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FHWA Releases Interim Guidance for New Transportation Law

The new transportation law that Congress passed this June — MAP-21 — officially became law on Monday, October 1. In preparation, the Federal Highway Administration (FHWA) at the US Department of Transportation (US DOT) today released interim guidance to help state DOTs implement the new Transportation Alternatives Program (TAP).

US DOT guidance is an instruction manual for states on how to carry out the law that Congress passed. Guidance is based on a legal reading of the law, the intent of members of Congress, and US DOT's interpretation.

Today's round of guidance is "interim," meaning that it only includes the most basic interpretation of the law. US DOT is expected to release more guidance later this fall. 

A step forward

As biking and walking advocates, we were hoping that the guidance from US DOT would improve a disappointing bill. Guidance can't change the meaning of the law, but the DOT's interpretation of the law can make funding easier or harder to access.

Because the bill was written so hastily, there were a few areas where the drafting was vague and could have been interpreted in two different ways. However, due to a strong effort by our champions in Congress and inside US DOT, the guidance overall is positive. 

Among the wins:

  • TAP maintains local control over biking and walking funds, preserving the original intentions of Senators Cardin and Cochran.
    • There was some concern that the language could be interpreted to make state DOTs eligible for 50% of TAP. This would have diminished local control over half of these essential funds. Fortunately, state DOTs remain ineligible for TAP funding. 
    • However, State DOTs and MPOs can partner with eligible entities to carry out a project. This increases flexibility for states and helps local governments get the help they need while maintaining local control.
  • Safe Routes to School coordinators are eligible under TAP.
    • MAP-21 was written in a way that makes the entire Safe Routes to School (SRTS) program eligible for Transportation Alternatives funding, but not required. This made it difficult for the DOT lawyers to interpret whether requirements under the old SRTS program should be requirements under the new TAP. However, DOT does interpret SRTS coordinators to be eligible under TAP. We believe that fully staffing these programs is critical to successfully implementing them.
  • The DOT will provide a model MPO and State Grant process.
    • While TAP legislative language does not define a competitive process, the DOT has committed to publish a model Request for Proposal or Notice of Funds Available that States and MPOS may use at their discretion. Having a model available should speed up the process of MPOs getting their grant programs up and running. 
  • Nonprofits, while not eligible to receive funds, can partner with other eligible entities.
    • The legislative language is clear that nonprofit organizations and NGOs are not eligible for TAP funding. However, the guidance states that nonprofits can continue to partner with any eligible entity. Watch for the model grant program to see if such partnerships are incentivized. 

Among the losses:

  • SRTS projects are no longer 100% federally funded. 
    • Under previous transportation laws, Safe Routes to School projects were completely federally funded. This level of federal support was especially important for low-income communities. 
  • Bicycling and pedestrian safety and education programs for adults are not eligible.
    • Non-infrastructure safety and education programs are no longer eligible for funding — not even under the new Safe Routes for Non-Drivers eligibility. The guidance does point out, though, that adult safety and education programs are eligible under the Highway Safety Improvement Program (HSIP) and the Surface Transportation Program (STP). It also points out that education for kindergarten through eighth grade is eligible under Safe Routes to School.

Next steps: speak up locally & turn to the larger programs

We can take two clear messages from today’s guidance.

  1. State and local action is critical to ensure funding for biking and walking projects and programs. 

    In MAP-21, local leaders — like mayors and school boards — have more direct access to federal funding for biking and walking infrastructure. Now more than ever before, it is up to state and local advocates to make communities more bike-friendly and walkable. 

    To learn more about how to get involved in a campaign in your state, visit Advocacy Advance's Navigating MAP-21 resource center at AdvocacyAdvance.org/MAP21.
     
  2. Accessing funds from the transportation bill's larger programs is more important than ever.

    Larger highway programs like the Highway Safety Improvement Program (HSIP), Congestion Mitigation and Air Quality (CMAQ), and Surface Transportation Program (STP) are not only more essential sources for infrastructure dollars, but also for funding education, encouragement, and safety programs. 

    If you're interested in learning how to maximize eligibility for biking and walking projects under MAP-21's largest programs, view Advocacy Advance's webinar featuring America Bikes' campaign director, Caron Whitaker

Most of the areas on which we had issued recommendations have still not been determined. We will, of course, continue working at the federal level to advocate for changes to improve funding opportunities for biking and walking projects.

Click "Read More" to view our full analysis.

Table of contents

Transportation Alternatives (TAP)
Highway Safety Improvement Program (HSIP)
Congestion Mitigation and Air Quality (CMAQ)
Mandatory Sidepath Provision

Transportation Alternatives Program (TAP)

America Bikes' Recommendations

US DOT Guidance

Ensure that states carry out a "good faith effort" to make Transportation Alternatives funds available to local governments through grants. 

MAP-21 establishes that state DOTs will give local governments and school districts access to Transportation Alternatives funds through a state-run competitive grant program. We recommend that US DOT provide state DOTs with best practices and recommendations on application deadlines, process, and timely obligations for efficient, effective grant programs. 

 

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To be determined — not addressed in interim guidance 

Include a model grant process for Metropolitan Planning Organizations. 

Under MAP-21, state DOTs will sub-allocate Transportation Alternatives funds to MPOs with a population greater than 200,000. MPOs will then distribute these funds through a competitive grant process.

Because many MPOs will be new to running a competitive grant process, we recommend that US DOT provide best practice recommendations on:

  • Application deadlines;
  • Decision-making criteria;
  • Engaging underrepresented and/or socially disadvantaged populations;
  • Creative diverse decision-making committees; and 
  • How to manage grants to ensure quick completion. 

 

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While the law does not define what a 'competitive grant process' is, the guidance states that "DOT will publish a model Request for Proposal or Notice of Funds Available that States and MPOS may use at their discretion."

 

 

Collect and disseminate essential data on bicycling and walking.

Two clearinghouses — the Safe Routes to School National Center and the Bicycle and Pedestrian Information Center — currently collect important data about biking and walking and provide technical assistance on biking and walking programs. We recommend that US DOT retain these two centers.

We also encourage US DOT to create a clearinghouse to track Transportation Alternatives implementation and projects. We encourage the Federal Highway Administration to assess the impact of biking and walking projects on safety, health, and access. 

A third important clearinghouse to track bicycle and pedestrian data — the National Transportation Enhancements Clearinghouse — was not legislatively mandated. Rather, US DOT funds it through its administration funds. The DOT can continue to fund one or all of the clearinghouses through this method.

question_mark.pngThis is not a part of the Transportation Alternatives Program within MAP-21. We are still waiting to see how the Federal Highway Administration (FHWA) will handle this.

 

Eligibilities

America Bikes' Recommendations

US DOT Guidance

Under eligible Transportation Alternatives activities, define "boulevards" as multi-modal. 

MAP-21 added an eligibility for planning, designing, or constructing boulevards largely in the right-of-way of former interstate system roads or other divided highways.

We recommended that US DOT stipulate that boulevard projects financed through Transportation Alternatives funds should be Complete Streets — that is, they must improve safety and accessibility for all users, including bicyclists, pedestrians, and transit users of all ages and abilities.

question_mark.png

To be determined — not addressed in interim guidance 

Maintain eligibility for  safety and education programs under the new Safe Routes for Non Drivers eligibility. 

In MAP-21, Congress specifically removed eligibility for safety and education programs. We had hoped that under their new eligibility, “Safe Routes for Non-Drivers,” these programs would continue to be eligible for Transportation Alternatives funding.

X_mark.png

Safety and education programs are not eligible for Safe Routes for Non Drivers funding.

Unfortunately, US DOT's guidance makes it clear that Transportation Alternatives projects must focus on infrastructure and construction — not safety and education.

Fortunately, education and safety projects for kindergarten through eight grade remain eligible under Safe Routes to School. 

Adult bicycle and pedestrian education and safety are clearly eligible under the Surface Transportation Program (STP) and the Highway Safety Improvement Program (HSIP). This is yet another incentive to learn how to access these other highway programs for biking and walking projects.

 

Retain 100% federal funding for Safe Routes to School.

The federal Safe Routes to School program has traditionally been one of the rare transportation programs in which 100% of a project’s costs can be paid by federal funds, without a local match.

We recommended that US DOT stipulate that Safe Routes to School projects continue to be 100% federally funded. 

 

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Safe Routes to School is now subject to the 20% local match requirement.

Unfortunately, the guidance indicates that due to its consolidation with Transportation Alternatives, Safe Routes to School projects will now fall under the same match requirements as most other transportation projects—80% federal funding with a 20% local match.

This interpretation is due to the drafting of the bill which inserted the entire SRTS program as an eligibility under Transportation Alternatives.  For more information, keep an eye on the Safe Routes to School National Partnership blog

Make the Safe Routes to School coordinator eligible for Transportation Alternatives funding.

Previous transportation laws fully funded a full-time state Safe Routes to School Coordinator. We had hoped that US DOT would specify that Transportation Alternatives funds may be used to fund this position.  

                                                Check_mark.png

Safe Routes to School coordinators are eligible for Transportation Alternatives funding.   

MAP-21 was written in a way that makes the entire Safe Routes to School (SRTS) program eligible for Transportation Alternatives funding, but not required. This made it difficult for the DOT lawyers to interpret whether requirements under the old SRTS program should be requirements under the new TAP.

Fortunately, though, DOT interpret SRTS coordinators to be eligible under TAP. We believe that fully staffing these programs is critical to successfully implementing them.

 

Highway Safety Improvement Program (HSIP)

America Bikes' Recommendations

US DOT Guidance

When measuring performance, set target reductions by mode and aim to reduce all crashes. 

MAP-21 includes new requirements that states measure roadway safety and performance. We hope that US DOT will encourage states to reduce roadway crashes across all modes — including biking and walking. 

question_mark.png

Performance measures have not yet been addressed in interim guidance. US DOT has 18 months to set performance measures, and the agency has set a goal to release them early. 

The guidance does say that the US DOT can set differing performance measures for urban and rural areas. This is a step in the right direction. Urban areas that have already collected safety data could set performance measures by mode now, while rural areas could start with data collection. 

 

Identify roadway elements and features by mode. 

Under the new law, states will need to identify and fix dangerous areas. We hope that US DOT will encourage states to identify those areas by mode — thus finding out which areas are particularly dangerous for walking, for biking, and for driving. 

question_mark.png

This guidance does not specifically require identifying unsafe areas by mode. Interim guidance does specify that one purpose of HSIP is to "correct or improve a hazardous road location or feature," but does not define those terms.  

Define "location" as "corridor."

The new law requires states to use crash data to identify hazardous locations. We hope that US DOT will specify that "location" refers not only to a single place (i.e., one intersection) but also to an entire stretch of road, or "corridor" (i.e., a street without a sidewalk). 

question_mark.png

This guidance does not define location or feature. 

Allow active transportation advocates to serve as non-motorized state representatives. 

Transportation law now requires states to consult with, among others, "state representatives of non-motorized users." We recommended that US DOT allow biking and walking advocates to serve as such representatives on the state level. 

question_mark.png

To be determined — not addressed in interim guidance

Congestion Mitigation and Air Quality (CMAQ)

America Bikes' Recommendations

US DOT Guidance

Clarify that bike sharing is an eligible project to shift traffic demand. 

The new transportation law specifies that CMAQ funds may now be used for a project or program that "... shifts traffic demand to non-peak hours or other transportation modes ... or otherwise reduces demand for roads through such means as telecommuting, ride-sharing, or car-sharing."

We hope that US DOT further specifies that bike sharing programs are eligible. 

question_mark.png

This is not directly addressed in interim guidance, although US DOT has ruled that bike sharing projects are eligible under CMAQ already. We still would like to see it written into the agency's guidance.

Clarify that education and encouragement programs are eligible projects to shift traffic demand. 

We hope that US DOT will specify that CMAQ funds can finance educational programs and programs that encourage people to walk and bike more. 

question_mark.png

While not directly addressed in this guidance, many states have used CMAQ for education and encouragement programs in the past. We still would like to see it written into US DOT guidance.

Use the TIGER process as a model for cost-effectiveness and health impacts. 

The TIGER program does a great job of evaluating projects' cost-effectiveness and impact on public health. We hope that US DOT will draw on TIGER's example in establishing guidelines for how states should evaluate and assess projects funded under CMAQ. 

question_mark.png

US DOT has 18 months to set performance measures, although they have set a goal to release them early.

How congestion and air quality improvements are measured could affect how states spend their CMAQ funds.

Mandatory Sidepath Law

America Bikes' Recommendations

US DOT Guidance

Before implementing the mandatory sidepath provision, require a joint study by the Department of the Interior and US DOT to understand the policy's impacts.  

MAP-21 included a provision prohibiting bicyclists on certain federally owned roads if there is an adjacent paved path for use by bicycles alongside the road. By moving to ban bicyclists on certain non-highway roads, this clause could set a dangerous precedent for federal bike policy. We recommend that US DOT first require a study to examine the policy's impacts. 

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To be determined — not addressed in interim guidance

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