Request for Approval of Exceptions

	Memorandum
U.S. Department of Transportation
Federal Highway Administration

This memorandum requests that you approve an exception in the law that would allow States more flexibility in determining where they can use their Transportation Enhancement (TE) funds. A general provision of the Surface Transportation Program (STP) law restricts the classes of highway projects for which STP funds may be used, unless the Secretary approves an exception. Because TE projects are part of the STP, this general provision has the effect of restricting the use of TE funds. In many cases, these restrictions make no sense in light of the TE program mandate and the restriction undermines the effectiveness of the TE program. This memorandum requests that you except all TEs from this restriction.

The STP was established by the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) and continued by the Transportation Equity Act for the 21" Century (TEA-21). The STP funds are available for 14 categories of eligible projects, 23 U.S.C. § 133(b). Section 133(c) includes the general limitation that STP projects not be funded on "roads functionally classified as local or rural minor collectors, unless such roads are on a Federal-aid highway system on January 1, 199 1, and except as approved by the Secretary (emphasis added).

One of the eligible categories is TE projects, defined by 23 U.S.C. § 101(35). The TE projects include provision of facilities for pedestrians and bicycles; landscaping and other scenic beautification; historic preservation; preservation of abandoned railway corridors; and environmental mitigation to address water pollution due to highway runoff. The definition of TE contains the requirement that each activity "relate[s] to surface transportation."

Because TEs are part of the STP, the general location restriction of § 133(c) applies to them; TE projects cannot be located on local or rural minor collector roads. Given the nature of many of the 12 categories of TEs, however, it is clear that the location limitation of § 133(c) cannot apply to them. Provision of safety and educational activities for pedestrians and bicyclists, preservation of abandoned railway corridors, or archaeological planning and research are not tied to a location on a highway. Even for TE projects which could be connected to a particular highway, such as historic preservation and scenic enhancements, the location restriction of § 133(c) is often at odds with what the TE program seeks to accomplish. By granting a general waiver of TE projects, as permitted by § 133(c), the administration of TE projects would be greatly simplified and made consistent with the apparent purpose of the statute. The TE activities will still have to relate to surface transportation. This definitional provision cannot be waived and provides adequate protection against potentially inappropriate expansion of the TE program.

RECOMMENDATION: I recommend that you approve the TE exception from the location of project limitation of § 133(c) of Title 23 of the United States Code, thereby giving the States increased flexibility in determining where their TE projects will be constructed.

APPROVED: X
DISAPPROVED:
DATE: 10-25-99