Foxx Issues Controversial Final Rule on MPOs

Foxx Issues Controversial Final Rule on MPOs

December 16, 2016  | Jeff Davis and Greg Rogers

December 16, 2016

Transportation Secretary Anthony Foxx this week decided to move forward with issuance of a final rule requiring metropolitan planning organizations (MPOs) in many jurisdictions to consolidate. The final rule was sent to the Federal Register for eventual publication yesterday despite overwhelmingly negative comments on the proposed version of the rule from stakeholder groups and the public.

The text of the final rule was quietly posted on the Federal Highway Administration’s website yesterday. Later that day, the Office of the Secretary chose to make a public announcement, but not from Foxx himself. Instead, the mayor of Tampa, Florida made a post on the USDOT blog which said that the new rule “aligns practice with the statutory definition of ‘Metropolitan Planning Area’ (MPA) and requires that MPO planning takes place at this regional level – encompassing the entire Urbanized area (UZA) and the surrounding area forecast to become urbanized in the next 20 years…In some regions, adjoining MPOs will be able to simply adjust their boundaries in order to align with MPA boundaries.  In others, MPOs may choose to merge.   Some MPAs may be so large and complex that the Governors and MPO leadership can choose to remain separate and coordinate the release of unified transportation improvement and long range transportation plans.”

ETW has covered this issue extensively since the Department issued a proposed rule out of the blue on June 27, 2016. In addition to our initial summary, subsequent issues featured expert commentary from Barry Seymour, Emil Frankel, Carl Mikskya and Steve Heminger on the pros and cons of the proposed rule. Reaction to the proposed rule was so negative that DOT extended the comment period once.miami-50554_1920

The comments submitted on the proposed rule can be found on the electronic docket here. The final rule summarizes the comments: “Sixteen commenters expressed support for the NPRM.  The FHWA and FTA received 156 comments in support of the stated purpose of the proposed rule, which is to improve the transportation planning process by strengthening the coordination of MPOs and States and promoting the use of regional approaches to planning and decisionmaking to ensure that transportation investments reflect the needs and priorities of an entire region.  While these commenters supported the stated purpose of the rulemaking, they did not support the specific requirements and procedures articulated in the proposed rule because the commenters believe the rule will not strengthen coordination efforts beyond current practices.  The FHWA and FTA received 299 comments in opposition to the NPRM, of which 249 requested that FHWA and FTA withdraw the rulemaking.”

The Department made two changes from the proposed rule: a deadline extension until after 2020 Census data can be fully digested (so an approximate implementation date of 2024), and a new provision allowing local MPOs to appeal to USDOT for permission to keep using independent planning products (but the final decision to force mergers and unification would stay federal).

This rule has its genesis in Foxx’s experiences as mayor of Charlotte, North Carolina and his experiences with the multiple MPOs there. But in places where urbanized areas cross state lines (and urbanized areas blend together), the situation gets more complicated. The National Capital Region Transportation Planning Board (the MPO for the Washington DC area) said in its comments on the rule that “The new federal rules could require the creation of a new metropolitan planning area (MPA) spanning at least six state-level jurisdictions from Virginia to New Jersey…Depending on one’s interpretation of the new rules, the new “Super-MPA” could stretch north all the way to Massachusetts. The mobility needs, local transportation and land use planning policies and priorities, and availability and appropriateness of different travel modes would vary immensely across a region of this size…At least seven Governors and the Mayor of DC would have to sign agreement(s) for unifying the planning products as well as coordinating data collection methods and planning assumptions. Agreements, especially complex agreements, can take years to develop and approve.”

(Ed. Note: The DC area’s mass transit system, Metro, has its decisions made by a joint DC-Maryland-Virginia board. The record of responsible, long-term decisionmaking by that board is not an impressive one. Now imagine adding Pennsylvania, Delaware, New Jersey, New York, Connecticut, Rhode Island and Massachusetts politicians to that kind of decision-making process and requiring unanimity to make decisions.)

cityscape-823618_1920The bipartisan leadership of the House Transportation and Infrastructure Committee wrote to Foxx on August 24 in opposition to the rule. Their letter said that the proposed rule “represents a serious overreach by the Administration, exceeds what is required in statute, and is contrary to Congressional intent. For any urbanized area represented by more than one MPO, the affected MPOs and the Governor(s) would be placed in the position of having to choose to either merge, develop unified planning documents, or realign MPO boundaries. The NPRM also proposes to require unified planning documents in urbanized areas that cross state lines. We find it especially troubling that a rulemaking of this significance is being pushed through at such a lightning pace in order to be completed before the end of this Administration.”

With bipartisan opposition from Congressional committee leaders, this last-minute rule seems a likely candidate to be reversed by Congress next year under the Congressional Review Act. However, there are a lot of much larger rules that Republicans are wanting to overturn that would be ahead of the MPO rule on any action list. And even though resolutions of disapproval that kill regulations are exempt from filibuster in the Senate (having a maximum debate time of 10 hours), under current law, it’s one resolution per rule. If Republicans succeed in getting 60 votes in the Senate next month for this legislation that passed the House last month, allowing one resolution of disapproval to kill dozens of rules, then the MPO rule would almost certainly be on that cancelation list. But it may take a while before Senate Republicans have ten hours of floor time to spare on an issue as esoteric as MPO reform.

(Everyone should bookmark this Congressional Research Service report explaining how the Congressional Review Act works, because it will be used a lot in January and February 2017. In particular, this bit will apply to the MPO rule (which should take effect by the time President Trump is sworn in): “What Happens if a Rule that Is Already Effective Is Overturned? If a rule has already taken effect, the CRA provides that the rule shall not continue in effect and “shall be treated as though such rule had never taken effect.”)

In the short time since the final rule came out, ETW has reached out to some of our former expert commenters who wrote on the issue and also reached out to some stakeholder groups as well. Here are their comments on the final rule.

Steve Heminger, Executive Director of San Francisco Metropolitan Transportation Commission:

“There’s an old legislative saying that you should never amend a bad deal. While the final rule has exemptions and delays san-francisco-1633204_1280implementation, there are still a number of issues here.

“It would move the venue of deciding MPOs from the governor and elected officials to a cabinet official in Washington. MPOs work in carrying out localized policies because the elected officials are vested in those institutions, and this rule really runs the risk of breaking that change.

“There are clearly problems in many large metro areas that are served MPOs, but as I said in my op-ed for ETW, there are better solutions to solving this problem… and this is not the best way.

“This rule directly affects our region, even though we have two almost-infinitesimal overlaps in the Bay Area.

“The implementation date is 2024, one good thing about that is it gives us some time to talk about this in a legislative context . . . I think that’s where a decision like this belongs.”

Carl Mikyska, Executive Director, Florida Metropolitan Planning Organization Advisory Council:

“Overall, we are pleased with the two primary changes which were made from the proposed rule to the final rule.  Both are welcome changes from the proposed rule and we view these changes as a positive step in making this final rule much more workable.  Both of the changes were items that my organization, Florida MPO Advisory Council, had requested in our written comments.

“Delaying the implementation until after the 2020 census defined UZAs are announced is very welcome and sensible.  We had predicted that with the proposed rule, MPOs would go through the effort to arrange new structures and coordinate plans as required by the proposed rule.  Then in short order the 2020 census defined UZAs would be announced and likely cause many of the Florida MPOs to go back and rework their coordinated plans and targets with potentially new geographic areas.  With Florida being a high growth state, we expect to see dramatic changes to the UZA boundaries with each successive census and so this change is especially helpful.  The provision to allow for an exception, or opt-out, to the rule is also quite welcome and we hope that the approval process by USDOT will be easy to navigate. Both of these changes in the final rule are welcomed by Florida MPO Advisory Council.

“We had asked that the final rule go further by considering the aspects, and previous collaboration work, of each area.  We also asked that USDOT take a voluntary, incentive based approach to collaboration and coordination rather than a one size fits all approach.  Unfortunately the direction taken in the final rule was quite different than what Florida MPOAC requested in our comments.  This rule affects Florida more than any other state with 22 of our MPOs impacted and after the 2020 census Florida may have even more affected MPOs because of our rapid population growth.

“In closing, Florida is a peninsula and as a result we have only one multi-state MPO.  This unique geographic feature will certainly ease our efforts to comply with the final rule as released by USDOT today.  Many other regions in the United States have metropolitan areas that cover multiple states.  These areas will have much more work in front of them in the future as they coordinate among multiple MPOs, multiple local units of government, multiple State DOTs and multiple Governors.  During the conference call organized by USDOT today to discuss this rule, we could hear the frustration in the voices of these MPO participants as they asked pointed questions of USDOT staff.  Many MPOs have previously predicted this rule will not improve transportation planning.   For these MPOs the nature of transportation planning will be drastically changed as we go forward.    In a nod to Yogi Berra we can say: ‘The future ain’t what it used to be’.  This final rule will prove Yogi right.”miami-50554_1920

Erich Zimmermann, Director of Transportation Programs, National Association of Regional Councils (NARC):

“While we generally believe the rule is well-intentioned and appreciate the small changes made in the final rule, we are disappointed that more substantial changes were not made in response to the substantial feedback provided by the nation’s MPOs. Of the MPOs that commented, some 90% are opposed to the rule as proposed.

“The organizations we represent already support significant regional cooperation and coordination. This is the very role MPOs were created to play. Comment letters from MPOs across the nation contained excellent examples of (voluntary) cross-boundary cooperation. The type of cooperation mandated by the final rule is occurring every day.

“This rule will have significant and far-reaching unintended consequences. A fundamental restructuring of many of the nation’s MPOs (including in the nation’s largest metropolitan areas), which is ultimately what this rule is, requires the consent of Congress and the input of the effected organizations. This final rule has neither. Ultimately, for the MPOs that will be impacted by this final rule, we fear that it will take their attention away from the important work they do for their regions; will require them to spend precious transportation dollars without additional funding; and will interfere with and slow-down local project delivery.

“The one-size-fits-all approach taken in the development of this rule – with limited or no input from the MPOs that must live with the consequences – is particularly ill-suited when it comes to regional planning. Regional approaches require a delicate balance of the competing interests of a wide-range of local partners, and upsetting that balance can have significant impacts. Though this rule may improve the coordination between MPOs in some areas, in others it creates unnecessary busy work at best and far-reaching negative consequences for the planning process at worst.

“A more robust dialogue by USDOT with the nation’s MPOs would have likely resulted in a rule that better identifies that problems being solved and more successfully works toward a solution that could be supported by many or all MPOs. Instead, USDOT used a unilateral process with little or no input and are imposing a rule upon MPOs that for many is a solution in search of a problem.”

Susan Howard, Director of Government Relations and Legislative Affairs, National Association of Development Organizations (NADO):

“1) Appreciate the extended deadline for compliance. The original two years was unrealistic and overly burdensome.

“2) Disappointed they moved forward, despite overwhelming opposition expressed in public comments.

“3) There are still many question and concerns about the impact of this rule, particularly on MPOs that cover more than one state or are similarly complex.”

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