 610 

reviews can be located through all 

online search at www.reginfo.gov. For 

further information on the pending 

roviews, see the agenda entries. 

Analysis Year Review Year 

49 CFR parts 91 through 99 and 14 CFR parts 200 through 212 ................................... 2008 2009 

2 48 CFR parts 1201 through 1253, and new parts and subparts ...................... 2009 2010 

3 14 CFR parts 213 through 232................ ...... ...... 2010 2011 

4 14 CFR parts 234 through 254 2011 2012 

5 14 CFR parts 255 through 298 and 49 CFR part 40 ......... ........ 2012 2013 

6 14 CFR parts 300 through 373......................... . ... .... ..... .. ....... ...... 2013 2014 

7 14 CFR parts 374 through 398 . .................. .... ........ .. ..... . 2014 2015 

8 14 CFR part 399 and 49 CFR parts 1 through 11 2015 2016 

__ .Jo __ G; g~~ ~:~: ~~ :~~~~~~ ~~ ;~cl~~rt~41th;O.U9~~~~~~~·:~~~ ___ . ____ ~~~.L...~~ __ ;._~_~~. ___ ._;_~_~~ 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

49 CFR part 91 . International Air Transportation Fair Competitive Practices 

49 CFR part 92 . Recovering Debts to the United States by Salary Offset 

49 eFR part 93 . Aircraft Allocation 
Attachment 2 - Appendix D

7110{) Fuderal Rf~gisler / Vol. 73, ]\;0, 2L'i / MUlldav, :'>Juvellllwr 24, 200e.,' [In; li(;rl ;\gnllda 

------

DOT 

49 CFR part 95 - Advisory Committees 

49 CFR part 98 - Enforcement of Restrictions on Post-Employment Activities 

49 CFR part 99 - Employee Responsibilities and Conduct 

14 CFR part 200 - Definitions and Instructions 

14 eFR part 201 - Air carrier authority under subtitle VII of title 49 of The United States Code-[AmendedJ 

14 CFR part 203 - Waiver of Warsaw Convention liability limits and ddenses 

14 eFR part 204 - Data to support fitness determinations 

14 erR part 205 - Aircraft accident Jiability insurance 

14 CrR part 20G - CertificMes of public convenience and necessity: Special authoriziltiolls and exemptions 

14 CFR part 207 - Charter trips by U,S, scheduled air carriers 

14 CFR part 208 - Chartelr trips by U,S, charter air carriers 

14 CrR part 211 - Applications for permits to foreign air carriers 

14 CFR part 212 - Charter rules for U,S, and foreign direct air carriers 

FEDERAL AVIATION ADMINISTRATION 

SECTION 610 REVIEW PLAN 

Year Regulations to be Reviewed Analysis Year Review Year 

14 CFR parts 119 through 129 and parts 150 through 156 ... 2008 

2 14 CFR parts 133 through 139 and parts 157 through 169 ................ 2009 

3 14 CFR parts 141 through 147 and parts 170 through 187 .................... .. . ............. 2010 

4 14 CFR parts 189 through 198 and parts 1 through 16 ............................... .. . ......... " .. 2011 

5 14 CFR parts 17 through 33 ..... .. ............ . 2012 

6 14 CFR parts 34 through 39 and parts 400 through 405 . . . . . . . . . .. .... 2013 

7 14 CFR parts 43 through 49 and parts 406 through 415 .. , ................... , 2014 

8 14 CFR parts 60 through 77 . .. ............... . . .................. 2015 

9 14 CFR parts 91 through 105 .. .. ................................ .. 2016 

10 14 CFR parts 417 through 460 ............... .. 2017 

The FAA has elected to use the two-step, 2-year process used by most DOT modes in past plans, As such, the FAA 

has divided its rules into 10 groups as displayed in the table above, During the first year (the "analysis year"), 

all rules published during the previous 10 years within a 10 percent block of the regulations will be analyzed to 

identify those with a SEIOSNOSE. During the second year (the "review year"), each rule identified in the analysis 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

2018 

year as having a SEIONOSE will be reviewed in accordance with Section 610 (b) to determine if it should be continued 

without change or changed to minimize impact on small entities, Results of those reviews will be published in 

the DOT semiannual regulatory agenda, 

Tri-Annual Review Plan 

The FAA, in addition to reviewing its rules in accordance with the Section 610 Review Plan, has established a Triannual process to comply with the review requirements of the Department's Regulatory Policies and Procedures, 

Executive Order 12866, and Plain Language Revinw Plan, Our latest revinw notice was published November 15, 2007 

(72 FR 64170), In that notice we requested comments from the public to identify those regulations currently in 

effect that we should amend, remove, or simplify, We also requested the public provide any specific suggestions 

where rules could be developed as performance-based rathnr than prescriptive, and any specific plain-language that 

might be used, and provide suggested languagn on how those rules should be written, The FAA will review the 

issues addressed by the commenters against its regulatory agenda and rulemaking program efforts and adjust its regulatory 

priorities consistent with its statutory responsibilities, At the end of this process, the FAA will publish a summary 

and general disposition of comments and indicate, where appropriate, how we will adjust our regulatory priorities, 

Year 10 (fa" 2007) List of rules analyzed and summary of the results 

14 CFR part 91 - General Operating and Flight Rules 

• Section 610: The agency has conducted a 610 Review for this part and found three Amendments with SEIOSNOSE. 

Amendment No. 91-203 

• Amendment No, 91-203, pursuant to two legislative mandates, established requirements for an aircraft to have an 

operating transponder (basic transponder or Mode S transponder) with automatic altitude reporting equipment (Mode 

e transponder) when operating in the vicinity of certain primary airports for which a terminal radar approach control 

sf)fvice area had been established, and in other airspace at and above 10,000 feet Illean sea level. The Airport and 

Airway Safety and Capacity Expansion Act of 1987 (Pub, L. 100-223, December 30, HJ87) required the FAA to issue 

regulations requiring the use of a transponder with Mode C capability in terminal airspace above a miniIllum altituciD 

to he determined by tl18 FAA. These revisions were intended to reduce the potential for midair collisions between 

ain:rHft llllCier the control of air traffic control (ATC) and thost) that chose to operate without ATC assistance, 
Attachment 2 - Appendix D

Federal Register / VnJ. n, No, 227/ T\'lc;n';il\', :\.)nv8l1lbcr 24, 20(1) / Ullified :\gcnda 71407 --~'" .... _ .... <"-.-< 

DOT 

UrigiJl()l FAA finding: Initially, th8 

FAA found th<lt this amendment would 

not have a SEIOSNOSE. However, 

during the NPRM phase of this 

rulemaking, the FAA received 

numerous comments suggesting that the 

proposed rules would significantly 

impact small businesses, The FAA 

received milJlY comments from private 

airports, state aviation organizations, 

and private trade associations that 

indicated there would be a significant 

economic impact to private and public 

airports, as well as fixed based operators 

at those airports, Comments from 

businesses engaged in aerial agriculture 

and pest control, as well as aerial 

advertising, indicated that the proposed 

rules would have significant economic 

impact on these businesses also, 

Therefonl, the FAA reconsidered its 

finding and agreed that the comments 

indicated that there would be a 

SEIOSNOSE. 

To mitigate the impact on small 

entities, the FAA considered three 

alternative approaches to this 

rulemaking: (1) Delay implementation 

for a longer period; (2) establish 

different standards for small entities; 

and (3) design the airspace to minimize 

the impact. The FAA rejected the 

second and third approaches because it 

found them to be contrary to the 

legislative mandates, inequitable, and 

would result in a diminished safety 

benefit. The FAA recognized the 

economic benefit in delaying the 

implementation of this amendment for a 

longer period of time to allow for an 

increase in the supply of the required 

avionics that should lower the cost of 

this equipment. However, the FAA 

stated that the safety need was so great 

that it was necessary to move forward 

with the regulations, Therefore, instead 

of completely delaying the 

implementation date, the FAA 

implemented the regulations in two 

phases over a period of 18 months, 

Finding of this 5 USc. section 610 

analysis and review: Although the FAA 

attempted to mitigate the economic 

impact on small entities by delaying the 

implementation period, compliance 

with the amendment stili imposes a 

SEIOSNOSE. Therefore, based on this 

periodic analysis of the current impact 

of amendment No, 91-203 on small 

entities, there continues to be a 

SEIOSNOSE. No changes are needed 

because theSe) regulations are mandated 

by statute and illlpOSf~ the least burdmL 

Amendment No, 91-2(,3 

Amendmellt No, 91-263 required that 

certain airplanes be equipped with an 

FAA-approved terrain awareness and 

warning system (TAWS) (also referred 

to as an enhanced ground proximity 

waming system), It is an operating rul(" 

that affects all U,S,-registered turbinepowered airplanes with six or more 

passenger seats (exclusive of pilot and 

copilot seating), ThfJ rule promotes 

safety by increasing the warning times 

and situational awareness of flight 

crews to decrease the risk of controlled 

flight into terrain accidents, 

Original FAA finding: The FAA 

determined that this amendment would 

have a SEIOSNOSE. The FAA noted that 

the types of entities potentially affected 

by this rule would include 

manufacturers of transport category 

airplanes, manufacturers of ground 

proximity warning equipment, 

scheduled air carriers, and 

nonscheduled air carriers, The small 

entities that operate under part 91 that 

were expected to be impacted by this 

rule would include corporate, business, 

personal, instruction, aerial application, 

and local governments, The FAA 

estimated that the fleet of aircraft to 

which the rule would apply would be 

approximately 6,000 turbojets and 6,000 

turboprops, The small entities 

associated with this size fleet 

constituted a substantial number and 

the cost impact was considered to be 

potentially significant. Therefore, the 

FAA took measures to mitigate the 

economic impact on small entities, 

The FAA made efforts to reduce the 

impact on these potentially affected 

small entities by requiring a 

substantially less expensive and easier 

to install TAWS for part 91 operators, 

The FAA determined that there are two 

classes of TAWS equipment that can 

provide the desired level of safety: Class 

A, which includes a terrain situational 

awareness display, and Class B, which 

includes only the basic TAWS safety 

features, The FAA allowed part 91 

operators to achieve the desired safety 

levols by installing the less expensive 

Class B TAWS equipmont. This 

approach significantly reduced the cost 

of compliance to small entities, and still 

met the rule's safety goals, 

Finding of this 5 U,S,c. section 610 

analysis ol1d review: Although the FAA 

attempted to reduce the impact Oil the 

potentially affected slIJall entities hy 

requiring a substantially less ()xpensivf) 

and easier to install TAWS for part 91 

operators, compliance with tho 

amendment still imposes a SEIOSNOSE. 

Therefore, based on this periodic 

analysis of the current impact of 

amendment No, 91-263 on small 

entities, t1wre continuos to be a 

SEIOSNOSE. The benefits justify their 

costs and the regulations impose tlw 

least burden while still meeting the 

rule's safety goals. 

Amendment No, 91-276 (Reduced 

Vertical Separation Minimum in 

Domestic United States Airspace) 

Amendment No, 91-276, Reduced 

Vertical Separation Minimum in 

Domestic United States Airspace, 

expanded Reduced Vertical Separation 

Minimum (RVSM) operations to aircraft 

operating between 29,000 and 41,O()() 

feet in the airspace of the contiguous 48 

States of the United States and the 

District of Columbia, Alaska, that 

portion of the Gulf of Mexico where the 

FAA provides air traffic services, the 

San Juan Flight Information Region 

(FIR), and the airspace between Florida 

and the San Juan FIR, The amendment 

also required any aircraft that is 

equipped with TCAS II and flown in 

RVSM airspace to incorporate a version 

of TCAS II software that is compatible 

with RVSM operations. The goals of this 

amendment were to assist aircraft 

operators to save fuel and time, to 

enhance air traffic control flexibility, 

and to enhance airspace capacity, 

Original FAA finding: The FAA 

initially determined that this 

amendment would have a SEIOSNOSE. 

The FAA found through analysis that 

approximately 380 small operators 

would be significantly impacted by this 

amendment These small operators were 

expected to experience some 

disadvantages relative to large transport 

carriers, such as less flexibility for 

rotating their fleets through the RVSM 

approval process without a disruption 

in service, or suffering a significant fuel 

penalty by continuing to operate below 

29,000 feet if electing to not upgrade or 

to delay aircraft upgrade plans, 

Therefore, the FAA considered 

alternatives to mitigate the economic 

impact on these small entities, 

To reduce this economic impact, the 

FAA considered several alternative 

approaches to this rulemaking, 

including not enforcing the rule on 

small entities, [Jnder this scenario, 

small operators would avoid $285,5 

million in npgrade costs and downtime 
Attachment 2 - Appendix D

7l'WIJ 

DOT 

costs. but sidCtv would be compromised 

as a l'f"sult of some 2,400 non-approved 

aircraft operating in the RVSM stratum, 

Therefore, the FAA rejected this 

alternative. The FAA also considered a 

phased implementation of RVSM 

,llternative to give small entities greatHf 

!1nxihility. It considered implementation 

of H.VSM for a smaller band s11ell as 

33,000 to 37,000 feet with eventual 

expansion to the full RVSM envelope of 

29,000 to 41,000 feet. This alternative 

was rejected on the basis of simulations 

that revealed system safety and airspace 

management were negatively impacted 

when RVSM was applied in any altitude 

b;md 01 her than 2D.OO() 10 41,CJOU feet. In 

addition, controller workload, the 

potnntial for controller error, and 

opnratiollal complexitv all increased, 

The FAA fl~jectcd this illternative in 

favor of the rule, as well. The PAl, 

concluded that the fillal rtllE 

represented the best billance of costs 

and benefits for airspace users and air 

traffic providers without a reduction in 

aviatioll safety. 

Finding of this 5 U,S.c. section 610 

analysis and review: Since 

pronmlgiltion of this rule, circumstances 

have remained such thilt there is a 

continued need for the rule as 

impJel11rmtcd. Small entities mlain tlw 

option of not upgrading their equipment 

to take advantage of RVSM operations 

and continuing to operate below 29,000 

feet if they feel this is more to their 

advantagti, However, basf"d on this 

periodic analysis of the current impact 

of ,mwndment No. 91-2 7b, l\nduced 

Vertical Separation Minimum in 

Domestic United States Airspace, Of] 

small entities, there continues to be a 

SEJOSNOSE. The FAA cOllcludes that 

the final rule represents the best balance 

of costs and benefits for airspace users 

and air traffic providers without a 

reduction in aviation safety. 

FEDERAL HIGHWAY ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 

Year Regulations To Be Reviewed 

None "". 

23 CFR parts 1 through 260 

23 CFR parts 420 through 470 '"'''' 

2 

3 

4 

5 

6 

7 

8 

9 

10 

23 CFR part 500 """.. .."""".,,",,., "'''''''''''' 

23 CFR parts 620 through 637 

23 CFR parts 645 through 669 , .. ","""."'''''''".,, 

23 CFR parts 710 through 924 

23 CFR parts 940 through 973 , 

23 CFR parts 1200 through 1252 "" 

New parts and subparts """ .. """"" 

Federal-Aid Highway Program 

The FHWA has adopted regulations in 

title 23 of the CFR, chapter I, related to 

lhe Federal-Aid Highway Program. 

These regulations implement and carry 

out the provisions of Federal law 

relating to the administration of Federal 

aid for highways. The primary law 

authorizing Federal aid for highways is 

chapter I of title 23 of the U .S.c. Section 

145 of title 23 expressly provides for a 

federally assisted State program. For 

this reason, the regulations adopted by 

the FHWA in title 23 of the CFR 

primarily relate to the requirements that 

States must meet to receive Federal 

funds for the construction and other 

work related to highways. Because the 

regulations in title 23 primarily relate to 

Analysis Year Review Year 

2008 2009 

2009 2010 

2010 2011 

2011 2012 

2012 2013 

2013 2014 

2014 2015 

2015 2016 

2016 2017 

2017 2018 '" -,- -,,-~---,------

States, which are not defined as small 

entities under the Regulatory Flexibility 

Act, the FHWA believes that its 

regulations in title 23 do not have a 

significant economic impact on a 

substantial number of small entities. 

The FHWA solicits public comment on 

this preliminary conclusion. 

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 

Year 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

Regulations To Be Reviewed 

49 CFR parts 372, subpart A, and 381 

49 CFR parts 386, 389, and 395 . 

49 CFR parts 325, 388, 350, and 355, 

49 CFR parts 380 and 382 to 385 

49 CFR parts 390 to 393 and 396 to 399 '" ..... """" 

49 CFR parts 356, 367, 369 to 371, 372, subparts B-C ' 

49 CFR parts 373, 374, 376, and 379 , 

49 CFR parts 360, 365, 366, and 368 .' 

49 CFR parts 377, 378, and 387 . 

49 CFR parts 303, 375, and new parts and SUbparts""." . '" 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

49 CFR part 372, subpart A - Exmnptions 

---------,-----------,-----------

Analysis Year Review Year 

2008 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

20161 2017 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

2018 --------
Attachment 2 - Appendix D

FIHleral Register / VrJJ. 7:1, No. :2'21' Monday. >.Ju\','mtJ'_'1 ~4, ZU!)/l / Lnij:ed /\gt,ndn ijL!09 

-----

DOT 

4q erR part 381 Wilivers, exemptions, alld pilot programs 

Year 10 (fall 2007) List of rules analyzed and a summary of results 

49 CFH. part 375 - Transportation of Household Goods in lnterstiltc Commerce; Consumor Protection regulations 

• Section 610: An ongoing review of tbe regulations indicates there is a SEIONOSE. This part applies to small household 

goods firms tbat ilfCl engaged in interstate operations. 

6 General: The Agency will assess the need for changes once the review of thesp mgulations is complete. FMCSA's 

plain language review of thesp regulations indicates 110 nepcl for substilntial revision. 

49 CFR part 395 - I-lours of Service of Drivers 

• Revirw of the Hours of Service regulations will be dclilyed until year 2 of the upcoming fClview cyc:le. The Agency 

issues an interim final rule OIl Decnmber 17, 2007 (72 FR 71247). FMCSA anticipates publishing a final rule at 

the end of 200il. 

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 

Year Regulations To Be Reviewed Analysis Year Review Year 

2 

3 

4 

5 

6 

7 

8 

9 

10 

49 CFR 571.223 through 571.500, and parts 575 and 579 

23 CFR parts 1200 and 1300 ................. . 

49 CFR parts 501 through 526 and 571.213 ... . 

49 CFR 571.131, 571.217, 571.220, 571.221, and 571.222 .. 

49 CFR 571.101 through 571.110, and 571.135, 571.138 and 571.139 . 

49 CFR parts 529 through 578, except parts 571 and 575 

49 CFR 571.111 through 571.129 and parts 580 through 588 

49 CFR 571.201 through 571.212 ." 

49 CFR 571.214 through 571.219, except 571.217 . 

49 CFR parts 591 through 595 and new parts and subparts 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

49 CFR part 571.223 - Standard No. 223; Rear impact guards 

49 CFR part 571.224 - Standard No. 224; Rear impact protection 

49 CFR part 571.225 - Standard No. 225; Child restraint anchorage systems 

49 CFR part 571.301 - Standard No. 301; Fuel system integrity 

49 CFR part 571.302 - Standard No. 302; Flammability of interior materials 

2008 2009 

2009 2010 

2010 2011 

2011 2012 

2012 2013 

2013 2014 

2014 2015 

2015 2016 

2016 2017 

2017 2018 

49 CFR part 571.303 - Standard No. 303; Fuel system integrity of compressed natural gas vehicles 

49 CFR part 571.304 - Standard No. 304; Compressed natural gas fuel container integrity 

49 CFR part 571.305 - Standard No. 305; Electric-powered vehicles: electrolyte spillage and electrical shock protection 

49 CFR part 571.401 - Standard No. 401; Interior trunk release 

49 CFR part 571.403 - Standard No. 403; Platform lift systems for motor vehicles 

49 CFR part 571.404 - Standard No. 404; Platform lift installations in motor vehicles 

49 CFR part 571.500 - Standard No. 500; Low-speed vehicles 

49 CFR part 575 - Consumer information 

49 CFR part 579 - Reporting of Information And Communications About Potential Defects 

Plan for Evaluating the Effectiveness of Vehicle and Behavioral Programs, 2008-2012 

In addition to reviewing its rules in 

accordance with the Section 610 Review 

Plan, NHTSA issued an Evalllation 

Program Plan, 2008-2012, on August 21, 

2008. This document describes the 

Office of Regulatory Analysis and 

Evaluation's ongoing and planned 

(!valuations of existing Federal Motor 

Vehicle Silfety Standards and otlwr 

vehicle-safety, behavioral-silfety and 

consumer programs. It also summarizes 

the results of completed program 

evaluations. On August 29, 20013, 

NHTSA also issued a notice in the 

Federal Register (page 51045) inviting 

public comment on the plan. You may 

review this plan at http://wwwnrd.llhtsa. dot .gov /Pubs/ 81 0983 .PDF. 

You may review the Federal Register 

notice at 

http:// edocket.access.gpo.gov / 200B/pdf! 

EB-20061.pdf or in HTML format at 

http:// edocket.access.gpo.gov / 2008/EB20061.htm. 

You may comnwnt until December 29, 

2008, by accessing the FDMS at 

http://www.regulations.gov. Your 

comments should make reference to 

Docket No. NHTSA-2008-0143. The 

notice explains how to send commeJJts. 

FEDERAL RAILROAD ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 
Attachment 2 - Appendix D

71410 

DOT 

Federal Register / Vol. n, Nu. Z:.~7 / MUllciC1\, ~~()veJlJheJ LA, 2001; / Unified J\geJJd;; 

FEDERAL RAILROAD ADMINISTRATION (Continued) 

SECTION 610 AND OTHER REVIEWS -~~,-~--~ 

Year Regulations To Be Reviewed Analysis Year Review Year 

2 

3 

4 

5 

6 

7 

8 

9 

10 

49 CFR parts 207,209,211,215,238. and 256 

49 CFR parts 210.212.214,217. and 268 

49 CFR part 219 

49 CFR parts 218, 221. 241, and 244 

49 CFR parts 216,228. and 229 

49 CFR parts 223 and 233 

49 CFR parts 224, 225, 231, and 234 . 

49 CFR parts 222, 227, 235, 236, 250, 260, and 266 . 

49 CFR parts 213, 220, 230, 232, 239, 240, and 265 . 

2009 2010 

2010 2011 

2011 2012 

2012 2013 

2013 2014 

2014 2015 

2015 2016 

2016 2017 

2017 2018 -~~---~-- ~~~--

Year 10 (fall 2007) List of rules analyzed and a summary of results 

49 CFR part 213 - Track Safety Standards 

• Section 610: There is a SEIOSNOSE. These are minimum safety requirements for railroad track that is part of the 

general railroad system of transportation. The FRA will conduct a formal review to identify whether opportunities 

may exist to reduce the burden on small railroads without compromising safety standards. 

• Plain Language: FRA's plain language review of this rule indicates no need for substantial revision. 

• General: Since the rule prescribes minimum safety requirements for railroad track that is part of the general railroad 

system of transportation, it will enhance the safety of rail transportation. protecting both those traveling and working 

on the system and those off the system who might be adversely affected by a rail incident. 

49 CFR part 220 - Railroad Communications 

• Section 610: There is a SEIOSNOSE. These are minimum requirements governing the use of wireless communications 

in connection with railroad operations, The FRA will conduct a formal review to identify whether opportunities 

may exist to reduce the burden on small railroads without compromising safety standards. 

• Plain Language: FRA's plain language review of this rule indicates no need for substantial revision. 

• General: Since the rule prescribes minimum requirements governing the use of wireless communications in connection 

with railroad operations. Uniform standard communications procedures and requirements throughout the railroad 

industry are necessary to ensure the protection and safety of railroad employees and general public, and to minimize 

the number of casualties. 

49 CFR part 230 - Steam Locomotive Inspection and Maintenance Standards 

• Section 610: There is no SEIOSNOSE. 

• Plain Language: FRA's plain language review of this rule indicates no need for substantial revision. 

• General: Since the rule prescribes minimum Federal safety standards of inspection and maintenance for all steam 

locomotive operated on railroads, these requirements are necessary to ensure the protection and safety of railroad 

employees and general public, and to minimize the number of casualties. 

49 CFR part 232 - Brake System Safety Standards for Freight and Other Non-Passenger Train and Equipment; Endof-Train Devices 

• Section 610: There is a SEIOSNOSE. These are minimum Federal safety standards for freight and other non-passenger 

train track systems and equipment as well as for freight and other non-passenger train brake systems. The FRA 

will conduct a formal review to identify whether opportunities may exist to reduce the burden on small railroads 

without compromising safety standards, 

• Plain Language: FRA's plain language review of this rule indicates no need for substantial revision. 

• General: Since the rule prescribes minimum Federal safety standards for freight and other non-passenger train track 

systems and equipment as well as for freight and other non-passenger train brake systems, it will enhance the safety 

of rail transportation, protecting both those traveling and working on the system and those off the system who might 

be adversely affected by a rail incident. 

49 CFR part 239 - Passenger Train Emergency Preparedness 

• Section 610: There is no SEIOSNOSE. 

• Plain LanguagB: FHA's plain language review of this rule indicates no nBed for substantial revision. 

• General: Since the rule prescribes minimum Federal safety standards for the preparation, adoption and implementation 

of emergency preparedness plans by railroads, these requirements are necessary to ensure the protection and safety 

of railroad passengers and employees as well as the general public, and to minil1lize the nUl1lber of casualties. 

49 CFR part 240 - Qualification and Certification of Locumotive Engineers 

• Sectiun 610: There is nu SEIOSNOSE. 

• Plain Language: FRA's plain language review of this rule indicates no need for substantial revision. 

• General: Since the rule prescribes minimum Federal safety standards and guidelines for the eligibility, training, 

lesting, certification and monitoring of all lucomotive engineers, it will ()JlSUl'fl and enhance the protection and safety 

of railroad employees and general public and minimize the number of casualties. 

4(J CFR part 265 - Nondiscrimination in Federally Assisted Railroad Programs 

• Section 610: There is 110 SmOSNOSE. ' 
Attachment 2 - Appendix D

Fedelal Regisler/V()L (,j, ".jo, 2"j/Momilv, NO\'(;Jl1lJAr 7A, :?UOH/LJlljfj(~d !\gU)Hja 

-~---

DOT 

o Phlin Languag8: FRA's plain languagE: review of this rule indicates no lJeed for substantial ffwisiOlL 

• General: Th8 purpose of the rule is to ensures that no person in the United States shall OIl the grounds of race, 

color, national origin, or sex be excluded from participation in, or denied the benefits of, or be subjected to 

discrimination under, allY project, program or activity funded in part through financial assistance under the Railroad 

Revitalization and Rt:gulatory Reform Act of 1976, or any provision of ILlW amended hy the Act. 

Year 1 (fall 2008) List of rule(s) that will be analyzed during next year 

49 CFT{ part 200 - lnformid Rules of Practice for Passenger Safety 

49 CPR part 201 - Formal Rul()s of Practice for Passenger Service 

FEDERAL TRANSIT ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 

Year Regulations To Be Reviewed Year Review Year 

49 CFR parts 604, 605, and 633 

2 49 CFR parts 661 and 665 

3 49 CFR part 633 

4 49 CFR parts 609 and 611 

5 49 CFR parts 613 and 614 

6 49 CFR part 622 

7 49 CFR part 630 

8 49 CFR part 639 

9 49 CFR parts 659 and 663 

10 49 CFR part 665 ~-~-- ~~, -----

Year 10 (fall 2007) List of rules analyzed and summary of results 

49 eFR part 624 - Clean Fuels Program 

2008 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

• Section 610: The Agency has determined that the rule will not have a significant effect on a substantial number 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

2018 

of small entities. This rule imposes no new costs because it merely modifies the application procedures for an existing 

grant program. 

• Plain Language: The rule was drafted using plain language techniques, 

• General: No changes are necessary since the benefits of the rule justify its costs and the regulation imposes the 

least burden. 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

49 CFR part 604 - Charter Services 

49 CFR part 605 - School Bus Operations 

49 CFR part 633 - Project Management Oversight 

MARITIME ADMINISTRATION 

SECTION 610 AND OTHER REVIEWS 

Year Regulations To Be Reviewed Analysis Year Review Year 

2 

3 

4 

5 

6 

7 

8 

9 

10 

46 CFR parts 201 through 205 

46 CFR parts 221 through 232 ........... .. 

46 CFR parts 249 through 296 ............................ .. 

46 CFR part 298 

46 CFR parts 307 through 309 . 

46 CFR part 310 .............. .. 

46 CFR parts 315 through 340 . 

46 CFR parts 345 through 381 

46 CFR parts 382 through 389 .. 

46 CFR parts 390 through 393 . 

Year 10 (fall 2007) List of rules analyzed and a summary of the results 

46 CFR part 390 - Capital Construction Fund 

2008 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

• Section 610: No SEIOSNOSE. Some small entities may be affected, but the economic impact on small entities will 

not be significant. 

• Crmeral: No overall revisioll of the rule is needed at this time; however, technical amendments were made to the 

rule so that it correctly referenced sections in the United States Code, Wlww confusing or wordy language has been 

identified, revisions will be made. 

46 CFR part 391 - Federal Income Tax Aspects of the Capital Construction Fund 

• Section 610: No SEIOSNOSK Some small entities may be aff8cted, but the economic impact on small entities will 

not be significallt. 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

2018 
Attachment 2 - Appendix D

71412 

DOT 

------.------------

• Cenr;rJI: No chaJlgr~s are ll(;cded, V\!herc confusing or wordy langllage has been identified, mvisiolls will be mild.:, 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

46 CFR part 201 - Rules of Practice and Procedure 

46 CFR part 202 Procedures Relating to Rrwiew by Secretary of Transportation of Actions by Maritime Subsidy Board 

46 eFR part 203 - Procedures Relating to Conduct of Certilin Hearings Under the Merchant Marille Act, 1936 

46 CFR part 204 - Claims Against the Maritime Administration Ullder the Federal Tort Claim Act 

46 eFR part 205 Alldit Apprals; Policy and Procedure 

PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION (PHMSA) 

SECTION 610 AND OTHER REVIEWS 

Year Regulations To Be Reviewed Year Review Year ,,-~ 

------ -

Part 178 2008 

2 Parts 178, 179, 180 2009 

3 Parts 172 and 175 2010 

4 Sections 171,15 and 171,16 2011 

5 Parts 106, 107, 171, 190, 195 2012 

6 Parts 174, 177, 191, 192 2013 

7 Parts 176, 199 2014 

8 Parts 172, 173, 174, 175, 176, 177, 178 2015 

9 Parts 172, 173, 174, 176, 177, 193 2016 

10 Parts 173, 194 2017 

Year 8 (fall 2005) List of rules analyzed and a summary of the results 

49 CFR part 110 - Hazardous Materials Public Sector Training and Planning Grants 

• Section 610: No SEIOSNOSE. The vast majority of grant applicants are not considered small entities as SBA defines 

that term, In the past 10 years, only eight entities meeting the small business definition have applied for and received 

HMEP grants. Further, the grant application process is specifically designed to minimize the burdrn on all grantees, 

including those that meet the definition of small entity. 

• Plain Language: Where confusing or wordy language has been identified, we will make revisions. 

• General: No changes are necessary since the benefits of the rule justify its costs and the regulation imposes the 

least burden. 

49 CFR part 195 - Transportation of Hazardous Liquids by Pipeline 

• Section 610: NO SEIOSNOSE. The vast majority of hazardous liquid operators are not small entities as defined by 

the SEA, 

• Plain Language: We will make revisions where wordy or confusing language is identified, 

• General: No cbanges are necessary since the benefits of the rule justify its costs and the regulation imposes the 

least burden, 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

49 CFR part 178 - Specifications for packagings 

RESEARCH AND INNOVATIVE TECHNOLOGY ADMINISTRATION (RITA) 

SECTION 610 AND OTHER REVIEWS 

2009 

2010 

2011 

2012 

2013 

2014 

2015 

2016 

2017 

2018 

Year Regulations To Be Reviewed Analysis Year Review Year 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

14 CFR part 241, form 41 ",,",,""'" 

14 CFR part 241, schedule T-100, and part 217 

14 CFR part 298, 49 CFR 1420 , ""''',,'', 

14 CFR part 241, section 19-7 """""""" """"""""""" , 

14 CFR part 291 "'",''''' "","" 

14 CFR part 234.,,,,,,,,,,, 

14 CFR part 249""" 

14 CFR part 248 ................, ''''', 

14 CFR part 250 

14 CFR part 374a, ICAO 

Year 6 (fall 2003) List of rule(s) analyzed and a summary of results 

14 CPR part 234 - Airline Service Quality Performance Reports 

• Section 610: No SEIOSNOSE. 

2008 2009 

2009 2010 

2010 2011 

2011 2012 

2012 2013 

2013 2014 

2014 2015 

2015 2016 

2016 2017 

2017 2018 ._ .. - ... - - ------

• Plain Language: This rule is twing reviewed as part of an overall aviation data requirements review and modernization 

program, which will also take into account the plain language initiative, 

• Grmeral: This rule is being reviewnd as part of an Dvmall aviJtion data requin~m(lllts revinw and modernization program, 
Attachment 2 - Appendix D

Federal Registeri\1uL 7:>. No. 227iMonrlay. N()VHlnber 2-1. :WOB/Unifiod /\g(~l1'.ia 

DOT 

Year 7 (fall 2004) List of rule(s) analyzed and a summary of results 

14 CFR part 249 - Preservation of Air Carrier Records 

• Section 610: No SEIOSNOSE. 

7HU 

• Plain Language: This mle is being reviewed as part of an overall aviation data requirements review and modernization 

program, which will also take into account the plain language initiative. 

• General: This rule is being reviewud as part of an overall aviation data requirements review and modernization program. 

Year 8 (fall 2005) List of rule(s) analyzed and a summary of results 

14 CFR part 248 - Submission of Audit Reports 

• Section 610: No SElOSNOSE. 

• Plain Language: This rule is being reviewed as part of an overall aviation data requirements review and modernization 

program, which will also take into account the plain language initiative. 

• General: This rule is being reviewed as part of an overall aviation data requirements review and modernization program. 

Year 1 (fall 2008) List of rules that will be analyzed during the next year 

14 CFR part 241 - Uniform System of Accounts and Reports for Large Certificated Air Carriers, Form 41 

Year 

SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION 

SECTION 610 AND OTHER REVIEWS 

Regulations to be Reviewed 

33 CFR parts 401 through 403 ........................................... . 

Year 1 (fall 2008) List of Rules that will be analyzed during the next year 

33 CFR part 401 - Seaway Regulations and Rules 

33 CFR part 402 - Tariff of Tolls 

33 CFR part 403 - Rules of Procedure of the Joint Tolls Review Board 

Analysis Year 

2008 

Review Year 

2009 
Attachment 3

NHTSA Reports

This attachment provides citations and links to reports NHTSA issued in the last two years 

evaluating the effectiveness of its rules.
Attachment 3

NHTSA Reports on Evaluations of the Effectiveness of Its Rules Over the Last Two 

Calendar Years

2010 

I. The Effectiveness of Underride Guards for Heavy Trailers (NHTSA Report 

No. DOT HS 811 375) by Kirk Allen, http://wwwnrd.nhtsa.dot.gov/Pubs/811375.pdf

II. Booster Seat Effectiveness Estimates Based on CDS and State Data DOT HS 

811 338, by Bob Sivinski, http://www-nrd.nhtsa.dot.gov/Pubs/811338.pdf

III. The Effectiveness of ABS in Heavy Truck Tractors and Trailers (NHTSA 

Report No. DOT HS 811 339, Author: Kirk Allen) http://wwwnrd.nhtsa.dot.gov/Pubs/811339.pdf

IV. Contractor Report: Evaluation of State Motorcycle Safety Programs (NHTSA 

Report No. DOT HS 811 269, Authors: Justin Baer, Kaylin Ayotte, and 

Stéphane Baldi, American Institutes for Research) http://wwwnrd.nhtsa.dot.gov/Pubs/811269.PDF

V. Relationships Between Fatality Risk, Mass, and Footprint in Model Year 

1991-1999 and Other Passenger Cars and LTVs (Pages 464-542 of Final 

Regulatory Impact Analysis: Corporate Average Fuel Economy for MY 2012-

MY 2016 Passenger Cars and Light Trucks, Author: Charles J. Kahane) 

http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/Rulemaking/Rules/Associa

ted%20Files/CAFE_2012-2016_FRIA_04012010.pdf 

2009 

VI. Fatalities in Frontal Crashes Despite Seat Belts and Air Bags – Review of All 

CDS Cases – Model and Calendar Years 2000-2007 – 122 Fatalities (NHTSA 

Report No. DOT HS 811 202, Authors: James David Bean, Charles J. Kahane, 

Mark Mynatt, Rodney W. Rudd, Carla J. Rush, and Chris Wiacek) 

http://www-nrd.nhtsa.dot.gov/pubs/811102.pdf [sic]

VII. The Long-Term Effect of ABS in Passenger Cars and LTVs (NHTSA Report 

No. DOT HS 811 182, Author: Charles J. Kahane) http://wwwnrd.nhtsa.dot.gov/Pubs/811182.PDF

VIII. The Effectiveness of Amber Rear Turn Signals for Reducing Rear Impacts 

(NHTSA Report No. DOT HS 811 115, Author: Kirk Allen) http://wwwnrd.nhtsa.dot.gov/Pubs/811115.PDF

Attachment 3 - NHTSA Reports
IX. An In-Service Analysis of Maintenance and Repair Expenses for the AntiLock Brake System and Underride Guard for Tractors and Trailers (NHTSA 

Report No. DOT HS 811 109, March 2009, Author: Kirk Allen) http://wwwnrd.nhtsa.dot.gov/Pubs/811109.PDF

X. Contractor Report: Review of State Motorcycle Safety Program Technical 

Assessments (NHTSA Report No. DOT HS 811 082, Authors: Justin Baer and 

Melanie Skemer, American Institutes for Research) http://wwwnrd.nhtsa.dot.gov/Pubs/811082.PDF

Attachment 3 - NHTSA Reports