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###### Department of Transportation

###### Federal Highway Administration

          - [FHWA Docket No. FHWA-2000-7392]

# AGENCY:

Federal Highway Administration (FHWA), DOT.

# ACTION:

Notice; request for comments; solicitation of intent to apply for fiscal year (FY) 2002 grants.

# SUMMARY:

This document provides implementation guidance on sections 1118 and 1119 of the Transportation Equity Act for the 21st Century (TEA-21). These sections established the National Corridor Planning and Development Program (NCPD program) and the Coordinated Border Infrastructure Program (CBI program). The NCPD and the CBI programs are discretionary grant programs funded by a single funding source. These programs provide funding for planning, project development, construction and operation of projects that serve border regions near Mexico and Canada and high priority corridors throughout the United States. States and metropolitan planning organizations (MPOs) are, under the NCPD program, eligible for discretionary grants for: Corridor feasibility; corridor planning; multistate coordination; environmental review; and construction. Border States and MPOs are, under the CBI program, eligible for discretionary grants for: Transportation and safety infrastructure improvements, operation and regulatory improvements, and coordination and safety inspection improvements in a border region.

# DATES:

Intentions to make grant applications should be received by FHWA Division Offices no later than July 6, 2001. Specific information required for intentions to make grant applications is provided in Section IV of this notice. Comments on program implementation should be sent as soon as appropriate. The FHWA will consider comments received in developing the FY 2002 and FY 2003 solicitations of grant applications as well as the implementation of the NCPD/CBI program. More information on the type of comments sought by the FHWA is provided in Section III of this notice.

# ADDRESSES:

Submit written, signed comments on program implementation for fiscal year FY 2003 to FHWA Docket No. FHWA-2000-7392, the Docket Clerk, U.S. Dockets, Room PL-401, 400 Seventh Street, SW, Washington, DC 20590-0001. All comments received will be available for examination at the above address between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments should include a self-addressed, stamped envelope or postcard.

Intent to make applications for FY 2002 grants under the NCPD and CBI programs should be submitted to the FHWA Division Office in the State where the applicant is located.

# FOR FURTHER INFORMATION CONTACT:

For program issues: Mr. Martin Weiss, Office of Intermodal and Statewide Programs, HEPS-10, (202) 366-5010; or for legal issues: Mr. Robert Black, Office of the Chief Counsel, HCC-30, (202) 366-1359; Federal Highway Administration, 400 Seventh Street, SW., Washington D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through Friday, except Federal holidays.

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    Internet users can access all comments received by the U.S. DOT Dockets, Room PL-401, by using the universal resource locator (URL):                     *http://dms.dot.gov.*                     It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.                

                    An electronic copy of this document may be downloaded using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at (202) 512-1661. Internet users may reach the Office of the Federal Register's home page at:                     *http://www.nara.gov/​fedreg*                     and the Government Printing Office's web page at:                     *http://www.access.gpo.gov/​nara.*                     In addition, a number of documents and links concerning the NCPD and the CBI programs are available through the home page of the Corridor/Border Programs:                     *http://www.fhwa.dot.gov/​hep10/​corbor/​corbor.html.*      ( print page 23074)    

## Background

Sections 1118 and 1119 of the TEA-21, Public Law 105-178, 112 Stat. 107, at 161, established the NCPD and CBI programs, respectively. These programs respond to substantial interest dating from 1991. In that year, the Intermodal Surface Transportation Efficiency Act (ISTEA), Public Law 102-240, 105 Stat. 1914, designated a number of high priority corridors. Subsequent legislation modified the corridor descriptions and designated additional corridors. Citizen and civic groups promoted many of these corridors as, for example, a means to accommodate international trade. Similarly, since 1991, a number of studies identified infrastructure and operational deficiencies near the U.S. borders with Mexico and Canada. Also various groups, some international and/or intergovernmental, studied opportunities to improve infrastructure and operations.

The NCPD and CBI programs are funded by a single funding source. The combined authorized funding for these two programs is $140 million in each year from FY 1999 to FY 2003 (a total of $700 million). Program funds are limited by the requirements of section 1102 (Obligation Ceiling) of the TEA-21. Further, projects selected for funding have been and may again be affected by legislative language, colloquially called ‘earmarks’, placed in Federal law or related reports. This latter situation was the case in both FY 2000 and FY 2001. In these situations, the solicitation was made in August 1999 and June 2000 respectively and, in both cases, Congressional direction a few months later established project specific language. As a matter of long standing general policy, the FHWA opposes project specific legislative language. However, subsequent to the inclusion of such language in law or related reports, the FHWA makes program administration decisions respecting the authority Congress has to develop such language.

Under the NCPD program, funds are available to States and MPOs for coordinated planning, design, and construction of corridors of national significance, economic growth, and international or interregional trade. Under the CBI program, funds are available to border States and MPOs for projects to improve the safe movement of people and goods at, or across, the border between the United States and Canada, and the border between the United States and Mexico. Based on the factors noted above (i.e., obligation limitations and legislative language), the FHWA anticipates that between $20 million and $130 million will be available for allocation for projects.

The Federal share for these funds is set by 23 U.S.C. 120 (generally 80 percent plus the sliding scale adjustment in States with substantial public lands). The period of availability for obligation is the fiscal year for which the funds are authorized and the three years following. States which receive an allocation of funds under these programs will, at the same time, receive an increase in obligation authority equal to the allocation. Under section 1102 of TEA-21, obligation authority for discretionary programs that is provided during a fiscal year is extinguished at the end of the fiscal year. Funds allocated to projects which, under the NCPD/CBI programs, receive an obligation authority for FY 2002, must therefore be obligated during FY 2002 or have the FY 2002 obligation authority withdrawn for redistribution.

This notice includes four sections: 

Section I—Program Background and Implementation of the NCPD/CBI discretionary program in FY 2001

Section II—Eligibility and Selection Criteria for FY 2002 grants

Section III—Request for comments on program implementation in FY 2002, FY 2003

Section IV—Solicitation of applicants for FY 2002 grants

### Section I—Program Background, Implementation of the NCPD/CBI Discretionary Program in FY 2001 and changes for FY 2002

The FHWA implements the NCPD/CBI programs with specific goals. In developing the FY 2002 solicitation, the FHWA will consider the following: Comments received at outreach sessions; information received during program discussions within the DOT; and information received during discussions between officials. In FY 1999, the FHWA established program implementation goals. They were:

1. Respect both the letter and the intent of existing statutes.

2. Minimize administrative additions to statutory requirements.

3. Minimize grant application paperwork.

4. Maximize administrative control of grants by FHWA field personnel rather than FHWA Headquarters personnel.

5. Encourage substantive coordination of grant applications and grant administration by State and local officials.

6. Encourage appropriate private/public, State/local, intermodal, interregional, multistate and multinational coordination.

7. Encourage grant applications that have realistic objectives and time horizons.

In FY 2000 and FY 2001, the FHWA retained these program implementation goals. However, overarching these program goals were FHWA and DOT strategic goals established in those years which resulted in a program emphasis on four specific areas (motor carrier safety enforcement facilities, integrated trade transportation processing systems to improve border crossings, multistate freight planning efforts, and applications of operational strategies, including ITS applications). In FY 2002, as noted below in Section II, Evaluation Considerations for both the NCPD and the CBI Program, there may be a goal(s) added regarding the safety of commercial vehicles in the region near the U.S. border with Mexico. Emphasis areas are not available for this solicitation of intent to submit full applications for FY 2002. Emphasis areas may be established for the solicitation of full applications.

## Summary of Selection Process—FY 2001

                    The FHWA received approximately 150 applications for NCPD/CBI funding, all of which were at least partially eligible for consideration (e.g., some applications included work components that were not eligible and also included work components that were eligible). The requests for funding totaled approximately $2 billion. Both the number of applications and requested funding were about the same as in FY 1999 and FY 2000. Approximately 66 percent of the total funds awarded and 61 percent of the projects funded for FY 2001 were for projects cited in Congressional language. The legislative language containing these citations for FY 2001 is available at URL:                     *http://www.fhwa.dot.gov/​hep10/​corbor/​fy01earmark.html.*

                    As in FY 1999 and FY 2000, the FHWA established an evaluation panel comprised of officials from various agencies within the DOT (e.g., the Federal Railroad Administration, the Maritime Administration, the Federal Motor Carrier Safety Administration, the Office of the Secretary of Transportation, as well as the FHWA). This panel reviewed the FY 2001 applications and tabulated summaries of applications. The evaluation panel identified individual applications that were “well qualified” and those which were “qualified” based on summary information prepared by the FHWA program office (e.g., positive aspects and other aspects of each application). We expect to follow a similar process with                           ( print page 23075)                        the FY 2002 full grant applications for funds available after legislative language is considered.                

                    On November 3, 2000, then U.S. Transportation Secretary Rodney E. Slater announced that $123 million in grants would be provided to 32 states for 50 projects and to the General Services Administration for four other projects as part of the NCPD/CBI programs for FY 2001. The FY 2001 NCPD/CBI program grant recipients, by state, project and total allocation, are listed at the URL:                     *http://www.fhwa.dot.gov/​hep10/​corbor/​fy01awards.html.*                     These include both projects cited in legislative language and projects not cited in legislative language. In addition, section 1311 of the TEA-21, as amended, requires a report for the fiscal quarter covering the FY 2001 selections, containing the reasons for selection of projects. At the time of this notice, the report is not available. When completed, it will also be available on FHWA's website:                     *http://www.fhwa.dot.gov/​discretionary/​quarterly.html.*

### Summary of Comments to Docket No. FHWA-2000-7392

On June 16, 2000, at 65 FR 37819, the FHWA published a notice, requesting comments on how the NCPD/CBI programs implementation could be improved in FY 2002, as well as other aspects of the program. Commenters were asked specifically for improvements that could be made at the discretion of the FHWA that would more effectively meet the seven implementation goals established for the program.

One comment was posted. This was a letter from Senator Jon Kyl of Arizona expressing his support for an application for funding for the Hoover Dam bypass. The FHWA considered Senator Kyl's support in the FY 2001 award process.

### Other Program Evaluation Information Received

The FHWA has received information on program implementation through a number of instruments. One is by reading and analyzing the applications themselves. Another is through post-award feedback from applicants who have, through the FHWA field division offices, requested a debriefing from the FHWA program office regarding how their application was evaluated. Still another is through NCPD/CBI related discussions between applicants and other grant seeking interests, FHWA division offices and the FHWA program office at a wide variety of meetings that take place during the year on project, program, or policy matters. A substantial amount of the information was received from coordinators, evaluators, preparers, reviewers and/or supporters of specific grant applications or groups of grant applications. Many such persons felt time and effort had been wasted, or partially wasted, because projects selected which were cited in legislative language effectively reduced the consideration provided to the applications in which they were directly involved.

### Changes in the FY 2002 Process from Previous Years

Based on consideration of the above, the FHWA is proposing to change the solicitation process for FY 2002. A full solicitation for FY 2002 will not occur until after Congress has passed and the President has signed an Appropriations Act for the Department of Transportation. Instead, at this time, the FHWA is soliciting only statements of intent to submit an application. Several factors contributed to this decision. First, as noted previously, a substantial number of projects were cited in legislative language in FY 2000 and FY 2001, restricting the Department's discretion in making selections and there is a substantial possibility that this will occur in FY 2002. Second, without a realistic idea of the funds available to support applications State and MPOs unnecessarily expend resources developing and coordinating detailed applications. Third, by soliciting intent at this time and deferring submission of the complete applications, the immediate paperwork burden on States and MPOs will likely be reduced while allowing additional time for coordination of projects for which an application is ultimately made. Fourth, by soliciting intent at this time, the FHWA will, if Congress requests information on interest in the program, be able to provide such information to Congress contemporaneously with development of Appropriations legislation and related reports. Finally, as noted below in Section IV, States and MPOs that do not send in a statement of intent may subsequently respond to any solicitation for full applications, assuming there is a reasonable basis for doing so, i.e., an explanation which sets forth the reasons why a statement of intent was not submitted.

### Section II—Eligibility and Selection Criteria for FY 2002 Grants

In general, the eligibility and selection criteria for FY 2002 grants are expected to be the same as those used for FY 2001 grants with only minor modifications (e.g., possibly different emphasis areas).

#### Eligibility—NCPD Program

Projects eligible for funding include the following:

1. Feasibility studies.

2. Comprehensive corridor planning and design activities.

3. Location and routing studies.

4. Multistate and intrastate coordination for corridors.

5. Environmental review or construction after review by the Secretary of a development and management plan for the corridor or useable section of the corridor (hence called “corridor plan”).

Work in the pre-feasibility stage of a project, e.g., development of metropolitan and State plans and programs, is not considered eligible for support with Federal aid under section 1118 funds. Project development planning and multistate planning coordination are eligible for such support.

The FHWA construes the phrase “environmental review,” as used above, as being the portion of the environmental documentation requiring formal interagency review. Examples of such documentation are the environmental assessment/finding of no significant impact (EA/FONSI) and the environmental impact statement (EIS). Thus, even without review of the corridor plan, work needed to produce the pre-draft EIS and to revise the draft would be eligible for support with Federal aid under section 1118. However, work subsequent to the FHWA approval of the draft EIS (or equivalent) would not be eligible for such support until review of the corridor plan. Subsequent to review of the corridor plan, work on a final EIS and any other necessary environmental work would be eligible for funding under this section.

Eligibility for funds from the NCPD program is limited to high priority corridors identified in section 1105(c) of the ISTEA, as amended, and any other significant regional or multistate highway corridors selected by the Secretary after consideration of the criteria listed for selecting projects for NCPD funding. Fund allocation to a corridor does not constitute designation of the corridor as a high priority corridor. The FHWA has no statutory authority to make such a designation.

## Eligibility—CBI Program

Projects eligible for funding include the following:

                    1. Improvements to existing transportation and supporting infrastructure that facilitate cross border vehicle and cargo movements.                          ( print page 23076)    

2. Construction of highways and related safety and safety enforcement facilities that will facilitate vehicle and cargo movements related to international trade.

3. Operational improvements, including improvements relating to electronic data interchange and use of telecommunications, to expedite cross border vehicle and cargo movement.

4. Modifications to regulatory procedures to expedite cross border vehicle and cargo movements.

5. International coordination of planning, programming, and border operation with Canada and Mexico relating to expediting cross border vehicle and cargo movements.

6. Activities of Federal inspection agencies.

The TEA-21 requires projects to be in a border region. The FHWA considers projects within 100 km (62 miles) of the U.S./Canada or U.S./Mexico border to be in a border region.

### Selection Criteria for the NCPD Program Funding

The TEA-21 provides criteria to be used in identifying corridors, in addition to those statutorily designated for eligibility. The following criteria will be used for selecting projects for funding:

1. The extent to which the annual volume of commercial vehicle traffic at the border stations or ports of entry of each State has increased since the date of enactment of the North American Free Trade Agreement (NAFTA), and is projected to increase in the future.

2. The extent to which commercial vehicle traffic in each State has increased since the date of enactment of the NAFTA, and is projected to increase in the future.

3. The extent to which international truck-borne commodities move through each State.

4. The reduction in commercial and other travel time through a major international gateway or affected port of entry expected as a result of the proposed project, including the level of traffic delays at major highway/rail grade crossings in trade corridors.

5. The extent of leveraging of Federal funds, including use of innovative financing; combination with funding provided under other sections of the TEA-21 and title 23, U.S.C.; and combination with other sources of Federal, State, local, or private funding including State, local and private matching funds.

6. The value of the cargo carried by commercial vehicle traffic, to the extent that the value of the cargo and congestion impose economic costs on the Nation's economy.

7. Encourage or facilitate major multistate or regional mobility and economic growth and development in areas underserved by existing highway infrastructure.

Specific aspects of the NCPD program require the FHWA to interpret these criteria. Based on the goals noted above in Section I, the FHWA intends to use a flexible interpretation. For example, while the date of the enactment of NAFTA was December 8, 1993, traffic data which provides an average for the calendar year 1993 could be used for the pre-NAFTA information. For another example, since businesses use both imported and domestically produced materials in a constantly changing component mix to produce higher valued products and, because interregional trade is noted as part of the purpose of the section, either interstate traffic or interregional traffic could be used as a surrogate for “international truck-borne commodities.” Similarly, where determining the value of cargo carried by commercial vehicle traffic would be impossible without using proprietary information, a reasonable surrogate could be based on the vehicle traffic multiplied by an imputed value for various classes of cargo.

### Selection Criteria for the CBI Program Funding

The selection criteria in the TEA-21 are as follows:

1. Expected reduction in commercial and other motor vehicle travel time through an international border crossing as a result of the project.

2. Improvements in vehicle and highway safety and cargo security related to motor vehicles crossing a border with Canada or Mexico.

3. Strategies to increase the use of existing, underutilized border crossing facilities and approaches.

4. Leveraging of Federal funds, including use of innovative financing, combination of such funds with funding provided under other sections of the TEA-21 and combination with other sources of Federal, State, local or private funding.

5. Degree of multinational involvement in the project and demonstrated coordination with other Federal agencies responsible for the inspection of vehicles, cargo, and persons crossing international borders and their counterpart agencies in Canada and Mexico.

6. Improvements in vehicle and highway safety and cargo security in and through the gateway or affected port of entry concerned.

7. The extent to which the innovative and problem solving techniques of the proposed project would be applicable to other border stations or ports of entry.

8. Demonstrated local commitment to implement and sustain continuing comprehensive border or affected port of entry planning processes and improvements programs.

As in the NCPD program criteria, the FHWA intends to use a flexible interpretation of the CBI program selection criteria. For example, because local agencies and organizations (e.g., business association, civic, county, municipal, utility) sometimes have very small capital improvement budgets, that local commitment for continuing planning and improvement will be considered in the context of local program cooperation with State projects in the border regions, as well as in the context of local financial support for such projects.

### Selection Criteria Common to Both Programs

In addition to the statutory criteria for each program, there are some considerations that apply to both programs since both are funded by a single funding source. One such consideration is that during the evaluation process, applications for both programs are evaluated by a single evaluation panel comprised of officials from various offices within the DOT, not just the FHWA (this process is described above in more detail in the Summary of Selection Process). The use of non-FHWA personnel in evaluating applications should be understood by applicants as a statement by the FHWA that non-highway issues are an important project selection consideration. Another consideration is that, as the concept of equity and congressional priority were important in the development of the TEA-21, national geographic distribution among all discretionary programs and congressional direction or guidance will be considered in the selection of projects for discretionary funds.

### Evaluation Considerations for both the NCPD and the CBI Program

To adequately evaluate the extent to which selection criteria noted above are met by individual projects, the FHWA expects to consider the following in each grant application:

1. Likelihood of expeditious completion of a useable project or product.

                    2. Amount of the program grant request in comparison to likely accomplishments (e.g., grant requests that exceed about 10 percent of the                           ( print page 23077)                        available NCPD and CBI program funding in a given year would be expected to be subject to extra scrutiny to determine whether the likely consequences would be commensurate with that level of funding).                

3. Clarity and conciseness of the grant application in submission of the required information, especially regarding the work to be accomplished and the source and amount of the non federal share of funds.

4. State priorities and endorsement of, or opposition to, projects by other States, MPOs, and other public and private agencies or organizations, as well as the status of the project on the State transportation improvement program (STIP) and the metropolitan transportation improvement program (TIP).

5. The extent to which the project may be eligible under both the NCPD and the CBI program.

6. Other quantitative information that relates to the strategic goals of the FHWA, the other DOT modal agencies and the DOT as a whole at the time of the full solicitation. At the time of this notice, the FHWA anticipates that a goal(s) related to the safety of commercial vehicles in the region near the U.S. border with Mexico will be important at the time full applications are evaluated and selected.

### Section III—Request for Comments on Program Implementation in FY 2002, FY 2003.

The FHWA is specifically requesting comments NCPD/CBI program implementation. In addition, agencies that wish to reconsider their previous comment(s) or make additional comments on other aspects of program implementation are invited to do so. Commenters should reference the docket number noted in the beginning of this notice.

### Section IV—Solicitation of Intent to submit Applications for FY 2002 Grants

As explained earlier, the FHWA is requesting only statements of intent to submit grant applications at this time. Send such statements of intent to submit applications for grants to the division office in the State where the applicant is located. If a project is located in more than one State, send the application to the division office in the lead State. The FHWA will not penalize a State or MPO that, subsequent to the Appropriations Act and subsequent solicitation for full applications, chooses not to apply for funding or submits an application that is close to but not the same as the submittal of intent or where priorities are reestablished between the submittal of intent and the submittal of the application. In fact, the FHWA expects project definitions and priorities to evolve in complex and/or multistate projects. Future applications will not be precluded if the State or MPO did not submit their intent in response to this request. However, those States or MPOs must demonstrate a reasonable basis for failing to submit their intent as requested. The FHWA anticipates that the actual format for full applications will be very similar to that of FY 2001 with a decrease in the amount of narrative requested on some points and some additional clarification of financial information. However, the suggested format for the intent to submit is as follows:

### Format for Intention to Submit an Application for NCPD or CBI Discretionary Funds

1. State (if a multistate or multi MPO project, list the lead State/MPO and participating States/MPO);

2. Work to be funded and location of work to be funded.

3. Amount of federal funds to be requested.

4. State priority, as of time the intent is established.

# Note 1:

Please provide 2 copies of intention to submit a grant application.

# Note 2:

Assuming that funds are available for discretionary allocation, the FHWA would solicit full applications for such funds. Awards for the funds available for discretionary allocation should be expected to be announced by late spring calendar 2002.

(Authority: 23 U.S.C. 315; secs. 1118 and 1119, Pub. L. 105-178, 112 Stat. 107, at 161 (1998); and 49 CFR 1.48)

Issued on: April 27, 2001.

Vincent F. Schimmoller,

Deputy Executive Director, Federal Highway Administration.

[FR Doc. 01-11402 Filed 5-4-01; 8:45 am]

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