Adopted Rules Title 43

TITLE 43. TRANSPORTATION

PART 1. TEXAS DEPARTMENT OF TRANSPORTATION

CHAPTER 16. PLANNING AND DEVELOPMENT OF TRANSPORTATION PROJECTS

The Texas Department of Transportation (department) adopts amendments to §16.105 and §16.154, related to the Unified Transportation Program (UTP). The amendment to §16.105 and §16.154 are adopted with changes to the proposed text as published in the October 13, 2023, issue of the Texas Register (48 TexReg 5969) and will be republished.

EXPLANATION OF ADOPTED AMENDMENTS AND NEW SECTION

Amendments to §16.105, Unified Transportation Program (UTP), provide clarification and flexibility. Changes to subsection (e) and (f) provide clarification that major changes and changes to funding allocations in Category 12 Strategic Priority require adoption by the commission. The proposed changes also clarify that the redistribution of carryover does not constitute a major change.

Amendments to §16.154, Transportation Allocation Funding Formulas, provide flexibility and efficiencies in federal fund utilization and management of UTP allocations. Subsection (a)(2) is amended to provide clarity that the intent of the Commission is for Category 2 funding to be allocated to priority projects as determined by the MPO. This subsection (a)(2) is also amended to add "districts" to the Category 2 Metropolitan and Urban Corridor Projects formula allocation and specifies funding is specific to projects within the Metropolitan Planning Organizations' boundaries.

Amendments to §16.154(a)(4) clarify the department will determine the final distribution of the allocation of Category 5 Congestion Mitigation and Air Quality funds between the district and MPO to ensure the timely use of funds and requires the MPO to obtain the district's concurrence on the projects the MPO intends to use Category 5 funds.

Amendments to §16.154(i) refine the definition of carryover for UTP categories and adds references for the adjustments to carryover in Category 5 Congestion Mitigation and Air Quality and Category 2 Metropolitan and Urban Corridor Projects based on new subsections (j) and (k), respectively.

New §16.154(j) prescribes an annual review of carryover in Category 5 Congestion Mitigation and Air Quality. This review allows the department to better manage federal funds, mitigate the risks of a funding lapse or rescission, and addresses potential underutilization of Category 5 funding. Pending the review, if a district or MPO carries over more than 200 percent of its allocation in Category 5 Congestion Mitigation and Air Quality Improvement from the previous year, the department may reduce the district's carryover to 200 percent and assign the excess to projects in other eligible districts or MPOs as authorized by law. The department will report to the commission all proposed redistributions and notify any impacted MPO prior to the department making a redistribution under this subsection.

New §16.154(k) prescribes an annual review of carryover in Category 7 Metropolitan Mobility and Rehabilitation. This review allows the department to better manage federal funds, mitigate the risks of a funding lapse or rescission, and addresses potential underutilization of Category 7 funding. Pending the review, if an MPO carries over more than 200 percent of its allocation in Category 7 Metropolitan Mobility and Rehabilitation (TMA) from the previous year, the department may reduce the district and MPO's Category 2 Metropolitan and Urban Corridor Projects carryover and transfer the excess to the district's Category 11 District Discretionary allocation for use on the district's safety program. The department will report to the commission all proposed redistributions and notify any impacted MPO prior to the department making a redistribution under this subsection.

SUBMITTAL OF COMMENTS

The department posted the rules for comment in the October 13, 2023, issue of the Texas Register. The department received comments through November 13, 2023. In total the department received written comments from five different entities and individuals. The Capital Area Metropolitan Planning Organization provided comments in support of the rules. The El Paso Metropolitan Planning Organization, the Regional Transportation Council for the North Central Texas Council of Governments, the Houston-Galveston Area Council Metropolitan Planning Organization, and the Texas Transit Association each filed comments in opposition to the proposed rules.

The department received three comments concerning §16.105. Those comments requested that the department consider a carryover redistribution to be a major change under §16.105(e), which would require commission adoption. The department chose not to revise the proposed rule addressing major changes. In response to the comments, the department has revised subsections §16.154(j)&(k) to require the department to report to the commission and notify any impacted MPO before making a carryover redistribution from Category 5 Congestion Mitigation and Air Quality or Category 2 Metropolitan and Urban Corridor Projects.

The department received 19 comments concerning §16.154. One comment requested revisions to §16.154(j) to enable the transfer of Category 5 Congestion Mitigation and Air Quality funds to Category 7 Metropolitan Mobility and Rehabilitation to be used in non-attainment areas. The department is committed to maintaining these funds on CMAQ eligible projects and has decided to retain the proposed language.

One comment concerned whether department staff should consult with affected MPOs prior to redistributing a carryover amount. In response to this comment, revisions were made to the proposed subsections §16.154(j)&(k) to require the department to report to the commission and notify any impacted MPO before making a carryover redistribution from Category 5 Congestion Mitigation and Air Quality or Category 2 Metropolitan and Urban Corridor Projects. The department has also implemented a routine review process to coordinate with MPOs regarding funding usage in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation to ensure the MPO is fully informed of their funding requirements.

Three comments raised concerns that the proposed rules do not provide for an appeal process for MPOs subject to carryover redistribution under §16.154(j) and §16.154(k). Revisions were made to the proposed subsections §16.154(j)&(k) to require the department to report to the commission and notify any impacted MPO before making a carryover redistribution from Category 5 Congestion Mitigation and Air Quality or Category 2 Metropolitan and Urban Corridor Projects. The department also has a review process in place to coordinate with MPOs regarding funding usage in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation, and the department believes this process gives MPOs adequate opportunity to provide input prior to the department's decisions about carryover redistribution.

Two comments proposed increasing the carryover threshold under §16.154(j) and §16.154(k) from 200 percent to 300 percent to allow MPOs more flexibility for transportation project planning. The proposed rules, however, do not mandate carryover redistribution above the 200 percent threshold but rather give the department the option to redistribute funds after consultation with the affected MPOs. No related revisions were made to the proposed rules.

One comment requested that the department add a process to the proposed rules to outline how Category 5 Congestion Mitigation and Air Quality carryover amounts would be redistributed equitably to other MPOs. The department intends to redistribute the funds to eligible Category 5 projects in non-attainment areas that can best utilize the funds. No related revisions were made to the proposed rules.

One comment raised concerns about the department's authority to impose limitations on an MPO's use of federal funds allocated through Category 7 Metropolitan Mobility and Rehabilitation, particularly the number of years in which an MPO must utilize the funds. Through the 200% threshold, the department intends to provide a means to initiate a review process before funds would lapse at a federal level. The redistribution of carryover will not shorten the time frame in which federal funds may be used and ensures the federal funds do not lapse. No related revisions were made to the proposed rules.

One comment raised concerns about data quality in the department's project management system, which the department would use to make decisions about carryover redistribution under §16.154(j) and §16.154(k). The department understands the concern and is working to ensure data is current and correct. No related revisions were made to the proposed rules.

One comment requested a carve-out in the proposed rules for MPOs that maintain low carryover amounts in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation. The department believes this is unnecessary, since MPOs that maintain low carryover amounts and do not exceed the 200 percent threshold under §16.154(j) and §16.154(k) would not be affected by the proposed rules.

One comment requested the removal of the reference to department districts from §16.154(a)(2) so that funding in Category 2 Metropolitan and Urban Corridor Projects is only formula allocated to MPOs. The department believes the inclusion of districts in the Category 2 allocation will provide flexibility and ensure coordination between MPOs and districts related to project selection. No related revisions were made to the proposed rules.

One comment requested the removal of the requirement under §16.154(a)(4) that the department districts provide concurrence on MPO-selected projects in Category 5 Congestion Mitigation and Air Quality. The department believes the inclusion of districts in the Category 5 project selection process will ensure the coordination between MPOs and districts to improve project delivery and efficient utilization of funds. No related revisions were made to the proposed rules.

One comment requested that the department define "encumbered" and "unencumbered" in §16.154(i) to avoid confusion about how carryover amounts are determined. The department agrees this clarification is beneficial and has revised the proposed rules to change the terminology to "committed" and "uncommitted" and include a definition of "committed" under §16.154(i).

One comment requested that the proposed rules require the department and affected MPOs to concur on the amount of carryover each MPO accumulates annually in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation. The department believes the revisions within §16.154(i) to clarify when funds are committed clarify when funds would be subjected to carryover redistribution. Additionally, the department has a review process in place to coordinate with MPOs about funding usage in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation. The department believes this process gives MPOs adequate opportunity to provide input prior to the department's decisions about carryover redistribution. No other revisions were made to the proposed rules.

One comment requested, to allow for planning larger projects, that the proposed rules allow MPOs to seek commission approval to accumulate over a period of years a carryover amount that would be excluded from the carryover redistribution. The department believes this is unnecessary since the proposed rules do not mandate carryover redistribution but rather give the department the option to redistribute funds in the event an MPO maintains an excessive carryover balance. This flexibility means the department may allow the accumulation of carryover amounts greater than the 200 percent threshold if it is warranted. No related revisions were made to the proposed rules.

One comment requested that the department implement a process for MPOs and the department to evaluate projects with potential development delays that may in turn cause increased carryover amounts in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation. Additionally, the comment requested improved procedures to avoid project development delays related to department oversight. The department acknowledges the needs presented by the comment and is developing solutions to be coordinated with affected MPOs. No related revisions were made to the proposed rules.

One comment stated that the department's determination that the proposed rules would not impose a cost on a regulated person and as a result Government Code §2001.0045 does not apply to this rule making was incorrect. The commentor argues that ensuring they do not exceed the carryover threshold amounts will require additional staff to manage their budget. While the department applauds the MPO's plan to proactively manage their budget to ensure timely use of the funds, the department's rules do not directly impose any particular cost upon a regulated entity and §2001.0045 does not apply. No related revisions were made to the proposed rules.

One comment described actions taken by an affected MPO to proactively reduce its carryover amounts in Category 5 Congestion Mitigation and Air Quality and Category 7 Metropolitan Mobility and Rehabilitation without the need for the proposed rules. The department acknowledges and appreciates the efforts of the individual MPO but believes the proposed rules are necessary to optimize utilization of those funding categories statewide. No related revisions were made to the proposed rules.

SUBCHAPTER C. TRANSPORTATION PROGRAMS

43 TAC §16.105

STATUTORY AUTHORITY

The amendments are adopted under Transportation Code, §201.101, which provides the Texas Transportation Commission with the authority to establish rules for the conduct of the work of the department, and more specifically, Transportation Code, §201.991, which requires the commission to adopt rules related to the department's unified transportation program and §201.996, which requires the commission to adopt rules that specify the formulas for allocating funds to districts and metropolitan planning organizations.

CROSS REFERENCE TO STATUTE

Transportation Code, §201.991 and §201.996.

§16.105.Unified Transportation Program (UTP).

(a) General. The department will develop a unified transportation program (UTP) that covers a period of ten years to guide the development and authorize construction and maintenance of transportation projects and projects involving aviation, public transportation, and the state's waterways and coastal waters. In developing the UTP, the department will collaborate with local transportation entities and public transportation operators as defined by 23 C.F.R. Part 450.

(b) Requirements. The UTP will:

(1) be financially constrained for planning and development purposes based on the planning cash flow forecast prepared and published in accordance with §16.152(a) of this subchapter (relating to Cash Flow Forecasts);

(2) list estimated funding levels and the allocation of funds to each district, metropolitan planning organization (MPO), and other authorized entity for each year in accordance with Subchapter D of this chapter (relating to Transportation Funding);

(3) list all projects and programs that the department intends to develop, or on which the department intends to initiate construction or maintenance, during the UTP period, and the applicable funding category to which a project or program is assigned, after consideration of the:

(A) statewide long-range transportation plan (SLRTP);

(B) metropolitan transportation plans (MTP);

(D) MPO annual reevaluations of project selection in MTPs and TIPs, if any, in accordance with subsection (c) of this section;

(E) statewide transportation improvement program (STIP);

(F) recommendations of rural planning organizations (RPO) as provided in this subchapter; and

(G) list of major transportation projects in accordance with §16.106 of this subchapter (relating to Major Transportation Projects); and

(4) designate the priority ranking within a program funding category of each listed project in accordance with subsection (d)(2) of this section.

(c) MPO annual reevaluation of project selection. An MPO may annually reevaluate the status of project priorities and selection in its approved metropolitan transportation plan (MTP) and transportation improvement program (TIP) and provide a report of any changes to the department at the times and in the manner and format established by the department. The reevaluation must be consistent with criteria applicable to development of the MTP and TIP in accordance with federal requirements.

(d) Project selection.

(1) The commission will consider the following criteria for project selection in the UTP as applicable to the program funding categories described in §16.153 of this chapter (relating to Funding Categories):

(A) the potential of the project to meet transportation goals for the state, including efforts to:

(i) maintain a safe transportation system for all transportation users;

(ii) optimize system performance by mitigating congestion, enhancing connectivity and mobility, improving the reliability of the system, facilitating the movement of freight and international trade, and fostering economic competitiveness through infrastructure investments;

(iii) maintain and preserve system infrastructure; and

(iv) accomplish any additional transportation goals for the state identified in the statewide long-range transportation plans as provided in §16.54 of this chapter (relating to Statewide Long-Range Transportation Plan (SLRTP));

(B) the potential of the project to assist the department in attainment of transportation system strategies, the measurable targets for the transportation goals identified in subparagraph (A) of this paragraph, and other related performance measures; and

(2) The commission may also consider the potential for project delivery based on other factors such as funding availability and project readiness, after consideration of the criteria described in paragraph (1) of this subsection.

(3) With respect to Category 12 Strategic Priority, the commission may also consider if the district and MPO will commit funding from other categories to the project or as a condition for project selection, may require the district and MPO to commit funds from other categories to the project.

(4) The department will coordinate project selection criteria relating to the transportation goals identified in paragraph(1)(A) of this subsection with the MPOs for the purpose of achieving consistent, common goals, particularly with respect to mobility projects using a mix of several funding sources.

(5) The department will consider performance metrics and measures to evaluate and rank the priority of each project listed in the UTP based on the transportation needs for the state and the goals identified in paragraph (1)(A) of this subsection. A project will be ranked within its applicable program funding category, using a performance-based scoring system, and classified as tier one, tier two, or tier three for ranking purposes. The scoring system will be used for prioritizing projects for which financial assistance is sought from the commission and must account for the diverse needs of the state so as to fairly allocate funding to all regions of the state. Major transportation projects will have a tier one classification and be designated as the highest priority projects within an applicable funding category. A project that is designated for development or construction in accordance with the mandates of state or federal law or specific requirements contained in other chapters of this title may be prioritized in a funding category as a designated project in lieu of a tier one, tier two, or tier three ranking.

(6) The commission will determine and approve the final selection of projects and programs to be included in the UTP, except for the selection of federally funded projects by an MPO serving in an area designated as a transportation management area (TMA) as provided in §16.101(n) of this subchapter (relating to Transportation Improvement Program (TIP)). A federally funded project selected by an MPO designated as a TMA will be approved by the commission, subject to:

(A) satisfaction of the project selection criteria in paragraph (1) of this subsection;

(B) compliance with federal law; and

(e) Approval of unified transportation program (UTP). Not later than August 31 of each year, the commission will adopt the unified transportation program for the next fiscal year. The commission may update the UTP at any time. A change in the UTP to project funding allocations in Category 12 Strategic Priority as described in §16.153(a) of this subchapter (relating to Funding Categories) or a major change to one or more funding allocations or project listings in the most recent UTP must be adopted by the commission. For the purpose of updating the UTP, the term "major change" refers to the authorization of new projects or the revision of project funding allocations which exceed 10 percent of the project cost or $500,000, whichever is greater, occurring in non-allocation program categories, excluding revisions to local funding contributions and projects designated under miscellaneous state and federal programs. The redistribution of a carryover under §16.154(i) of this subchapter (relating to Transportation Allocation Funding Formulas) does not constitute a major change, regardless of the amount of the redistribution.

(f) Administrative revisions. The UTP may be administratively revised at any time if the revision does not constitute a major change as described in subsection (e) of this section, does not change project funding allocations in Category 12 Strategic Priority as described in subsection (e), or does not affect the total amount of funding allocated to a district for specific corridors in Category 4 Statewide Connectivity Corridor Projects as described in §16.153(a) of this subchapter (relating to Funding Categories).

(g) Public involvement for the unified transportation program.

(1) The department will seek to effectively engage the general public and stakeholders in development of the UTP and any updates to the program.

(2) The department will hold at least one statewide public meeting to present the draft UTP as early as the department determines is feasible to assure public input into the program prior to its final adoption. The department will also hold at least one statewide public meeting to present each proposed update to the program. The department will publish notice of each public meeting as appropriate and use communications strategies to maximize attendance at the meeting. The department may conduct a public meeting by video-teleconference or other electronic means that provide for direct communication among the participants.

(3) The department will report its progress on the program and provide an opportunity for a free exchange of ideas, views, and concerns relating to project selection, funding categories, level of funding in each category, the allocation of funds for each year of the program, and the relative importance of the various selection criteria.

(4) The department will hold at least one statewide hearing on its project selection process including the UTP's funding categories, the level of funding in each category, the allocation of funds for each year of the program, and the relative importance of the various selection criteria prior to:

(A) final adoption of the UTP and any updates; and

(B) approval of any adjustments to the program resulting from changes to the allocation of funds under §16.160 of this chapter (relating to Funding Allocation Adjustments).

(5) The department will publish a notice of the applicable hearing in the Texas Register a minimum of 15 days prior to its being held and will inform the public where to send any written comments. The department will accept written public comments for a period of at least 30 days after the date the notice appears in the Texas Register. The department may also accept public comments by other means, as specified in the notice. A copy of the proposed project selection process, the UTP, and any adjustments to the program, as applicable, will be available for review at the time the notice of hearing is published on the department website and, on request, will be available at district offices and at the department's Transportation Planning and Programming office in Austin.

(6) The department will present information regarding the development of the UTP and any updates to the commission not later than the month prior to final adoption of the UTP and any updates.

(h) Publication. The department will publish the entire approved unified transportation program, updates, adjustments, and administrative revisions together with any summary documents highlighting project benchmarks, priorities, and forecasts on the department's website. The documents will also be available for review, on request, at district offices and at the department's Transportation Planning and Programming Division office in Austin.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on January 17, 2024.

TRD-202400156

Becky Blewett

Deputy General Counsel

Texas Department of Transportation

Effective date: February 6, 2024

Proposal publication date: October 13, 2023

For further information, please call: (512) 463-3164

SUBCHAPTER D. TRANSPORTATION FUNDING

43 TAC §16.154

STATUTORY AUTHORITY

§16.154.Transportation Allocation Funding Formulas.

(a) Formula allocations. The commission will, subject to the mandates of state and federal law, allocate funds from program funding Categories 1, 2, 4, 5, 7, 9, and 11, as described in §16.153 of this subchapter (relating to Funding Categories), to the districts and metropolitan planning organizations (MPO) as follows:

(1) Category 1 Preventive Maintenance and Rehabilitation - will be allocated to all districts as an allocation program according to the following formulas:

(A) Preventive maintenance.

(i) Ninety-eight percent for roadway maintenance with 65 percent based on on-system lane miles, and 33 percent based on the pavement distress score Pace factor; and

(ii) Two percent for bridge maintenance based on square footage of on-system span bridge deck area;

(B) Rehabilitation. Thirty-two- and one-half percent based on three-year average lane miles of pavement distress scores less than 70, 20 percent based on on-system vehicle miles traveled per lane mile, 32.5 percent based on equivalent single axle load miles on-system, and 15 percent based on the pavement distress score Pace factor;

(2) Category 2 Metropolitan and Urban Corridor Projects - It is the commission's intent that Category 2 funds be used efficiently on priority projects as determined by the MPOs. Category 2 funds will be allocated to districts and MPOs for specific projects within the MPOs' boundaries in the following manner:

(A) 87 percent to MPOs operating in areas that are transportation management areas, according to the following formula: 30 percent based on total vehicle miles traveled on and off the state highway system, 17 percent based on estimated population within the boundaries of the metropolitan planning area using data derived from the most recent census provided by the U.S. Bureau of the Census (census population), 10 percent based on lane miles on-system, 14 percent based on truck vehicle miles traveled on-system, 7 percent based on percentage of census population below the federal poverty level, 15 percent based on congestion, and 7 percent based on fatal and incapacitating vehicle crashes;

(B) 13 percent to MPOs operating in areas that are not transportation management areas, according to the following formula: 20 percent based on total vehicle miles traveled on and off the state highway system, 25 percent based on estimated population within the boundaries of the metropolitan planning area using data derived from the most recent census provided by the U.S. Bureau of the Census (census population), 8 percent based on lane miles on-system, 15 percent based on truck vehicle miles traveled on-system, 4 percent based on percentage of census population below the federal poverty level, 8 percent based on centerline miles on-system, 10 percent based on congestion, and 10 percent based on fatal and incapacitating vehicle crashes;

(3) Category 4 Statewide Connectivity Corridor Projects - will be allocated to districts as an allocation program for specific corridors selected by the commission based on engineering analysis of three corridor types and, if applicable to the particular corridor type, considering the formula specified in subsection (a)(2) of this section:

(A) Mobility corridors - congestion considerations throughout the state;

(B) Connectivity corridors - two-lane roadways requiring upgrade to four-lane divided roadways to connect the urban areas of the state; and

(4) Category 5 Congestion Mitigation and Air Quality Improvement - will be allocated to districts and MPOs as an allocation program for projects in a nonattainment area population weighted by ozone and carbon monoxide pollutant severity. The department will determine the final distribution of the allocation between the district and MPO to ensure timely use of funds. Before the MPO's use of the Category 5 funds, the MPO must obtain the district's concurrence on the project for which the funds are to be used;

(5) Category 7 Metropolitan Mobility and Rehabilitation (TMA) - will be allocated to MPOs operating in areas that are transportation management areas as an allocation program based on the applicable federal formula;

(6) Category 9 Transportation Alternatives - a portion of the funds in this category will be allocated to MPOs serving urbanized areas with populations over 200,000 as an allocation program based on the areas' relative share of population, unless FHWA approves a joint request from the department and the relevant MPOs to use other factors in determining the allocation; and

(7) Category 11 District Discretionary - will be allocated to all districts as an allocation program based on state legislative mandates, but if there is no mandate or the amount of available funding in this category exceeds the minimum required by a mandate, the funding allocation for this category or the excess funding, as applicable, will be allocated according to the following formula: 70 percent based on annual on-system vehicle miles traveled, 20 percent based on annual on-system lane miles, and 10 percent based on annual on-system truck vehicle miles traveled. The commission may supplement the funds allocated to individual districts on a case-by-case basis to cover project cost overruns.

(b) Pace factor calculation. For purposes of subsection (a)(1) of this section, the Pace factor is a calculation used to adjust funding among districts according to increases or decreases in a district's need to improve its pavement distress scores. It will slow the rate of improvement for districts with the highest condition scores and accelerate the rate of improvement for districts with the lowest condition scores. The Pace factor is calculated by:

(1) determining the district with the highest distress score;

(2) determining the deviation of a district's distress score from the highest score;

(3) totaling the deviations for all districts as determined by paragraph (2) of this subsection.

(c) Non-formula allocations. The commission, subject to the mandates of state and federal law and specific requirements contained in other chapters of this title for programs and projects described in subsection (a) of this section, will determine the amount of funding to be allocated to a district, metropolitan planning organization, political subdivision, governmental agency, local governmental body, recipient of a governmental transportation grant, or other eligible entity from each of the following program funding categories described in §16.153 of this subchapter:

(1) Category 3 Non-Traditionally Funded Transportation Projects for specific projects;

(2) Category 6 Structures Replacement and Rehabilitation as an allocation program;

(3) Category 8 Safety Projects generally funded as an allocation program with some specific projects designated under the Safety Bond Program;

(4) Category 9 Transportation Alternatives - of the remaining funds in this category, a portion will be allocated to certain areas of the state, for specific projects, based on the areas' relative share of the population, and a portion may be allocated in any area of the state for specific projects or transferred to other eligible federal programs, as authorized by law;

(5) Category 10 Supplemental Transportation Projects generally funded as an allocation program with some specific projects designated under miscellaneous federal programs;

(6) Category 12 Strategic Priority for specific projects;

(7) Aviation Capital Improvement Program;

(8) Public transportation;

(9) Rail; and

(10) State waterways and coastal waters.

(d) Allocation program. For the purposes of this chapter, the term "allocation program" refers to a type of program funding category identified in the unified transportation program for which the responsibility for selecting projects and managing the allocation of funds has been delegated to department districts, selected administrative offices of the department, and MPOs. Within the applicable program funding category, each district, selected administrative office, or MPO is allocated a funding amount and projects can be selected, developed, and, subject to the base cash flow forecast prepared and published in accordance with §16.152(b) of this subchapter (relating to Cash Flow Forecasts), let to contract with the cost of each project to be deducted from the allocated funds available for that category.

(e) Listing of projects. The department will list the projects being funded from funds allocated under subsections (a)(2) and (3) and (c)(6) of this section (categories 2, 4, and 12, respectively) that the department intends to develop and let during the ten-year unified transportation program (UTP) under §16.105 of this chapter (relating to Unified Transportation Program (UTP)), and reference for each listed project the program funding category to which it is assigned. If a program funding category is an allocation program, the listing is for informational purposes only and contains those projects reasonably expected at the time the UTP is adopted or updated to be selected for development or letting during the applicable period. For the purpose of listing projects in the UTP, "project" means a connectivity or new capacity roadway project. The term does not include a safety project, bridge project, federal discretionary project, maintenance project, preservation project, transportation alternatives project, or locally funded project.

(f) Limitation on distribution. In distributing funds to the districts, metropolitan planning organizations, and other entities described in subsections (a) and (c) of this section, the department may not exceed the planning cash flow forecast prepared and published in accordance with §16.152(a) of this subchapter (relating to Cash Flow Forecasts). In developing and distributing funds for purposes of letting, the department may not exceed the base cash flow forecast prepared and published in accordance with §16.152(b) of this subchapter.

(g) Formula revisions. The commission will review and, if determined appropriate, revise both the formulas and criteria for allocation of funds under subsections (a) - (c) of this section at least as frequently as every four years.

(h) Supplemental allocations. The commission may supplement the funds allocated to individual districts under subsections (a)(1) and (7) of this section in response to special initiatives, safety issues, or unforeseen environmental factors. Supplemental funding under this subsection is not required to be allocated proportionately among the districts and is not required to be allocated according to the formulas specified in subsections (a)(1) and (7) of this section. In determining whether to allocate supplemental funds to a particular district, the commission may consider safety issues, traffic volumes, pavement widths, pavement conditions, oil and gas production, well completion, or any other relevant factors.

(i) Carryover. If at the beginning of a fiscal year an amount allocated in a category to an entity in the preceding fiscal year is not committed during the preceding fiscal year, that uncommitted amount plus any uncommitted amount carried over to the preceding fiscal year carries over in that category to that entity for use in the fiscal year. As used in this section, carryover refers to the amount carried over from one fiscal year to the next fiscal year and is not considered as an allocation for the fiscal year to which it is carried over. For the purpose of this section, an amount of funds is considered to be committed if the transportation project with which the amount is programmed is in the department's project management system and is progressing towards letting. The department may adjust the amount of the carryover, subject to subsections (j) and (k) of this section.

(j) Carryover in Category 5 Congestion Mitigation and Air Quality. To ensure that the state does not lose the ability to commit allocated funds and other federal funds, the department annually will review the use and programming of Category 5 funds. If at the beginning of a fiscal year a district and MPO has a carryover equal to more than 200 percent of the previous fiscal year's Category 5 allocation, the department may decrease the amount of the Category 5 carryover to an amount that is not less than 200 percent of the previous fiscal year's Category 5 allocation. The department may redistribute any amount of the reduction to another district and MPO but only for an eligible project in a non-attainment area, as authorized by law. The department will report to the commission all proposed redistributions and notify any impacted MPO before the department makes a redistribution under this subsection.

(k) Carryover in Category 2 Metropolitan and Urban Corridor Projects. To ensure that the state does not lose the ability to commit allocated funds and other federal funds, the department annually will review the use and programming of Category 7 funds. If at the beginning of a fiscal year an MPO has a carryover equal to more than 200 percent of the previous fiscal year's Category 7 allocation, the department may decrease the amount of the Category 2 carryover, if any, by an amount equal to the difference between the amount of the Category 7 carryover and 200 percent of the previous fiscal year's Category 7 allocation. The department may redistribute that amount from Category 2 to the corresponding district's Category 11 District Discretionary allocation for use on the district's safety program. The department will report to the commission all proposed redistributions and notify any impacted MPO before the department makes a redistribution under this subsection.