Section 101 of the National Highway System Designation Act of 1995 designated the NHS within the United States, including the District of Columbia and the Commonwealth of Puerto Rico, and authorized the Secretary of Transportation to make future modifications to the system. The purpose of this memorandum is to transmit interim guidance for use by the States in considering modifications to the system. Final guidance will be issued as a revision to 23 CFR 470.
The proposed NHS was developed over a period of several years in cooperation with the State transportation agencies and the metropolitan planning organizations. During this period, as statewide and metropolitan plans were being developed, the States were able to refine the proposed system before designation by Congress. Because of these continuing refinements, we would not expect States to propose many modifications until they have worked with the system for some time. There may be a few instances, however, where further refinements are needed or where earlier conditions or assumptions have changed. Although this interim guidance will allow States to propose modifications now, we would prefer that requests be deferred until final guidance is issued in 23 CFR 470.
You are reminded that, with some exceptions (STRAHNET, major STRAHNET connectors, and connections to major intermodal terminals), only principal arterials are eligible for inclusion on the NHS. After completion of the functional reclassification in 1993, more than 203,000 miles of rural and urban roads are now functionally classified as principal arterials--an increase of more than 16,000 miles. Although the State transportation agencies are expected to update the functional classification of routes on a continuing basis, we believe the principal arterial system in most States is at the upper bounds of a reasonable stratification of roads by function. Accordingly, any requests to change the functional classification of a route from a minor arterial to a principal arterial should be reviewed very carefully in relation to other principal arterial routes before approval. The Intermodal and Statwide Programs Division (HEP-10) staff is available for consultation in considering changes in functional classification.
The authority to approve/disapprove modifications to the NHS will be retained at FHWA Headquarters for now. We will consider delegation to the regions when 23 CFR 470 is revised.
Questions concerning the attached interim guidance should be directed to Thomas Weeks (TWEEKS) at (202) 366-5002.
-Thomas J. Ptak
Criteria
Other Factors
Interstate System
The Office of Environment and Planning will automatically make any necessary modifications to the NHS when routes are added to the Interstate System under 23 U.S.C. 139(a) or Section 332(a)(2) of the NHS Designation Act of 1995.
Connections to Major Intermodal Terminals
Section 101 of the NHS Designation Act of 1995 requires the Secretary to submit proposed
connections to major intermodal terminals to the Congress for approval not later than 180 days after the date of enactment. That work is ongoing, and FHWA expects to submit the proposed connections to the Congress on or about May 15. After approval by the Congress, the Secretary will have the authority to approve modifications to the NHS involving connections to intermodal terminals in the same manner as other modifications.
Proposed modifications to the NHS involving connections to intermodal terminals must meet the criteria and guidelines established in the April 14, 1995, FHWA memorandum--Subject: Guidelines for Identifying National Highway System Connections to Major Intermodal Terminals. Copies of this memorandum may be obtained from the Intermodal and Statewide Programs Division (HEP-10). Modifications accepted by FHWA will be immediately eligible for improvements with NHS funds.
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The National Highway System Designation Act of 1995 (NHS) contained two provisions which affect the implementation requirements of Section 1038 of ISTEA, "Use of Recycled Paving Material."
Section 205. Title: Relief from Mandates
Subsection(b) Asphalt Containing Recycled Rubber
Subsection 205(b) of the NHS amends ISTEA Subsection 1038(d) by eliminating the mandate for using recycled crumb rubber in a specified percentage of asphalt pavements constructed with Federal-aid funds. All associated penalties for non-compliance were also eliminated. All other provisions of Section 1038 related to research and technology transfer now underway remain in effect.
Section 327. Title: Use of Recycled Paving Materials
Section 1038 ISTEA is further amended by adding a new Subsection (d) to ISTEA 1038, entitled "Asphalt Pavement Containing Recycled Rubber."
Paragraph (1) of this subsection requires research and development of tests and specifications for use of crumb rubber modified (CRM) asphalt in conformance with the new Strategic Highway Research Program (SHRP) performance based specifications. The section requires consultation with the crumb rubber modifier industry and other interested parties when developing these procedures.
The FHWA awarded a research contract in September 1994 to Oregon State University-Corvallis, Oregon (OSU). This is approximately a $2.1 million pooled-fund effort with 33 States participating. This research involves design, construction, and evaluation of asphalt pavement containing recycled rubber using different mixtures, plant configurations, and environmental conditions for both recyclability and performance. This research project is also looking at what is necessary to incorporate CRM binders into the SHRP performance grade system and will provide the criteria for establishing performance grade classifications and mixtures. This work is now well underway.
Western Research Institute-Laramie, Wyoming (WRI) is also conducting research for the FHWA under Section 6016 of ISTEA on the fundamental properties of asphalt. As a part of this research, WRI is looking at the interaction between asphalt and CRM. Results from this work are being incorporated into the OSU project.
The FHWA/EPA are funding the National Institute for Occupational Safety and Health (NIOSH) to conduct health related environmental field testing of conventional and crumb rubber modified hot-mix asphalt (HMA) paving projects. We do not anticipate the need for additional research in this area. Industry and agency representation are involved in all of the research contracts now underway.
Paragraph (2) of this subsection, entitled " Crumb Rubber Modifier Program Development" defines provisions for making grants to States to develop programs to use crumb rubber from scrap tires to modify asphalt pavements. This subsection also redefines the term "asphalt containing recycled rubber" such that the physical properties of the asphalt must be modified by the CRM. No specific funding was provided for this section. While States will not be required to use crumb rubber in asphalt paving, when requested, the FHWA should allow the use of any available Federal-aid funds for research, design, or construction with crumb rubber materials. States should be encouraged to gain experience with the use of waste tire rubber in engineering applications, including asphalt paving, where it is both cost effective and it can be properly engineered.
In response to the industry’s request of May 9, 1995, FHWA agreed to co-sponsor a series of regional workshops on CRM technology. We anticipate these workshops will be conducted in conjunction with a scheduled regional user/producer meeting or other pavement or materials related meeting. A steering committee is being assembled at this time to coordinate these workshops. This committee will have AASHTO, FHWA, the National Asphalt Pavement Association (NAPA), and the Rubber Pavements Association (RPA) representation. We will provide you further information as this technology transfer activity is finalized.
With the 1996 construction season approaching, there continues to be the need to recruit several CRM paving projects for the on-going research activities mentioned above. Attached is a copy of a call for candidate projects for the pooled-funded research which will be published in the AASHTO Newsletter shortly. We are also looking for several candidate projects for the NIOSH data collection as defined in Mr. William A. Weseman’s memorandum dated January 10, 1995 (copy attached). Although the FHWA is not directly involved in conducting the OSU or NIOSH/EPA data collection, we serve as the focal point in selecting and scheduling candidate projects for these studies.
Questions about these sections of the NHS, requests for technical support, or coordination for the NIOSH field testing program should be directed toMr. Jim Sorenson of the Pavement Division (HNG-40) at (202) 366-1324. Questions or requests for further information about the on-going research should be directed to Mr. Ramon Bonaquist at (703) 285-2629 at the Office of Engineering Research and Development, Special Projects and Engineering Division (HNR-20) at Turner-Fairbank Highway Research Center.
Original(s) by: Anthony R. Kane
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The National Highway System (NHS) Designation Act of 1995 contains the following provisions in Section 205(c):
This legislation only affects the FHWA. It does not affect metric conversion within DOT or any other Agency in the Federal Government. In fact, many Federal Agencies have taken major steps in their procurement activities. For example, the Department of Commerce, Department of Defense, Department of Veterans Affairs, General Services Administration, etc., all require metric in their product specifications and standards and in their acquisition regulations.
The FHWA will not require metric legends on highway signs. This provision does not restrict the use of Federal-aid funds for the installation of metric legend signs if a State so desires. However, the 1996 DOT Appropriations Act restricts the use of Federal funds for this purpose during FY 1996. The FHWA will assist any State that decides to develop an organized plan to convert its highway sign legends to metric units. The Office of Highway Safety (HHS-10), should approve the signing plan, if a State decides to use metric signs.
To support those States who wish to prepare for an orderly conversion of highway sign legends to metric units, the FHWA will make available a metric edition of the Manual on Uniform Traffic Control Devices (MUTCD), in 1998. In revising the MUTCD, the FHWA will be guided by the American Association of State Highway and Transportation Officials’ (AASHTO) publications, "Guide to Metric Conversion" and "Traffic Engineering Metric Conversion Factors." Meanwhile, the FHWA has two publications available for use: "Standard Alphabets for Highway Signs and Pavement Markings," and a draft of "Standard Highway Signs" (the final edition is scheduled for publication in 1997).
Project-related metric conversion activities by a State are optional until September 30, 2000. The FHWA will support any State that is already using the metric system and will encourage the few remaining States to convert as soon as possible, in an attempt to coordinate an orderly transition to metric.
The following FHWA project related policies/requirements will be modified accordingly:
Signed by: Anthony R. Kane
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This memorandum provides supporting information and guidance to assist in implementing Life-Cycle Cost Analysis (LCCA) requirements contained in the National Highway System (NHS) Designation Act of 1995.
Background
Section 303, "Quality Improvement," of the NHS Designation Act, amends Section 106 of Title 23, United States Code (U.S.C.), by adding a new Subsection (e) entitled "Life-Cycle Cost Analysis." Title 23, U.S.C., Subsection 106(e)(1) now directs the Secretary to establish a program that requires States to conduct a LCCA of each NHS high cost ($25,000,000 or more) usable project segment. This subsection further defines LCCA as "a process for evaluating the total economic worth of a usable project segment by analyzing initial costs and discounted future cost, such as maintenance, reconstruction, rehabilitation, restoring, and resurfacing costs, over the life of the project segment".
Both the House and Conference Committee reports on the act indicate that the basic intent of requiring LCCA on higher-cost Federal-aid NHS projects is to "reduce long-term costs and improve quality and performance." Although the House Committee report language indicates a desire for the Secretary to specify uniform analysis periods and to promote uniform use of discount rates as established by the Office of Management and Budget Circular A-94, the Conference Committee report language would prohibit the Secretary from prescribing the forms of LCCA that a State must undertake. Further, the Conference Committee report language specifically limits the Secretary's ability to require LCCA beyond high cost NHS usable project segments outlined in Section 303.
Implementation Guidance
In accordance with the provisions of 23 U.S.C., 106(e)(1), States must now conduct LCCA of high cost NHS usable project segments for such projects to be eligible for Federal-aid highway funding. An LCCA conducted in support of high cost NHS usable project segments must, as a minimum, produce an indicator of the total economic worth of the usable project segment that is based on analysis of initial as well as discounted future costs over the life of the project segment.
As used in LCCA required by 23 U.S.C., 106(e), the following definitions apply:
"High Cost" refers to useable project segments estimated to cost $25 million or more.
"Usable Project Segment" refers to a portion of a highway which a State proposes to construct, reconstruct or improve that when completed could be opened to traffic independent of some larger overall project. Such a "usable project segment" could be completed under a single contract or in multiple phases over several years.
The FHWA Division Offices should not prescribe the forms of LCCA that a State must undertake. The division offices should, however, assure that LCCA are consistent with the established fundamental principles of good/best practice. The LCCA that reflect good/best practices have sufficiently long analysis periods to reflect long term cost differences associated with reasonable investment alternatives, employ accepted discount rates, and address the inherent variability in input parameters. They include evaluation of the significance of overall cost differences between competing alternatives, particularly when the differences are relatively small. This improves the credibility of the analysis by quantifying, to the maximum extent possible, the probability that the predicted life-cycle costs will actually occur.
Overall, the FHWA policy on LCCA is reflected in our Interim Policy Statement on LCCA published in the July 11, 1994, Federal Register. Other sources of technical guidance on "good/best practice" include but are not limited to: NCHRP Synthesis Report 122, "Life-Cycle Cost Analysis of Pavements" (1985); NCHRP Synthesis Report 142 "Methods of Cost-Effectiveness Analysis for Highway Projects" (1988); and the 1993 "AASHTO Guide for Design of Pavement Structures." The NCHRP has a project underway entitled, "Life-Cycle Cost Analysis of Bridges" which will be available in 1997. The FHWA is currently developing additional guidance and training on good/best LCCA practice including risk analysis of life-cycle cost projections. We anticipate such guidance and training will be available in early FY 1997. In the interim, LCCA technical assistance and support can be obtained through the Headquarters’ Office of Engineering.
Although LCCA is only mandated on high cost NHS usable project segments, the NHS Designation Act did not rescind life-cycle cost considerations established by ISTEA and found in 23 U.S.C., Section 134(f)(12) and Section 135(c)(20). These sections specifically require consideration of "the use of life-cycle costs in the design and engineering of bridges, tunnels, or pavement." The potential benefits from conducting LCCA in support of lesser (under $25 million) but still significant highway investment decisions can be immense, and division offices should encourage States at the highest levels to conduct such analysis.
The FHWA Division Offices should encourage States to conduct LCCA early to prevent unnecessary delays at later stages of project development. The division offices should exercise flexibility on projects currently under development. As a general rule, the LCCA requirement need not apply to usable project segments which have already progressed beyond 60 percent plans, specifications, and estimates development.
In closing, everyone must recognize that LCCA is a decision support tool and the results of LCCA are not decisions in and of themselves. Often the resulting LCCA numbers themselves are less important than the logical analytical evaluation framework that LCCA fosters.
Signed by: Anthony R. Kane
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The purpose of this memorandum is to provide written guidance regarding the provisions in Section 307 of the 1995 National Highway System (NHS) Designation Act pertaining to contracting for engineering and design services.
The Section 307 amends Section 112(b)(2) of Title 23 to require States that contract in whole or in part with Federal-aid funds, for engineering and design services, to accept indirect cost rates established by audits performed in conformance with cost principles contained in the Federal Acquisition Regulation (FAR) of Part 31 of Title 48, Code of Federal Regulations (CFR). These added requirements shall take effect on November 28, 1996, 1 year after the date of enactment of the NHS Designation Act, unless a State adopts by statute an alternative process.
The provisions in our regulation (23 CFR 172) for consultant contracts for engineering and design related services currently limit reimbursement to the Federal share of costs allowable under the cost principles of 48 CFR 31. Section 307 now requires States to accept indirect cost rates established in accordance with the FAR, by other cognizant Federal or State government agencies, if such rates are not currently under dispute. The provisions need not be applied retroactively to existing contracts unless a contract is amended to accomplish work beyond the scope of the original contract.
The provisions of Section 307 are intended, in part, to eliminate the need for duplication of audits of consultant firms for purpose of establishing indirect cost rates for use on Federal-aid projects. The consultant may provide the contracting agency with a copy of an accepted (not in dispute) audit from a cognizant government entity having knowledge with cost principles contained in the FAR of Part 31 of Title 48. If not, it is suggested that States be urged to contact the cognizant or knowledgeable agencies in the State in which the consultant firm is located or in other States where the firm has worked for the past year in order to obtain the audit information, if it is available. This will reduce the possibility of duplication of audit efforts in establishing indirect cost rates in conformance with the FAR.
Once indirect cost rates established in accordance with the FAR are accepted, they shall be used in contract estimating, negotiations, administration, reporting and contract payment for the 1-year applicable period and shall not be limited by administrative or defacto ceilings of any kind. This has been interpreted to not allow ceilings other than limits established in accordance with FAR on any items included as part of the indirect cost used to determine the rate.
The indirect cost data of consultants is sensitive information in a competitive environment. Accordingly, States may share any needed audit information with other States for purposes of contracting with firms only with the written permission of the audited firm.
States have the option, in the 1-year period from the date of enactment of the NHS Designation Act, to adopt, by statute, an alternative process which would not require compliance with the provisions of Section 112(b)2)(C), (D), (E) and (F). The alternative needs to include provisions intended to promote engineering and design quality and ensure competition by professional companies of all sizes providing engineering and design services. The period may be extended by another regular legislative session if the legislature of a State does not convene and adjourn a full regular session during the 1-year period.
The pilot program requirement of Section 1092 of the Intermodal Surface Transportation Efficiency Act of 1991 is repealed. No final report will be issued for the pilot program.
Original signed by: Thomas J. Ptak
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Advance construction is a technique which allows a State to initiate a project using non-federal funds while preserving eligibility for future Federal-aid funds. Eligibility means that FHWA has determined that the project technically qualifies for Federal-aid; however, no present or future Federal funds are committed to the project. After an advance construction project is authorized, the State may convert the project to regular Federal-aid funding provided Federal funds are made available for the project.
Section 308 of the NHS Act replaced 23 U.S.C.115(d) relating to the amount of advance construction that may be authorized. The previous limitation required that future year authorizations be in effect one year beyond the fiscal year for which an advance construction application was sought, thus limiting the States’ flexibility to advance construct during the final year of an authorization act.
The NHS Act replaces that limitation with a requirement that advance construction projects be on the approved Statewide Transportation Improvement Program (STIP). The STIP covers a period of at least three years and is a financially constrained program which is not limited to the period of the authorization act. This change in the advance construction limitation will provide the States with more flexibility in financing projects and developing financial plans. From a State and local perspective, this provision allows more projects to begin construction sooner.
Eligible Projects
The following programs are eligible for advance construction:
An advance construction project must meet the same requirements and be processed in the same manner as a regular Federal-aid project, except the FHWA authorization does not constitute a commitment of Federal funds on the project.
At the time of project approval, FHWA and the State will execute a project agreement. The project agreement contains provisions for advance construction project and specifies that the total cost of the project is an obligation of the State. No Federal obligation is created until the project is converted to a regular Federal-aid project.
The projects must be included on the STIP and meet the tests of financial constraint required by 23 U.S.C. 135(f). The total amount that may be advance constructed will be limited as follows: the Federal share of all advance construction projects (amount not converted to Federal-aid) cannot exceed the sum of the State’s current unobligated balance of apportionments plus the amount of Federal funds anticipated in the subsequent fiscal years of an approved STIP, i.e., the amount used in developing the approved STIP. If this limit is reached, the FHWA Division Administrator will not approve any additional advance construction projects.
State planning and research, and metropolitan planning projects authorized under 23 U.S.C. 307© and 23 U.S.C. 104(f) are not required to be included on the STIP to be eligible for advance construction.
Conversion to a Regular Federal-aid Project
The State may submit a written request to the FHWA that a project be converted to a regular Federal-aid project at any time provided that sufficient Federal-aid funds and obligation authority are available. The State may request a partial conversion where only a portion of the Federal share of project costs is obligated and the remainder may be converted at a later time provided funds are available. Only the amount converted is an obligation of the Federal Government. The project should be identified on the STIP each year a conversion occurs.
Payment for Bond Interest on Advance Construction Projects
For projects authorized before November 28, 1995, interest earned and payable on bonds issued by a State is an eligible cost of construction but is limited as follows: Participating interest cost is based on the actual expenditure of bond proceeds on the Federal-aid project. The interest on the bonds is applied to the amount of bond proceeds expended on the project from the date of expenditure.
The amount of interest determined in the previous paragraph cannot exceed the estimated increase in the physical construction cost of the project which would have occurred had the project been authorized on the date of conversion. The estimated increase in the physical construction cost is determined by applying the increase, if any, in the national construction cost index in effect on the date of conversion over the index in effect on the date of the FHWA authorization to the actual cost of physical construction.
For projects authorized on or after November 28, 1995, all bond related costs authorized by 23 U.S.C. 122 are eligible.
[Questions relating to this guidance should be directed to Max Inman, Office of Fiscal Services, at 202-366-2853.]
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The National Highway System Designation Act of 1995 expanded the eligibility that had been provided in the 1991 Intermodal Surface Transportation Efficiency Act (ISTEA) for preventive maintenance activities. Specifically, section 309 of the NHS Act amended Title 23, Section 116 entitled, "Maintenance" by adding the following new paragraph:
Considerable flexibility remains so that each State, in cooperation with the division office and based on sound engineering analysis, can determine the most cost-effective strategies for extending the service life of existing pavements, bridges, and essential highway appurtenances on Federal-aid highways.
The previous guidance on preventive maintenance programs and eligibility which was contained in the Associate Administrator for Program Development's memorandums of May 21 and July 27, 1992, and the Executive Director's memorandums of June 14 and October 12, 1993, regarding the Interstate Maintenance (IM) program and preventive maintenance activities will remain in effect.
We are planning to consolidate these memorandums into a single policy at some time in the future. However, until that consolidated policy is issued, the same criteria should be used for approval of preventive maintenance projects on Federal-aid highways as was used for approval of projects on the Interstate System. These memorandums have provided guidance on a number of related issues such as implementing the IM program, establishing eligibility requirements for various maintenance activities, and restating our longstanding policy regarding the consideration of safety and geometric considerations during the development of federally funded 3R projects.
Questions regarding preventive maintenance activities should be directed to Mr. Jesse Story, Highway Operations Division, 202/366-4847.
Gerald L. Eller
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The purpose of this memorandum is to advise you of the provisions in Section 310 of the National Highway System Designation Act of 1995, P.L. 104-59, that concern Federal share. The following amendments to Federal share may be used for work obligated on or after November 28, 1995, the date P.L. 104-59 was signed.
100 Percent Share for Certain Safety Rest Areas
Section 310(a) amends Section 120(c) of Title 23 to include "safety rest areas" as an additional safety activity eligible for 100 percent Federal share. For the purposes of Section 120(c), the phrase "safety rest area" means "an area where motor vehicle operators can park their vehicles and rest, where food, fuel, and lodging services are not available, and that is located on a segment of highway with respect to which the Secretary determines there is a shortage of public and private areas at which operators can park their vehicles and rest."
The legislative history indicates the purpose of this provision is to address safety problems related to truck driver fatigue. Accordingly, the application of the 100 percent Federal share provision is limited to those activities at a safety rest area, either to be newly constructed or to be reconstructed, associated with providing for the movement and parking of trucks, including appropriate rest area facilities for the truck operators. Further, the higher Federal share is limited to safety rest areas where food, fuel and lodging services are not available. To qualify for this higher Federal share, there must be a showing by the State that there is a shortage of public or private areas at which truckers can park their vehicles and rest along the highway where the "safety rest area" activity is proposed. Decisions regarding the adequacy of the State's showing of a shortage of public or private parking areas for application of this higher match provision should be made by the division administrator.
Bicycle and Pedestrian Facilities
Section 310(b) amends Section 217(f) of Title 23 by replacing the 80 percent Federal share figure with a reference to Section 120(b) of Title 23. This allows the Federal share for bicycle and pedestrian projects to be the same as that for Federal-aid projects in general, including use of sliding-scale.
Economic Growth Center (EGC) Projects
Section 310(c) amends Section 1021(c) of the ISTEA regarding Federal share for EGC projects. A Federal share of 95 percent is allowed for an EGC project that is located on what was a Federal-aid system route as designated on the day before enactment of the ISTEA (December 17, 1991).
Arkansas Project
Section 310(d) allows a 95 percent Federal share for the project to construct a highway to the Northwest Arkansas Regional Airport from U.S. Route 71 in Arkansas.
This memorandum has been coordinated with the Office of Fiscal Services and the Office of Safety. Questions concerning it should be directed to Mr. David A. Price, Chief, Federal-Aid Program Branch, at 202-366-4652 or Mr. Jim Overton of his staff at 202-366-4653.
Signed by: Kevin Heanue, Thomas J. Ptak
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Section 311 of the NHS Act replaces 23 U.S.C. 122 and expands the Federal eligibility of bond related costs. The previous section 122 allowed certain types of projects to be approved as bond issue projects. Similar to advance construction, these projects were advanced as Federal-aid projects without any commitment of Federal funds until the bonds matured and the State converted the projects to regular Federal-aid. The section also allowed for reimbursement of bond interest costs on certain Interstate construction projects.
The new section 122 makes bond related costs eligible for Federal reimbursement on any Federal-aid project eligible under title 23, U.S.C. The definition of construction is also revised in 23 U.S.C. 101 to include a reference to bond related costs.
Eligible Projects
Bond related costs are an eligible cost of construction on projects authorized under title 23, U.S.C., including ISTEA demonstration projects, which are authorized by FHWA on or after November 28, 1995.
Bond projects authorized prior to November 28, 1995, under 23 U.S.C. 115, Advance Construction, and under section 122, Payment to States for Bond Retirement, are subject to the requirements in effect on the date of project authorization.
Eligible Costs
Eligible costs include interest payments under an eligible debt financing instrument, the retirement of principal of an eligible debt financing instrument, the cost of the issuance of an eligible debt financing instrument, the cost of insurance for an eligible debt financing instrument, and any other cost incidental to the sale of an eligible debt financing instrument.
Eligible debt financing instrument means a bond or other debt financing instrument, including a note, certificate, mortgage, or lease agreement, issued by a State or political subdivision of a State or a public authority, the proceeds of which are used for an eligible Federal-aid project.
Questions regarding the eligibility of debt instruments or incidental costs should be submitted to the FHWA division office and forwarded to the Office of Fiscal Services for an eligibility determination.
Federal reimbursement will be based on the amount of bond proceeds actually applied to Federal-aid projects. General costs relating to a debt financing instrument will be equitably distributed to Federal-aid and non Federal-aid projects.
Conditions
The eligibility of a debt financing instrument for reimbursement does not constitute a commitment, guarantee, or obligation of Federal funds to provide for payment of principal or interest; or create any right of a third party against the Federal government for payment.
[Questions relating to this guidance should be directed to Max Inman, Office of Fiscal Services, at 202-366-2853.]
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Section 313(a) replaced paragraph (a)(5) of 23 U.S.C., Section 129, relating to the Federal share for toll projects. The previous provision established a Federal share for toll projects that varied from 50 percent to 80 percent based on the activity and facility involved. The NHS Act amendment sets the Federal share for toll projects at 80 percent.
Background
Section 129(a) of Title 23 sets forth the statutory requirements governing use of Federal-aid highway funding for toll facilities. These provisions were significantly modified by the 1991 ISTEA and have been further amended by Section 313 of the NHS Act.
The ISTEA modifications were implemented by memoranda from FHWA Headquarters dated March 12, 1992, and May 14, 1993. In addition to the implementing guidance, FHWA Headquarters also issued a November 20, 1995, memorandum discussing the format and procedures for processing toll agreements.
The purpose of this guidance is to consolidate information on Federal-aid funding of toll facilities contained in the three previous memoranda, modified as appropriate to implement the NHS Act.
Additionally, the ISTEA also amended Section 129 by adding Section 129(a)(7) to allow Federal participation in a State loan to a toll project. The NHS Act modified the loan provisions of Section 129(a)(7) and expanded them to include nontoll highway facilities. The original implementing guidance for this section was included in the above noted March 12, 1992, and May 14, 1993, memoranda. Separate guidance will be issued on loan provisions that will consolidate information on loan provisions contained in the two previous memoranda, modified as appropriate to reflect the NHS Act amendments.
The following provides implementing guidance on the Section 129(a) toll provisions.
Eligibility
Section 129(a)(1) establishes five broad categories of toll activities eligible for Federal-aid highway funding. These are:
4R work on existing toll facilities is eligible for Federal participation regardless of whether or not the toll facility had in effect a prior Section 129 toll agreement with the FHWA.
Examples of reconstruction would be widening existing bridges or tunnels to add lanes or providing a dual facility. On the other hand, certain types of work clearly do not meet the intent for reconstruction. For example, putting up toll booths, painting and updating bridge rail are not considered to be work that would qualify a bridge for conversion. Although these latter types of activities could be eligible for Federal participation as part of a reconstruction effort, in and of themselves, they are not viewed as reconstruction.
The criteria of reconstruction could be satisfied by construction of a dual bridge or tunnel. The two bridges or tunnels do not have to be side-by-side; however, to be considered a dual facility, the new and existing bridge or tunnel must serve together as one to carry traffic on a single route.
Reconstruction or replacement and conversion from free to toll for a bridge or tunnel previously constructed with Federal-aid funds can be accomplished with or without Federal-aid participation. In either case, a Section 129(a)(3) toll agreement will need to be executed prior to undertaking the conversion project.
It is also noted that Section 129(a)(1)(C) contains no Interstate System restriction. Accordingly, existing Interstate System bridges or tunnels may be reconstructed or replaced and converted to toll facilities. This includes any Interstate tunnel or bridge, regardless of its size and significance.
Examples of reconstruction include adding new lanes to increase capacity, acquisition of access control coupled with construction of interchanges, or replacement of the full pavement structure. Reconstruction and conversion from free to toll for a highway previously constructed with Federal-aid funds can be accomplished with or without Federal-aid participation. In either case, a Section 129(a)(3) toll agreement will need to be executed prior to undertaking the conversion project.
Federal Share/Non-Federal Share
The Federal share for eligible toll facility activities under Section 129(a)(1), as outlined above, is 80 percent. Since Federal share for Federal-aid toll facility projects is controlled by Section 129 and not Section 120 of Title 23, the sliding scale provisions of Section 120 may not be applied to these projects. For privately owned toll facilities, the private entity is allowed to assume responsibility for the required non-Federal share of a toll project.
Toll Agreements - General
If Federal-aid funds are used for construction of or improvements to a toll facility or the approach to a toll facility or if a State plans to reconstruct and convert a free highway, bridge or tunnel previously constructed with Federal-aid highway funds to a toll facility, a toll agreement under Section 129(a)(3) must be executed. The toll agreement must be executed prior to either authorization of Federal funds for any work or the State undertaking a reconstruction and conversion project on its own. In addition, for 4R work on existing toll facilities, before authorization of Federal funds, a toll agreement needs to be executed or the existing toll agreement with the FHWA needs to be modified to incorporate the provision of Section 129(a)(3). A toll agreement is not needed for preliminary studies to determine the feasibility of constructing a toll facility.
The toll agreement must require that all toll revenues are first used for any of the following: debt service, reasonable return on private investment and operation and maintenance, including 4R work. An acceptable use of toll revenues can also be the establishment of reserve funds typically used by a toll authority in its financing structure. The reasonableness of the return to investors is a matter to be determined by the State.
At the option of the State, the agreement may also include a provision regarding toll revenues in excess of those needed for the required uses outlined above. This provision would entitle the State to use these excess revenues for purposes authorized under Title 23 if the State certifies annually that the facility is being adequately maintained.
The issue of whether a toll facility is to become free when debt is retired or at some other future point in time or whether tolls are to be continued indefinitely is a matter to be determined by the State. The toll agreement should reflect the State’s decision on this matter.
Toll Agreement Format and Provisions
The toll agreement must include a:
Based on recent experience, there has been a trend towards including extraneous items in toll agreements. These include discussion on specific Federal-aid project funding or financing arrangements, Federal share, design standards, compliance with other Federal-aid requirements or other Federal laws, project oversight, etc. These items are not required by Section 129(a)(3) and represent project specific issues that are inappropriate for inclusion in an agreement being executed by the Federal Highway Administrator. If there is a desire for written agreement on specific project issues, it should be handled through a two-party State/toll authority agreement. Any assurances regarding project specific Federal-aid issues should be handled by the division administrator.
As future toll agreements are developed, we expect them to only address those items needed to satisfy Section 129(a)(3). Toll agreements that contain extraneous provisions will be returned for revision and simplification and must be resubmitted for execution.
Processing of Toll Agreements
If requested, Headquarters will provide review comments on a draft toll agreement before the final agreement is prepared for signature by State and/or toll authorities. For quick review and comment, it is suggested the draft toll agreement be informally submitted to HCC-32, either by E-mail or fax.
The Administrator is the FHWA executing official for toll agreements, including modifications to previously executed agreements. The agreements should be transmitted from the region office to the Office of Chief Counsel, to the attention of General Law, HCC-32. General Law coordinates FHWA Headquarters review of the agreement and recommends execution by the Administrator.
For the convenience of the parties, a minimum of two counterpart originals of the toll agreements are needed (more may be submitted if the State desires) for execution by the Administrator. After execution by the Administrator, one original will be retained in Headquarters in the Federal-Aid and Design Division. The other original (or originals) will be returned to the region for transmittal to the State. The execution date of a toll agreement will be the date the FHWA Administrator signs it, so do not include one. The other signers can, however, affix a date to their signatures if they so choose.
Modification of Section 119 or 129 Free-up Toll Agreements
Existing free-up toll agreements executed prior to December 18, 1991, under Section 119(e) or Section 129 of Title 23 (including former Section 129(d) toll agreements for approaches to Interstate highways) may be modified to allow for continuation of tolls. A provision covering the annual State maintenance certification and use of tolls, as provided for in Section 129(a)(3), may be added to these agreements. An agreement modification needs to be executed by all parties to the agreement including the FHWA Administrator.
If an existing free-up toll agreement is not modified, the State is bound by the terms of that agreement covering the use of toll revenues and free-up requirements.
Imposition of Tolls
Decisions regarding the amount of tolls charged are made by the toll entity subject to requirements under State and local laws and regulations. This decision requires no review or input from the FHWA.
For toll activities under Section 129(a)(1)(A), (C) or (D) previously discussed in the eligibility portion of this guidance, tolls may not be imposed prior to the award of the physical construction contract. Decisions regarding whether tolls are collected in only one direction of travel versus both directions are at a State's discretion.
Ownership
In addition to public ownership, Section 129(a)(2) allows private ownership of a federally funded toll facility if the public authority having jurisdiction over the toll facility has entered into a contract with a private entity to design, finance, construct and operate the facility. If privately owned, the public authority having jurisdiction over the toll facility must ensure compliance with Title 23 requirements. In addition, to be eligible for Federal funding, the privately owned facility must be on a "public road" as defined in 23 U.S.C. 101(a).
Direct Payment to Other Entities
Section 129(a)(4) allows a State to request that the FHWA directly reimburse another public authority for the Federal share of a toll construction project undertaken on a facility under the jurisdiction of the other public authority. This applies to any toll facility eligible for construction or reconstruction under Section 129(a)(1).
[Questions relating to this guidance should be directed to Jim Overton, Federal-aid and Design Division, at 202-366-4653.]
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NHS Act Provision
Section 313(b) replaced 23 U.S.C. 129(a)(7), relating to eligibility of State loans for Federal-aid reimbursement. The previous provision established the eligibility of State loans for construction of toll facilities for Federal-aid reimbursement. The NHS Act amendment expanded eligibility of loans to include State loans to non-toll facilities with a dedicated revenue source for Federal-aid reimbursement. Further, the States were given greater flexibility in determining the interest rates for loans and given the authority to use loan repayments for additional credit enhancement activities.
Background
The ISTEA amended Section 129 to allow Federal participation in a State loan to a toll project. This provision was implemented by memoranda from FHWA Headquarters dated March 12, 1992, and May 14, 1993. Section 313 of the NHS Act amended the loan provisions of Section 129(a)(7).
The purpose of this guidance is to consolidate in one document, information on the loan provisions of Section 129(a)(7) contained in the two previous memoranda, modified as appropriate to implement the NHS Act amendments. The following provides implementing guidance on the Section 129(a)(7) loan provisions.
Eligibility
Section 129(a)(7)(A) allows the State to make loans to a public or private entity which is constructing, or proposing to construct, a toll project that is eligible for Federal-aid funding or a non-toll highway project with a revenue source specifically dedicated to support the project. The State may request authorization of a project for the purpose of making a loan to the public or private entity. The amount loaned by the State is considered an eligible Federal-aid project cost.
There are no Federal requirements that apply to how a State selects a public or private entity to be a recipient of a State loan. This selection process, including creation of public/private partnerships, is governed by State law. Further, it is the State’s responsibility to ensure that the loan recipient has used the loan for the purposes specified.
Dedicated Revenue Source - Non-toll Projects
A specifically dedicated revenue source is a revenue source which the loan recipient, or other appropriate entity, pledges for repayment of the loan. Revenue sources can include, but are not limited to, excise taxes, sales taxes, real property taxes, motor vehicle taxes, incremental property taxes, or other beneficiary fees. (However, there are criteria that limit use of airport revenues as a dedicated revenue source, and any proposal to use airport revenues must receive Headquarters’ concurrence prior to authorization of the loan.)
The pledge for repayment may involve all or only a portion of a revenue source or a combination of various revenue sources. In requesting authorization of Federal-aid funding for a loan to a project with a dedicated revenue source, the State will identify the dedicated revenue source(s) and provide written assurance that a pledge has been secured regarding use of the revenue sources(s) for repayment of the loan.
Authorization
If a project meets the test for eligibility, a loan can be made at any time. The loan may be for any amount, provided the maximum Federal share of the total eligible project cost is not exceeded. Total eligible project cost is limited to the costs of engineering, right-of-way acquisition, and physical construction remaining to be accomplished at the time the FHWA authorizes the loan to be made. In other words, a loan can be initiated on an active, eligible project, but the amount cannot include the cost of work done prior to the loan authorization. A loan project can be authorized under the advance construction provisions of 23 U.S.C. 115 that apply to the type of Federal-aid funds being used.
Federal-aid funds for loans may be authorized in increments. Federal-aid funds are obligated in conjunction with each incremental authorization. The State is considered to have incurred a cost at the time the loan, or any portion of it, is made. Federal funds will be made available to the State at the time the loan is made.
Federal Share/Non-Federal Share
The Federal share for a loan project under Section 129(a)(7) is established by Section 129(a)(5). Accordingly, the Federal share is 80 percent and may not be adjusted in accordance with a sliding scale under 23 U.S.C. 120. The non-Federal share may be provided by the public or private entity receiving the loan.
Compliance with Federal Laws
The State must ensure that the project is carried out in accordance with Title 23 and other applicable Federal laws, including any environmental and right-of-way provisions included in Federal law. The only exception, discussed under "Other Issues," concerns procurement of consultants or contractors by a private entity or toll authority. The initial toll or non-toll project for which a State has requested Federal payment for a loan is viewed as a Federal-aid project subject to the same basic requirements and FHWA oversight responsibilities which are being followed for comparable non-loan Federal-aid projects.
Subordination of Debt
At a State's option, the amount of any loan eligible for Federal reimbursement under Section 129(a)(7) may be subordinated to any other debt financing for the project.
Repayment/Terms of Loan
Loans must be repaid to the State. The repayment must begin within 5 years after the project is completed and opened to traffic and must be completed within 30 years after the date Federal funds are authorized for the loan or first increment of the loan. Interest on the loan is at or below market rates, as determined by the State, to make the project which is receiving the loan feasible.
Subsequent Use of Repaid Amounts
The State may use repaid amounts for:
Other Issues
Loan guarantees are not an eligible activity under the Section 129(a)(7) loan program. However, a reimbursable Section 129(a)(7) loan could well act as credit enhancement where a public or private entity is seeking market financing for a project.
Federal funds can participate in the construction of a toll facility or a non-toll facility with a dedicated revenue source either through a direct commitment of funds to the project (a regular Federal-aid construction project) or through a loan(s) to the public or private entity building the project. A State could also choose to use its Federal-aid funds to finance a portion of a project as a regular Federal-aid project and use a reimbursable loan for another portion of that project.
If Federal funding involves a regular Federal-aid project, the consultants or contractors used on the Federal-aid project must be selected under the Brooks Act or Title 23 competitive bidding procedures, respectively. However, if the Federal-aid funding is only via a Section 129(a)(7) loan project to a private entity or toll authority, that entity is allowed to select the consultant or contractors in whatever manner it sees fit as long as the selection process follows State laws and procedures.
[Questions relating to this guidance should be directed to Jim Overton, Federal-aid and Design Division, at 202-366-4653.]
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The purpose of this memorandum is to advise you of the provision in Section 313(c) of the National Highway System Designation Act of 1995, P.L. 104-59, concerning the eligibility of ferry operations between a State and Canada.
As of November 28, 1995, the date P.L. 104-59 was signed, Section 129(c)(5) of Title 23 has been amended to include ferry operations between a State and Canada. A State may use its Federal-aid highway funds, following the eligibility provisions set forth in Section 129(c), for ferry boats and ferry terminal facilities for such a ferry operation. This may include a publicly owned ferry terminal in Canada if this terminal is part of a ferry's operations.
Questions on this memorandum should be directed to Mr. David A. Price, Chief, Federal-aid Program Branch, at 202-366-4652, or Mr. Jim Overton of his staff at 202-366-4653.
Signed by: Thomas J. Ptak
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A May 20, 1994, memorandum to the Regions discussed the issue of the applicability of the Uniform Act to the activities of non-profit organizations. It was our position that the activities of non-profit organizations are subject to Uniform Act coverage if they are for a Federal or federally-assisted program or project. This includes, as the Comptroller General has noted, situations in which the land was acquired with the intention of using it for construction of a federally-assisted project.
The recent National Highway System (NHS) Designation Act of 1995 includes a provision, Section 315, which modifies this requirement in limited situations.
Section 315, “Applicability Of Certain Requirements To Third Party Sellers” is limited to transportation enhancement activities only. Section 315 applies to situations in which there is a two-step conveyance of real property - from a private owner (the third party) to a qualified conservation organization and then from that organization to an agency for a Federal-aid transportation enhancement activity. Section 315 essentially removes the first conveyance from the coverage of the Uniform Act, except in two specific situations: (1) if the conservation organization acted on behalf of the agency receiving Federal-aid when it acquired the real property, and (2) if there was Federal approval of property acquisition prior to the involvement of the conservation organization.
For the purposes of Section 315, the term “Federal approval of property acquisition” means the date of the approval of the environmental document, i.e., the Categorical Exclusion, the Environmental Assessment, or the Environmental Impact Statement, as appropriate. Similarly, the term “involvement of the conservation organization” means the date the organization makes a legally binding offer to acquire a real property interest (including an option to purchase) in the property.
If either of the two situations described above exists, then the requirements of the Uniform Act apply to the third-party seller transaction. In the first situation, the requirements of the Act would apply, just as if the agency receiving the Federal-aid had carried out the acquisition. In the second, the limited requirements under 49 CFR 24.101(a)(2), for an agency or person without eminent domain authority, would apply.
-Barbara K. Orski
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Rodney E. Slater
Administrator
Regional Administrators
Section 316 of the National Highway System Designation Act of 1995 (NHSDA) amends 23 U.S.C. 133(e) to give States the option of requesting advance payment for transportation enhancements. This provides a mechanism for easing cash flow problems experienced by some project sponsors by allowing funds to be advanced rather than reimbursed. This memorandum provides procedures for implementing this option. We request that you discuss with your States their interest in taking advantage of this new legislative flexibility.
Under the statute, the advance payment option is only available "if the Secretary certifies for the fiscal year that the State has authorized and uses a process for the selection of transportation enhancement projects that involves representatives of affected public entities, and private citizens, with expertise related to transportation enhancement activities." To take advantage of the advance payment option, States should provide information to FHWA demonstrating that its project selection process meets the statutory test of agency and citizen involvement. While it is up to each Division Administrator to be convinced that such agency and citizen involvement is real and substantive, this test might be met by the existence of broad-based advisory committees at the State or sub-State level, or other evidence of effective citizen participation and agency coordination processes in which transportation enhancement activities are addressed.
Qualifying States which desire to take advantage of the advance payment option should work with the FHWA division office to agree upon the specific procedure to be followed. The procedure should assure that the advance of funds be "limited to such amounts as are necessary to make prompt payments for project cost." for example, a State might base its request for advance payments on a payment schedule established for each project. The current bill would include such advances. The FHWA could verify the process a need through a process review or other method.
A copy of the pertinent portion of Section 316 of the NHSDA is attached for your convenience. Questions on the process for certifying States for using the advance payment option should be directed to Harold Peaks at 202-366-1598. Questions on the mechanics of advance payment should be directed to Tom Park at 202-366-2845.
The following is an excerpt from the pertinent portion of Section 316 of the NHS Bill:
Section 133(e) of title 23, United States Code, is amended-- (1) in paragraph (3)--
'(3) PAYMENTS-
(B) by moving the remainder of the text of subparagraph (A), as designated by subparagraph (A) of this paragraph, 2 ems to the right; and
(C) by adding at the end the following:
'(B) ADVANCE PAYMENT OPTION FOR TRANSPORTATION ENHANCEMENT ACTIVITIES-
'(ii) LIMITATION ON AMOUNTS- Amounts advanced under this subparagraph shall be limited to such amounts as are necessary to make prompt payments for project costs.
'(iii) EFFECT ON OTHER REQUIREMENTS- This subparagraph shall not exempt a State from other requirements of this title relating to the surface transportation program.'; and
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Associate Administrator for Program Development
Associate Administrator for Planning
On July 13, 1995, revised guidance was issued on the CMAQ program in response to comments from our customers expressed during the 1994 program review and earlier roundtable discussions of the Intermodal Surface Transportation Efficiency Act (ISTEA). The passage on November 28, 1995, of the National Highway System Designation Act (NHS legislation) brought several additional changes to the CMAQ Program. The attached Guidance Update incorporates the following changes:
The primary purpose of the CMAQ program remains the same: to fund projects and programs, whether in nonattainment or maintenance areas, which reduce transportation related emissions. The significant flexibility which resulted from the Revised Guidance of July 13, 1995, remains, including continuing support of outreach activities and encouraging experimental pilot projects.
If you have any questions on the CMAQ program or this guidance, please contact Mike Savonis of FHWA at (202) 366-2080 or Abbe Marner of FTA at (202) 366-0096.
NHS Act Provision
Section 322 of the NHS Act amended 23 U.S.C. section 323 to allow donated funds, materials, and services to be used as the State’s matching share. Section 323 previously limited eligible donations to real property.
Eligible Donations
These guidelines only apply to third party donations of funds, materials, and services. Third parties may include an individual, company, association, etc., but do not include a Federal, State, or local government agency.
Donations must be made by the third party after the date the project is approved by FHWA and prior to approval of the final voucher. No donations are eligible prior to the date of the NHS Act, November 28, 1995. Donated materials and services must meet the eligibility requirements of the project.
Eligible donations may be applied to the State’s matching share of the project on which the donation was made. Donations cannot be used to revise matching shares on unrelated projects. At no time may the Federal share of costs exceed the total project costs actually incurred by the State. If donations exceed the State’s share, the excess will be used to reduce the remaining project cost. If cost overruns occur, any excess donations previously used to reduce the remaining project cost, may be used to satisfy the State’s matching share of the cost overruns.
Federal Funds Used as Matching
In a few cases, Federal funds with specific legislative authority may be used to match other Federal funds. The following Federal funds may be used to match Federal-aid highway funds:
Documentation
Donations applied to the State’s matching share must be documented. Records must show how the value placed on in-kind materials and services was derived. To the extent feasible, volunteer services will be supported by the same methods that the organization uses to support the allocability of regular personnel costs, i.e., time sheets, time cards, etc. (This is reiterated in OMB Circular A-87, Attachment B Section 11(i) Donated Services and 49 CFR 18.24.)
Valuation of Donations
Donated materials and services will be valued at their market value at the time of the donation. Donated services may include labor, equipment, and costs related to providing the service. Donated labor will be valued at rates consistent with those ordinarily paid for similar work in the donor’s organization. If the donor does not have employees performing similar work, the rates will be consistent with those ordinarily paid by other employers for similar work in that location. Equipment will be valued at the fair market rental value or reasonable use rates.
Questions relating to this guidance should be directed to Max Inman, Office of Fiscal Services, at 202-366-2853.
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Regional Federal Highway Administrators
Federal Lands Highway Program Administrators
Section 328 of the National Highway System Designation Act (PL 104-59) amended Section 1058 of ISTEA which originally required each State highway agency to include a minimum of 2.5 percent of innovative median barrier in the total median barrier included in all projects on Federal-aid highways let to construction during each calendar year. In an effort to reduce State record-keeping and reporting requirements and to focus attention on those routes with national significance, this office has previously interpreted Federal-aid highways to mean only those on the National Highway System (NHS).
As modified, Section 1058 now requires, starting with calendar year 1996, that 2.5 percent of all barrier, including temporary barrier (but specifically excluding guardrail and guiderail), in contracts awarded each year for projects on Federal-aid highways be innovative. The definition of innovative was further revised to require a barrier that has met the National Cooperative Highway Research Program (NCHRP) Report 350 acceptance criteria. Since "guardrails and guiderails" are specifically excluded from consideration as innovative barriers by the amended legislation, and the NCHRP Report 350 compliance is necessary, permanent barriers meeting the innovative definition at present will be limited to 42-inch high (or higher) New Jersey, F-shape, vertical-faced and single sloped concrete barrier. Innovative temporary barriers are limited, at present, to the water-filled designs known as Guardian and Triton, both of which have passed the recommended NCHPR Report 350 tests.
Therefore, for calendar year 1996, each State highway agency will be required to certify that at least 2.5 percent of all temporary and permanent longitudinal barrier,EXCLUSIVE OF GUARDRAIL AND GUIDERAIL, included in contracts awarded on NHS routes in 1996 is innovative, as defined above.
We believe this procedure will minimize record-keeping and simplify the certification process as much as possible. Although there are no penalties associated with failure to meet the 2.5 percent requirement, each State highway agency should be actively encouraged to identify locations where an innovative barrier is in fact an appropriate choice. Such locations include medians in urban freeways and in other freeways where heavy commercial vehicles constitute a significant percentage of the ADT. Roadside locations that may warrant an innovative barrier include curves significantly sharper than those along adjacent segments of roadway, with special attention given to interchange ramps where design speeds may be significantly lower than on the main through lanes. Shielding bridge piers susceptible to damage from heavy vehicle impacts is another type of application potentially warranting, to good advantage, an innovative barrier.
Although the benefits of higher performance level innovative barriers may be obvious to many, a compilation of several "success stories" could be used to accelerate usage and ultimately render Section 1058 redundant. Towards this end, we would appreciate receiving accident reports and other information and photographs showing innovative barriers that have reduced the severity of accidents that could otherwise have been far more serious. An obvious example is a median barrier that prevented a tractor-trailer from reaching opposing traffic. Conversely, information on severe accidents with standard concrete barriers that would possibly have been less severe had an innovative barrier been in place would also be valuable.
Questions on this subject, should be addressed to Mr. Richard Powers of my staff at (202) 366-1320.
Thomas J. Ptak
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Section 332(a) of the National Highway System Designation Act of 1995 amended the description for the subject corridor as follows:
“I-73/74 North-South Corridor from Charleston, South Carolina, through Winston-Salem, North Carolina, to Portsmouth, Ohio, to Cincinnati, Ohio, to termini at Detroit, Michigan, and Sault Ste. Marie, Michigan. The Sault Ste. Marie terminus shall be reached via a corridor connecting Adrian, Jackson, Lansing, Mount Pleasant, and Grayling, Michigan.”
This section also identifies specific routings for the corridor in North Carolina, Virginia, West Virginia and part of Ohio. A copy of this section of the Act is attached for your easy reference.
The subject corridor and other high priority corridors described in Section 1105(c) of the ISTEA, as amended, are required components of the National Highway System (NHS). We have reviewed the designated NHS with respect to the statutory language regarding the subject corridor and have concluded that the corridor is adequately represented on the designated NHS with the following exceptions:
We are aware that feasibility studies are either underway or planned by several States for specific corridor segments. In the event these studies lead to a conclusion that the NHS should be modified, we would be happy to consider proposals at that time.
Copies of individual State maps for Michigan, Ohio, West Virginia, Virginia, North Carolina and South Carolina are attached. The corridor is highlighted in yellow. Please ask the division offices to work with the States to identify the needed modifications. A response by March 15 will be appreciated.
Questions concerning this memorandum should be directed to Tom Weeks (TWEEKS) at (202) 366-5002 or Martin Weiss (MWEISS) at (202) 366-5010.
Original /s/ by: Kevin E. Heanue
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Associate Administrator for Program Development
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Regions 1, 3, 4, 5, and 6
Section 332(a)(2) of the National Highway System (NHS) Designation Act of 1995 designates all or portions of four NHS high priority corridors as future parts of the Interstate System and establishes criteria for approving segments as Interstate routes. This section also authorizes the use of unobligated Interstate construction (IC) funds, under certain conditions, for constructing and improving these routes.
The purpose of this memorandum is to transmit interim guidance for implementing these provisions. The attached guidance only applies to the portions of corridors specified in Section 332(a)(2).
Guidance concerning signing for corridors officially designated as future Interstate routes will be provided at a later date.
Questions concerning the addition of segments of the future Interstate corridors to the Interstate System should be directed to Tom Weeks at (202) 366-5002; questions concerning the use of IC funds in the corridors should be directed to Don Marttila at (202) 366-4637.
Thomas J. Ptak
2 Attachments
Section 332(a)(2) of the National Highway System (NHS) Designation Act of 1995 designates all or portions of four NHS high priority corridors as future parts of the Interstate System and specifies that a segment of the corridors will become part of the Interstate System at such time as the Secretary determines that the segment; (a) meets the Interstate System design standards under 23 U.S.C. 109(b), and, (b) connects to an existing Interstate System segment. The four corridors specified in the act as future parts of the Interstate System are:
Procedures-Designations
The following guidance is comparable to current procedures for Interstate System designation requests under 23 U.S.C. 139(a). All Interstate System additions must be approved by the Federal Highway Administrator.
Section 1105(e)(5)(C)(i) of the ISTEA, as amended, permits unobligated balances of Interstate construction (IC) funds apportioned to the States under 23 U.S.C. 104(b)(5)(A) to be used to construct and improve Interstate facilities in the four corridors designated by Section 332(a)(2) of the National Highway System Designation Act of 1995. The Act includes several important conditions and limitations:
Section 1105(e)(5)(B) of the ISTEA, as amended, states that Interstate segments designated under Section 332(a)(2) and their mileage shall be treated in the manner described in the last two sentences of 23 U.S.C. 139(a), i.e., the designation shall create no Federal financial responsibility with respect to such highways. The net effect of the provision on such additions to the Interstate System is that; (1) the lanes miles and vehicular miles traveled on the segments will not be included in the formula of computing apportionments of Interstate Maintenance (IM) funds, and, (2) IM funds may not be used to fund projects on the segments.
Procedures-IC funding
State requests to use some or all of its unobligated IC funds for construction of projects on one of the Section 332(a)(2) corridors must be forwarded in writing through the FHWA field offices to the Director, Office of Engineering for approval and must provide at least the following information:
The National Recreational Trails Funding Program (Trails Program) received $15 million annually in contract authority for fiscal years (FY) 1996 and 1997 in the National Highway System (NHS) Designation Act of 1995. For FY 1996, we have retained $336,000 for administrative expenses (less than the $450,000 permitted) and we are allocating the remaining $14,664,000 to eligible States.
As specified in the National Recreational Trails Fund Act (NRTFA), as amended, (Section 1302 of ISTEA, and Section 337 of the NHS Act), a State must have a Recreational Trail Advisory Board on which both motorized and nonmotorized recreational trail users are represented to be eligible to receive an allocation under the Trails Program. The deadline for establishing this board was December 18, 1994. However, many States did not establish their boards because the Trails Program did not have any funding, and funding remained uncertain until the NHS Act was passed.
Therefore, we have established a certification procedure to provide as many States as possible with an opportunity to participate in the Trails Program and ensure that funds go to those States that are eligible consistent with the NRTFA. We are requesting that you work with the appropriate State agency to satisfy this certification requirement. Attachment A describes what is required for a State to certify eligibility to receive an allocation of obligation limitation under the Trails Program. The deadline for State certification is June 4, 1996. A copy of the certification should be forwarded to Christopher Douwes, HEP-10, so that obligation limitation may be allocated to the State.
Attachment B lists the amount of funds that will be available for allocation in FY 1996 if States certify their eligibility to receive an allocation of obligation limitation. Attachment C explains how the amounts in Attachment B were developed. If a State remains ineligible for funding after the June 4, 1996, deadline, its share of funds will be allocated to the eligible States.
The Trails Program allocations are not part of the Federal-aid highway apportionments and allocations. The Trails Program allocations do not affect a State’s Minimum Allocation, Donor State Bonus, or other Federal-aid highway program apportionments or allocations.
According to the NRTFA, Trails Program allocations through the National Recreational Trails Trust Fund are available for obligation for 4 fiscal years (current year plus 3 years). However, since the FY 1996 and 1997 funds are contract authority through FHWA administrative funds, these funds, once allocated to an eligible State, are available for obligation until expended. Nevertheless, States should try to obligate their funds in a timely manner.
The NHS Act made several important changes in the Trails Program. The State fuel tax requirement was deleted. The Trails Program now provides for a 50 percent Federal share for each project, and requires a 50 percent non-Federal share. The NHS Act allows the donation of private funds, materials, and services at fair market value to be counted toward the non-Federal share.
Attachment D provides guidelines for establishing the State Recreational Trail Advisory Boards.
We are issuing program guidance for the Trails Program in a separate memorandum. If you have further questions, please contact Christopher B. Douwes, HEP-10, at (202) 366-5013; or John C. Fegan, HEP-10, at (202) 366-5007.
/s/ Kevin E. Heanue, for:
-Thomas J. Ptak
Attachment A
National Recreational Trails Funding Program
State Certification Procedure
To receive a FY 1996 allocation through the National Recreational Trails Funding Program, a State must send a letter to the FHWA division office certifying that it meets certain requirements of the program as outlined below. The State should send this letter as soon as it can certify that it meets the criteria. The certification should be forwarded to Christopher B. Douwes, HEP-10, so that obligation limitation can be allocated to the State.
The deadline for a State’s certification letter to be received by the division is on or before June 4, 1996. A State that has not certified eligibility by this date will not be allocated any funds for FY 1996, and remaining funds will be reallocated to eligible States in mid-June 1996. A State ineligible to receive an allocation in FY 1996 will be eligible to receive an allocation in FY 1997 if it certifies that it meets the criteria before September 30, 1996.
The certification letter must include the following:
According to the National Recreational Trails Fund Act (NRTFA), half of the funds allocated to the States are allocated equally among all States. The other half of the funds are allocated in proportion to the amount of nonhighway recreational fuel use in each State.
Explanation of Columns in Attachment B
Category 1 | Nonmotorized single use projects (such as pedestrian use only, or ski use only) |
---|---|
Category 2 | Nonmotorized diversified projects (such as pedestrian, bicycle, and in-line skate use) |
Category 3 | Diversified use projects for both motorized and nonmotorized use (such as summer equestrian use and winter snowmobile use, or a common trailhead project serving separate ATV and bicycle trails) |
Category 4 | Motorized single use projects (such as snowmobile use only) |
Category 5 | Motorized diversified use projects (such as light utility vehicle and motorcycle use). |
Half of the funds allocated under the National Recreational Trails Funding Program are allocated in proportion to each State’s share of nonhighway recreational fuel use. The FY 1996 allocations are based on a model developed by Oak Ridge National Laboratories for FHWA in July 1994. This report was distributed to all FHWA Regions, Divisions, and to States in November 1994. The Oak Ridge model allows FHWA to insert updated vehicle and fuel use information.
Some State shares of FY 1996 allocations are significantly different from the FY 1993 allocations. FHWA did not have complete fuel use information available when the FY 1993 allocations were made, especially about light utility vehicles. A major factor in the FY 1993 allocations was fuel use by snowmobiles. The Oak Ridge report found that fuel use by light utility vehicles is the predominant factor. Therefore, States with heavy snowmobile use have relatively smaller shares in FY 1996 than in FY 1993. States with more light utility vehicle use have relatively larger shares in FY 1996 than in FY 1993.
FHWA will continue to monitor off-road recreational fuel use to assure fair allocations to the States.
The National Recreational Trails Fund Act (NRTFA) states that “a State shall be eligible to receive moneys under this part only if . . . a recreational trail advisory board on which both motorized and nonmotorized recreational trail users are represented exists within the State.” This means that, to receive an allocation under the NRTFA:
States have substantial flexibility in determining the membership of the Recreational Trail Advisory Boards. The State Advisory Board may include uses not represented on the National Committee, such as in-line skating, birdwatching, or dog-sledding. It may include multiple representation from a particular mode, such as urban trail bicycling and mountain bicycling. It may have representation from local, State, or Federal agencies, from land use or natural resource groups, other trail advocacy groups, recreational businesses, etc. However, an Advisory Board consisting only of State officials and natural resource organizations would not qualify under the NRTFA, because the Board must have trail user representation.
Some States had previously existing nonmotorized trail committees and previously existing motorized trail committees. A State may combine these committees for the purposes of the NRTFA.
The Small State Exclusion [section (e)(7) as amended in the NHS Act] does not exempt any State from the requirement to have both motorized and nonmotorized recreational trail user representation. The Small State Exclusion only allows a small State to exempt itself from the requirement to meet the 30 percent minimum motorized or 30 percent minimum nonmotorized requirement. The Small State Exclusion only applies to DC, RI, DE, PR, and CT. It does not exempt a State from the 40 percent minimum diversified requirement.
Duties of the State Recreational Trail Advisory Board
The NRTFA (as amended) lists the following duties for the State Recreational Trail Advisory Board:
Section (e)(3): Provide guidance to the State for how the State may make grants to private individuals, organizations, city and county governments, and other government entities.
Section (e)(5): Issue guidance to the State to meet the new environmental mitigation requirement,a State should give consideration to project proposals that provide for the redesign, reconstruction, nonroutine maintenance, or relocation of trails in order to mitigate and minimize the impact to the natural environment.
Section (e)(6): Provide guidance to the State to determine compliance with the diversified trail use requirement,that at least 40 percent of the funds must be used for projects that provide for the greatest number of compatible recreational uses, or provide for innovative recreational trail corridor sharing to accommodate both motorized and nonmotorized recreational trail use.
Section (e)(9): May approve an exemption for the State from the Assured Access to Funds requirement,that at least 30 percent of the funds be used for projects relating to motorized use and at least 30 percent of the funds be used for projects relating to nonmotorized use. Each State has the flexibility to determine other roles for the Advisory Board. The National Recreational Trails Advisory Committee encouraged States to involve their Advisory Boards in project selection, both for projects funded under the NRTFA, and for State-funded projects.
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The recently enacted National Highway System Designation Act of 1995, P.L. 104 59, Section 352, includes a provision regarding toll collection on the Verrazano Narrows Bridge. Section 352 states:
"Notwithstanding any other provision of law, tolls collected for motor vehicles on any bridge connecting the boroughs of Brooklyn, New York, and Staten Island, New York, shall continue to be collected for only those vehicles exiting from such bridge in Staten Island."
This provision allows tolls to be collected only from westbound vehicles on the Verrazano Narrows Bridge. No tolls can be collected on vehicles traveling eastbound.
This provision is similar to one contained in several recent appropriations acts. However, since it is now included in permanent statute, it will remain in effect indefinitely unless the statute is amended.
Questions may be directed to Mr. David Price, Chief, Federal-Aid Program Branch, 202-366-4652, or Mr. Jack Wasley, 202-366-4658, of his staff.
Signed by: Kevin Heanue, Thomas J. Ptak
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