National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program, 5886-5970 [2017-00550]

Download as PDF 5886 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 490 [Docket No. FHWA–2013–0053] RIN 2125–AF53 National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program SUPPLEMENTARY INFORMATION Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: The purpose of this final rule is to establish measures for State departments of transportation (State DOT) to use to carry out the National Highway Performance Program (NHPP) and to assess the condition of the following: Pavements on the National Highway System (NHS) (excluding the Interstate System), bridges carrying the NHS which includes on- and off-ramps connected to the NHS, and pavements on the Interstate System. The NHPP is a core Federal-aid highway program that provides support for the condition and performance of the NHS and the construction of new facilities on the NHS. The NHPP also ensures that investments of Federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established in a State’s asset management plan for the NHS. This final rule establishes regulations for the new performance aspects of the NHPP that address measures, targets, and reporting. The FHWA is in the process of creating a new public Web site to help communicate the national performance story. The Web site will likely include infographics, tables, charts, and descriptions of the performance data that State DOTs report to FHWA. The FHWA issues this final rule based on sec. 1203 of MAP–21, which identifies national transportation goals and requires the Secretary to promulgate rules to establish performance measures and standards in specified Federal-aid highway program areas. mstockstill on DSK3G9T082PROD with RULES5 SUMMARY: This final rule is effective February 17, 2017. The incorporation by reference of certain publications listed in the regulation is approved by the Director of the Federal Register as of February 17, 2017. DATES: VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 For technical information: Francine Shaw Whitson, Office of Infrastructure, 202– 366–8028. For legal information: Anne Christenson, Office of Chief Counsel, 202–366–0740, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Electronic Access and Filing The notice of proposed rulemaking (NPRM) was published at 80 FR 326 on January 5, 2015, and all comments received may be viewed online at http:// www.regulations.gov. Electronic retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register’s Web site at http://www.orf.gov and the Government Printing Office’s Web site at http:// www.gpo.gov. Table of Contents for Supplementary Information I. Executive Summary A. Incorporating the FAST Act B. Purpose of the Regulatory Action C. Summary of Major Provisions of the Regulatory Action in Question D. Costs and Benefits II. Acronyms and Abbreviations III. Background IV. Summary of the NPRM V. Discussion of Comments A. Summary of Comments B. Discussion of Public Comments VI. Section-by-Section Discussion of the General Information and National Performance Management Measures for the National Highway Performance Program: Pavement and Bridge A. Subpart A—General Information B. Subpart C—National Performance Management Measures for the NHPP Pavement Performance Measures C. Subpart D—National Performance Management Measures for the NHPP Bridge Performance Measures VII. Rulemaking Analyses and Notices I. Executive Summary A. Incorporating the FAST Act On December 4, 2015, the President signed the Fixing America’s Surface Transportation Act (FAST) Act (Pub. L. 114–94) into law. For the most part, the FAST Act is consistent with the new performance management elements introduced by MAP–21. For convenience and accurate historical context, this rule will refer to MAP–21 throughout the preamble to signify the fundamental changes MAP–21 made to States’ authorities and responsibilities PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 for overseeing the implementation of performance management. For this final rule, there are two areas where the FAST Act made changes to performance management requirements. The first change is sec. 119(e)(7), title 23, United States Code (23 U.S.C. 119(e)(7)), which relates to the requirement for a significant progress determination for NHPP targets. The FAST Act amended this provision to remove the term ‘‘2 consecutive reports.’’ The FHWA has incorporated this change into the final rule by removing the term ‘‘2 consecutive determinations,’’ which was proposed in section 490.109(f) of the NPRM, published January 5, 2015 (80 FR 326). In section 490.109(f) of the NPRM, FHWA proposed that if FHWA determines that a State DOT has not made significant progress toward achieving NHPP targets in two consecutive FHWA determinations, then that State DOT would document the actions it will take to achieve the targets in its next Biennial Performance Report. The FAST Act changed this requirement. Due to the FAST Act, the final rule requires State DOTs to take action when they do not make significant progress for each biennial determination (instead of 2 consecutive biennial determinations) made by FHWA. The second change made by the FAST Act is removal of the term ‘‘2 consecutive reports’’ in 23 U.S.C. 119(f)(1)(A), which relates to triggering the penalty for Interstate pavement condition that has fallen below the minimum condition level established under this rule. In section 490.317 of the NPRM, FHWA proposed that it would determine annually whether or not a State DOT’s Interstate pavement condition is below the minimum condition level. If FHWA determines that a State DOT’s Interstate pavement condition is below the minimum condition level for the ‘‘most recent 2 years,’’ then that State DOT would be subject to the penalty under 23 U.S.C. 119(f)(1)(A). A description and example application on this penalty is available for review on the docket. Due to the FAST Act, the final rule subjects State DOTs to the penalty under 23 U.S.C. 119(f)(1)(A) if FHWA determines that its Interstate pavement condition has fallen below the minimum condition level for the most recent year (instead of most recent 2 years). B. Purpose of the Regulatory Action The MAP–21 (Pub. L. 112–141) transforms the Federal-aid highway program by establishing new requirements for performance E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations management to ensure the most efficient investment of Federal transportation funds. Performance management increases the accountability and transparency of the Federal-aid highway program and provides a framework to support improved investment decisionmaking through a focus on performance outcomes for key national transportation goals. As part of performance management, recipients of Federal-aid highway funds will make transportation investments to achieve performance targets that make progress toward national goals. The national performance goal for bridge and pavement condition is to maintain the condition of highway infrastructure assets in a state of good repair. The purpose of this final rule is to implement MAP–21 and FAST Act performance management requirements. Prior to MAP–21, there were no explicit requirements for State DOTs to demonstrate how their transportation program supported national performance outcomes. State DOTs were not required to measure condition or performance, establish targets, assess progress toward targets, or report on condition or performance in a nationally consistent manner that FHWA could use to assess the entire system. Without State DOTs reporting on the above factors, it is difficult for FHWA to look at the effectiveness of the Federal-aid highway program as a means to address surface transportation performance at a national level. This final rule is one of several rulemakings that DOT has or is conducting to implement MAP–21’s new performance management framework. The collective rulemakings will establish the regulations needed to more effectively evaluate and report on surface transportation performance across the Nation. This final rule will: • Require State DOTs to maintain their bridges and pavements at or above a minimum condition level; • Provide for greater consistency in the reporting of condition and performance; • Require the establishment of targets that can be aggregated at the national level; • Improve transparency by requiring consistent reporting on progress through a public reporting system; • Require State DOTs to make significant progress toward meeting their targets; and • Establish requirements for State DOTs that have not met or made significant progress toward meeting their targets. State DOTs and metropolitan planning organizations (MPO) will be VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 expected to use the information and data generated as a result of the new regulations to inform their transportation planning and programming decisions. The new performance aspects of the Federal-aid highway program that result from this rule will provide FHWA the ability to better communicate a national performance story and to more reliably assess the impacts of Federal funding investments. The FHWA is in the process of creating a new public Web site to help communicate the national performance story. The Web site will likely include infographics, tables, charts, and descriptions of the performance data that State DOTs would be reporting to FHWA. The FHWA is required to establish performance measures to assess performance in 12 areas 1 generalized as follows: (1) Serious injuries per vehicle miles traveled (VMT); (2) fatalities per VMT; (3) number of serious injuries; (4) number of fatalities; (5) pavement condition on the Interstate System; (6) pavement condition on the nonInterstate NHS; (7) bridge condition on the NHS; (8) traffic congestion; (9) onroad mobile source emissions; (10) freight movement on the Interstate System; (11) performance of the Interstate System; and (12) performance of the non-Interstate NHS. This rulemaking is the second of three that establish performance measures for State DOTs and MPOs to use to carry out Federal-aid highway programs and to assess performance in each of these 12 areas. This final rule establishes national measures for pavement condition on the Interstate System and non-Interstate NHS and bridge condition on the NHS (numbers 5, 6 and 7 in the above list). Other rulemakings have or will establish national measures for the remaining areas. State DOTs will be required to establish performance targets and assess performance in 12 areas 2 established by MAP–21, and FHWA will assess 3 their progress toward meeting targets in 10 of these areas 4 in accordance with MAP– 21 and the FAST Act. State DOTs that 1 These areas are listed within 23 U.S.C. 150(c), which requires the Secretary to establish measures to assess performance or condition. 2 These areas are listed within 23 U.S.C. 150(c), which requires the Secretary to establish measures to assess performance or condition. 3 23 U.S.C. 148(i) and 23 U.S.C. 119(e)(7). 4 Serious injuries per vehicle VMT; fatalities per VMT; number of serious injuries; number of fatalities; pavement condition on the Interstate System; pavement condition on the non-Interstate NHS; bridge condition on the NHS; performance of the Interstate System; and performance of the nonInterstate NHS under MAP–21. Freight movement on the Interstate System under the FAST Act. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 5887 fail to meet or make significant progress toward meeting pavement and bridge condition performance targets in a biennial performance reporting period will be required to document the actions they will undertake to achieve their targets in their next biennial performance report. This final rule establishes performance measures to assess pavement and bridge conditions on the Interstate System and non-Interstate NHS for the purpose of carrying out the NHPP. The four measures to assess pavement condition are: (1) Percentage of pavements on the Interstate System in Good condition; (2) percentage of pavements on the Interstate System in Poor condition; (3) percentage of pavements on the NHS (excluding the Interstate System) in Good condition; and (4) percentage of pavements on the NHS (excluding the Interstate System) in Poor condition. The two performance measures for assessing bridge condition are: (1) Percentage of NHS bridges classified as in Good condition; and (2) percentage of NHS bridges classified as in Poor condition. This final rule also establishes the minimum level for pavement condition for the Interstate System as required by the statute and incorporates the minimum condition level for bridges carrying the NHS which includes onand off-ramps connected to the NHS as established by the statute. In addition, this final rule establishes the process for State DOTs and MPOs to use to establish and report targets and the process that FHWA will use to assess the progress State DOTs have made in achieving targets. Lastly, FHWA recognizes that implementation of the performance management requirements in this final rule will evolve with time for a variety of reasons such as: The introduction of new technologies that allow for the collection of more nationally consistent and/or reliable performance data; shifts in national priorities for the focus of a goal area; new federal requirements; or the emergence of improved approaches to measure condition/performance in supporting investment decisions and national goals. The FHWA is committed to performing a retrospective review of this rule after the first performance period, to assess the effectiveness of the requirements to identify any necessary changes to better support investment decisions through performance-based planning and programming and to ensure the most efficient investment of Federal transportation funds. In implementation of this rule, FHWA realizes that there are multiple ways that State DOTs and MPOs can make E:\FR\FM\18JAR5.SGM 18JAR5 5888 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations decisions to achieve more efficient and cost effective investments; as part of a retrospective review, FHWA will also utilize implementation surveys to identify how agencies complying with the rule are developing their programs and selecting their projects to achieve targets. mstockstill on DSK3G9T082PROD with RULES5 C. Summary of the Major Provisions of the Regulatory Action in Question This final rule retains the majority of the major provisions of the NPRM but makes significant changes by: • Originally anticipating the rule’s effective date as fall 2016, FHWA has now postponed the Baseline Performance Period Report and subsequent biennial reports by 2 years relative to those described in the NPRM (i.e., from 2016 to 2018); • Removing the requirements for State DOTs to declare and describe NHS limits in their Baseline Performance Period Report; • Adding guidance for MPO target establishment to address situations where metropolitan planning areas extend across multiple States; • Removing the requirement to use the Metropolitan Planning Agreement as the means to document how MPOs report their established and adjusted targets to their respective State DOTs; • Clarifying the list of extenuating circumstances that may prevent a State DOT from making significant progress to include the sudden discontinuation of federally furnished data due to lack of Federal funding; • Removing references to provisional American Association of State Highway and Transportation Officials (AASHTO) standards to ensure consistency in reporting year over year (including references to PP68–14, PP69–14, and PP70–14); • Providing an option for State DOTs to report Present Serviceability Rating (PSR) for highways with a posted speed limit under 40 miles per hour (MPH) in place of International Roughness Index (IRI), cracking, rutting, and faulting; • Changing the threshold for pavements with Poor IRI condition to greater than 170 inches per mile for all areas, rather than the NPRM’s proposed threshold of 220 inches per mile for urbanized areas with a population greater than 1 million people; • Changing the threshold for Poor crack rating for asphalt pavement sections from greater than 10 percent to greater than 20 percent and the threshold for Poor crack rating for jointed concrete pavement sections from greater than 10 percent to greater than 15 percent; VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 • Changing the threshold for Good faulting rating for jointed concrete pavement sections from less than 0.05 inch to less than 0.1 inch; • Revising the network coverage of data reporting requirements for Interstate pavement condition from both directions of mainline highways to single, inventory direction of mainline highways; • Changing the approach in dealing with missing, unresolved, or invalid pavement data; Æ Removing the proposed language on rating sections with missing, unresolved, or invalid data as Poor condition; and Æ Revising the requirements for reporting on sections with missing, unresolved, or invalid data. In the final rule, no more than 5 percent of the network is to be represented with missing, unresolved, or invalid data due to construction, closure, disaster, flood, deterioration or any other reasons; • Revising the equation for calculating the percentage of missing, unresolved, or invalid data so that it is based on total lane-miles of the system excluding bridges and unpaved and ‘‘other’’ surface types instead of total lane-miles of the system; • Adjusting the minimum condition standards for pavement condition on the Interstate highways for Alaska because Highway Performance Monitoring System (HPMS) data indicated that a regional adjustment was needed for this State; • Revising the definition and computation for the classification of structurally deficient; and • Providing a transition period for implementing the revised definition and computation for the classification of structurally deficient, and using the new calculations for deck area of culverts and border bridges. The FHWA updated these and other elements in this final rule based on the review and analysis of comments received. For additional detail on all the changes FHWA made in the final rule, please refer to Section VI of this document. The following is a summary of the final rule. Section references below refer to sections of the regulatory text for title 23 of the Code of Federal Regulations (23 CFR). This final rule adds to subpart A general information applicable to part 490, to include requirements for target establishment, reporting on progress, and how determinations would be made on whether State DOTs have made significant progress toward NHPP targets. Subpart A also includes definitions and clarifies terminology associated with target establishment, PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 reporting, and making significant progress. Lastly, subpart A incorporates by reference the HPMS Field Manual, the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, Report No. FHWA– PD–96–001 (December 1995) and errata, and several of the AASHTO standards. Section 490.105 describes the process to be used by State DOTs and MPOs to establish targets for each of the four pavement and two bridge measures. The State DOTs will establish 2- and 4-year targets for a 4-year performance period for the condition of infrastructure assets. State DOTs will establish their first statewide targets 1 year after the effective date of this rule. The MPOs will establish targets by either supporting a State DOT’s statewide target, or defining a target unique to the metropolitan area each time State DOTs establish a target. The MPOs have up to 180 days after State DOTs establish their pavement and bridge condition targets to establish their own targets. The FHWA has placed a timeline on the docket that illustrates how this transition could be implemented. Section 490.107 identifies performance reporting requirements for State DOTs and MPOs. The State DOT will submit its established targets in a baseline report at the beginning of the performance period and report progress at the midpoint and end of the performance period. State DOTs will be allowed to adjust their 4-year target at the midpoint of the performance period. The MPOs are not required to provide separate reporting to FHWA. However, State DOTs and MPOs will need to coordinate and mutually agree to a target establishment reporting process. Coordination will also be required between State DOTs and MPOs if a State DOT adjusts its 4-year target at the midpoint of the performance period. Section 490.109 establishes the method FHWA will use to determine if State DOTs have achieved or have made significant progress toward the achievement of their NHPP targets. Significant progress will be determined from an analysis of estimated condition/ performance and measured condition/ performance of each of the NHPP targets. If applicable, State DOTs will have the opportunity to discuss why targets were not achieved or significant progress was not made. If a State DOT fails to achieve significant progress in a biennial performance reporting period, then it is required to document the actions they will undertake to achieve their targets in the next biennial performance report (though encouraged to document sooner). E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations D. Costs and Benefits The FHWA estimated the incremental costs associated with the new requirements that represent a change to current practices of State DOTs and MPOs.5 The FHWA also estimated the incremental costs associated with the new requirements proposed in this regulatory action. The new requirements represent a change to the current practices of State DOTs and MPOs. The FHWA derived the costs of the new requirements by assessing the expected increase in the level of labor effort for FHWA, State DOTs, and MPOs to standardize and update data collection and reporting systems and establish and report targets. The FHWA derived the costs of each of these components by assessing the expected increase in level of labor effort and additional capital needed to standardize and update State DOT data collection and reporting systems and to establish and report targets. The FHWA sought opinions from pavement and bridge subject matter experts (SMEs) to estimate impacts of the final rule. Cost estimates were developed based on assumptions based on information received from SMEs. To estimate costs, FHWA multiplied the level of effort, expressed in labor hours, with a corresponding loaded wage rate that varied by the type of laborer needed to perform the activity.6 Where necessary, capital costs were also included. Following this approach, the 10-year undiscounted incremental costs to comply with this rule are $156.0 million. The final rule’s 10-year undiscounted cost ($156.0 million in 2014 dollars) decreased from the proposed rule ($196.4 million in 2012 dollars). The FHWA made several changes that affected the cost estimate. These changes include updating costs to 2014 dollars from 2012 dollars and labor costs to reflect current Bureau of Labor Statistics (BLS) data. In addition, FHWA revised the final rule Regulatory Impact Analysis (RIA) to reflect: (1) The deferment of the effective date; (2) the postponed implementation of establishing and updating performance targets, reporting on performance targets, and assessing significant progress toward achieving performance targets; (3) a decrease in the number of MPOs expected to establish quantifiable targets and upgrade software; (4) the costs of coordinating the establishment of targets in accordance with 23 CFR 450; (5) a decrease in pavement data collection requirements for State DOTs; and (6) added effort for State DOTs to collect data on the non-Interstate NHS. The FHWA expects that the rule will result in significant benefits, although they are not easily quantifiable. The rule will yield greater accountability because MAP–21 mandated reporting increases visibility and transparency. The data reported to FHWA will be consistent across the States and will be comprehensive, which will allow for a clear national picture of the status of pavement and bridge conditions. In addition, this data would be available to the public and would be used to communicate a national performance story. The FHWA is developing a public Web site to share performance related information. In addition, the rule will help focus the Federal-aid highway program on achieving balanced performance outcomes. The FHWA used a break-even analysis as the primary approach to quantify benefits. For both pavements and bridges, FHWA focused its analysis on vehicle operating costs (VOC) savings. The FHWA estimated the number of road miles of deficient pavement that will have to be improved (Table 5, Section VII, Rulemaking Analysis and Notices) and the number 5 See Table 4 in Section VII, Rulemaking Analysis and Notices. 6 Bureau of Labor Statistics Employee Cost Index, 2014. mstockstill on DSK3G9T082PROD with RULES5 Subparts C and D establish performance measures and other related requirements to assess pavement and bridge conditions. In subparts C and D, sections 490.305 and 490.405 establish program-specific definitions to ensure that the performance measures are clear and consistent. Sections 490.307 and 490.407 require that State DOTs and MPOs use a total of six measures to assess the condition of pavements and bridges on the NHS. The pavement measures will be applicable to both Interstate and nonInterstate NHS mainline roads and the bridge measures would be applicable for all bridges carrying the NHS which includes on- and off-ramps connected to the NHS. Both the pavement and bridge measures will reflect the percentage of the system in Good and Poor condition. The measure calculations will utilize data documented in the HPMS and in the National Bridge Inventory (NBI). Section 490.315 establishes the minimum level for condition of pavements on the Interstate System as required by 23 U.S.C. 150(c)(3)(A)(iii). Section 490.411 incorporates the minimum level for condition of bridges as required by 23 U.S.C. 119(f)(2). VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 5889 of posted bridges that will have to be avoided (Table 6, Section VII, Rulemaking Analysis and Notices) in order for the benefits of the rule to justify the costs. The results of the break-even analysis quantified the dollar value of the benefits that the rule must generate to outweigh the threshold value, the estimated cost of the rule, which is $156.0 million in undiscounted dollars. The results show that the rule must result in the net improvement of approximately 71 miles of pavement (i.e., from Poor condition) from its current base case projection, and three 1-year-long bridge postings will need to be avoided over 10 years, to generate enough benefits to outweigh the cost of the rule. The FHWA believes that the benefits of this rule will surpass this threshold. Therefore, the benefits of the rule are anticipated to outweigh the costs. Relative to the proposed rule, the threshold for the pavement break-even analysis decreased in the final rule. Specifically, the number of NHS miles in Poor condition needing improvement to Fair condition decreased from 435 to 71 in the final rule. The break-even point was affected by an adjustment to the weighted average incremental cost per VMT related to maintenance and repair particularly by updating the VMT vehicle class weights, a decrease in the undiscounted 10-year cost of the pavement rule, an increase in the total VMT that are in poor, and an increase in the number of NHS miles estimated to be in poor condition based on more recent performance data. The threshold for the bridge breakeven analysis increased in the final rule relative to the proposed rule. Specifically, the number of year-long bridge postings that need to be reduced increased from two to three in the final rule. The break-even point increased due to the following updates to input data: • The average detour for bridges posted with weight limits of at least 40 percent below the legal load decreased from 20 miles to 10.45 miles, and • The percentage of trucks of total average annual daily traffic on posted bridges decreased from 12.6 percent to 9.7 percent. The below table displays the Office of Management and Budget (OMB) A–4 Accounting Statement as a summary of the cost and benefits calculated for this rule. E:\FR\FM\18JAR5.SGM 18JAR5 5890 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations OMB A–4—ACCOUNTING STATEMENT Estimates Units Low Discount rate (percent) Category Primary High Year dollar Period covered Source/citation Benefits: Annualized Monetized ($ millions/year) ....... Annualized Quantified .................................. Qualitative .................................................... None None None None ........... ........... ........... ........... None None None None ........... ........... ........... ........... None None None None ........... ........... ........... ........... NA NA NA NA .............. .............. .............. .............. 7 3 7 3 ................. ................. ................. ................. NA NA NA NA .............. .............. .............. .............. Not Quantified. With regard to the pavement condition measures, the rule is cost-beneficial if it results in the net improvement of approximately 71 miles of pavement (i.e., from poor condition to good) per year, or 710 miles over 10 years, from its current base case projection. With regard to the bridge condition measures, 0.3 year-long bridge postings will need to be avoided per year, or 3 year-long bridge postings over 10 years, in order for benefits to justify costs. Because of these low thresholds, FHWA determines that the rule benefits outweigh the costs. Final Rule RIA. $17,100,924 $16,232,012 None ........... None ........... Years ..... Years Years ..... Years Final Rule RIA. Not Quantified. Costs: Annualized Monetized ($/year) .................... Annualized Quantified .................................. .................... .................... None ........... None ........... None ........... None ........... 2014 2014 2014 2014 ........... ........... ........... ........... 7 3 7 3 ................. ................. ................. ................. 10 10 10 10 Final Rule RIA. Qualitative Transfers ...................................................... None From/To ........................................................ From: To: Effects: State, Local, and/or Tribal Government ...... $17,026,477 $16,161,365 .................... .................... .................... .................... Small Business ............................................ Not expected to have a significant impact on a substantial number of small entities. 2014 ........... 2014 ........... 7 ................. 3 ................. 10 Years ..... 10 Years Final Rule RIA. NA .............. NA .............. NA .............. Final Rule RIA. II. Acronyms and Abbreviations mstockstill on DSK3G9T082PROD with RULES5 Acronym or abbreviation Term AASHTO ................................................................................................... AC ............................................................................................................. ACPA ........................................................................................................ ADA .......................................................................................................... Alaska DOT&PF ....................................................................................... AMPO ....................................................................................................... ASCE ........................................................................................................ ASR .......................................................................................................... CDOT ........................................................................................................ CIP ............................................................................................................ CFR .......................................................................................................... CMAQ ....................................................................................................... COMPASS ................................................................................................ CRCP ........................................................................................................ DOT .......................................................................................................... State DOT ................................................................................................. EIA ............................................................................................................ EO ............................................................................................................. FHWA ....................................................................................................... FAST Act .................................................................................................. FTA ........................................................................................................... HPMS ....................................................................................................... HSIP ......................................................................................................... HSP .......................................................................................................... IRI ............................................................................................................. LRP/LRTP ................................................................................................. MAP–21 .................................................................................................... MARC ....................................................................................................... MEPDG ..................................................................................................... MPH .......................................................................................................... MPO .......................................................................................................... MTC .......................................................................................................... VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00006 Fmt 4701 American Association of State Highway and Transportation Officials. Asphalt-Concrete. American Concrete Pavement Association. Americans with Disabilities Act. Alaska Department of Transportation and Public Facilities. Association of Metropolitan Planning Organizations. American Society of Civil Engineers. Alkali Silica Reactivity. Colorado Department of Transportation. Capital Improvement Program. Code of Federal Regulations. Congestion Mitigation and Air Quality Improvement Program. Community of Planners Association of Southwestern Idaho. Continuously Reinforced Concrete Pavements. U.S. Department of Transportation. State Department of Transportation. Energy Information Administration. Executive Order. Federal Highway Administration. Fixing America’s Surface Transportation Act. Federal Transit Administration. Highway Performance Monitoring System. Highway Safety Improvement Program. Highway Safety Plan. International Roughness Index. Long Range Plan/Long Range Transportation Plan. Moving Ahead for Progress in the 21st Century Act. Mid-American Regional Council. Mechanistic-Empirical Pavement Design Guide 7. Miles per hour. Metropolitan Planning Organization. Metropolitan Transportation Commission. Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Acronym or abbreviation 5891 Term MTP .......................................................................................................... NARA ........................................................................................................ NARC ........................................................................................................ NBI ............................................................................................................ NBIS ......................................................................................................... NHPP ........................................................................................................ NCHRP ..................................................................................................... NHS .......................................................................................................... NPRM ....................................................................................................... NYMTC ..................................................................................................... NYSAMPO ................................................................................................ OMB .......................................................................................................... PCA .......................................................................................................... PCCP or Jointed PCCP ........................................................................... PCI ............................................................................................................ PRA .......................................................................................................... PSR .......................................................................................................... PSRC ........................................................................................................ RIA ............................................................................................................ RIN ............................................................................................................ ROW ......................................................................................................... RSL ........................................................................................................... Secretary .................................................................................................. SHSP ........................................................................................................ SME .......................................................................................................... TEMPO ..................................................................................................... TMA .......................................................................................................... TAMP ........................................................................................................ UMRA ....................................................................................................... U.S.C. ....................................................................................................... VMT .......................................................................................................... VOC .......................................................................................................... Metropolitan Transportation Plan. National Archives and Records Administration. National Association of Regional Councils. National Bridge Inventory. National Bridge Inspection Standards. National Highway Performance Program. National Cooperative Highway Research Program. National Highway System. Notice of Proposed Rulemaking. New York Metropolitan Transportation Council. New York State Association of Metropolitan Planning Organizations. Office of Management and Budget. Portland Cement Association. Portland Cement Concrete Pavements. Pavement Condition Index. Paperwork Reduction Act. Present Serviceability Rating. Puget Sound Regional Council. Regulatory Impact Analysis. Regulatory Identification Number. Right of Way. Remaining Service Life. Secretary of the U.S. Department of Transportation. Strategic Highway Safety Plan. Subject Matter Expert. Association of Texas Metropolitan Planning Organizations. Transportation Management Area. Transportation Asset Management Plan. Unfunded Mandates Reform Act of 1995. United States Code. Vehicle Miles Traveled. Vehicle Operating Costs. 7 http://onlinepubs.trb.org/onlinepubs/archive/mepdg/home.htm. mstockstill on DSK3G9T082PROD with RULES5 III. Background The DOT’s proposal regarding MAP– 21’s performance requirements is being presented through several rulemakings, some of which were referenced in the above discussions. As a summary, these rulemaking actions are listed below and should be referenced for a complete picture of performance management implementation. The summary below describes the main provisions that DOT plans to propose for each rulemaking. On January 5, 2015, FHWA published an NPRM (80 FR 326) proposing the following: (1) The definition of national measures for the condition of NHS pavements and bridges; (2) the process to be used by State DOTs and MPOs to establish their pavement and bridge condition related performance targets that reflect the measures proposed in the NPRM; (3) the process State DOTs must follow to report on progress toward meeting or making significant progress toward meeting pavement and bridge condition related performance targets; (4) a methodology to be used to assess State DOTs’ compliance with the target achievement provision specified under 23 U.S.C. 148(i); and (5) the minimum levels for the condition of pavement on the Interstate System and bridges carrying the NHS which VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 includes on- and off-ramps connected to the NHS. On March 15, 2016, FHWA published a final rule (81 FR 13882) covering the safety-related elements of the Federalaid Highway Performance Measures Rulemaking that included the following: (1) The definitions that are applicable to the new 23 CFR part 490; (2) the process to be used by State DOTs and MPOs to establish their safety-related performance targets that reflect the safety measures; (3) a methodology to be used to assess State DOTs’ compliance with the target achievement provision specified under 23 U.S.C. 148(i); and (4) the process State DOTs must follow to report on progress toward meeting or making significant progress toward meeting safety-related performance targets. The final rule also included a discussion of the collective rulemaking actions FHWA intends to take to implement MAP–21 and FAST Act performance related provisions. The FHWA published a third Federalaid Highway Performance Measures Rulemaking (Regulatory Identification Number (RIN) 2125–AF54) on April 22, 2016, FR Vol. 81, No. 78. In this NPRM, FHWA proposed national measures for the remaining areas under 23 U.S.C. 150(c) that were not discussed under the first and second measure rules. The PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 third rulemaking effort includes the following measure areas: (1) National Management Performance Measures for Performance of the Interstate System and non-Interstate NHS; (2) Freight Movement on the Interstate System and the Congestion Mitigation and Air Quality Improvement Program (CMAQ) Traffic Congestion; (3) CMAQ On-Road Mobile Source Emissions; (4) the State DOT and MPO target establishment requirements for the Federal-aid highway program; and (5) performance progress reporting requirements and timing. When FHWA began implementation of MAP–21, the three related Federalaid highway performance measure rules were to be published at the same time to allow for a single, common effective date for all three rules. While FHWA recognizes that one common effective date could be easier for State DOTs and MPOs to implement, the process to develop and implement all of the Federal-aid highway performance measures required in MAP–21 has been lengthy. In light of this, instead of waiting for all three rules to be final before implementing the MAP–21 performance measure requirements, each of three Federal-aid highway performance measures rules will have individual effective dates. This would E:\FR\FM\18JAR5.SGM 18JAR5 5892 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 allow FHWA, State DOTs, and MPOs to begin implementing some of the performance requirements much sooner than waiting for the rulemaking process to be complete for all three rules. The FHWA also believes that a staggered approach to implementation (i.e., implementing one set of requirements at the onset and adding on requirements over time) will better help State DOTs and MPOs transition to a performance based framework. The FHWA expects that even though the effective date for each rule would occur as that rule is finalized, the second rule would ultimately be aligned with the third rule through a common performance period and reporting requirements for the proposed measures. A timeline for Biennial Performance Reports is shown in Figure 1 in section 490.105(e)(1). Although FHWA believes that individual implementation dates will help State DOTs and MPOs transition to performance based planning, to lessen any potential burden of staggered effective dates, FHWA will provide guidance to State DOTs and MPOs on how to carry out the new performance requirements. In addition to providing this guidance, FHWA is committed to providing stewardship to State DOTs and MPOs to assist them as they take steps to manage and improve the performance of the highway system. As a Federal agency, FHWA is in a unique position to use resources at a national level to capture and share strategies that can improve performance. The FHWA will continue to dedicate resources at the national level to provide technical assistance, technical tools, and guidance to State DOTs and MPOs to assist them in making more effective investment decisions. It is FHWA’s intent to be engaged at a local and national level to provide resources and assistance from the onset to identify opportunities to improve performance and to increase the chances for full State DOT and MPO compliance of new performance related regulations. The FHWA technical assistance activities include conducting national research studies, improving analytical modeling tools, identifying and promoting best practices, preparing guidance materials, and developing data quality assurance tools. IV. Summary of the Notice of Proposed Rulemaking The NPRM published on January 5, 2015 (80 FR 326), was one of several NPRMs that FHWA issued to implement sec. 1203 of MAP–21, which establishes performance management as a way to transform the Federal-aid highway program and refocus it on national VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 transportation goals, increase accountability and transparency of the program. The NPRM proposed a set of national measures for State DOTs to use to assess the condition of pavement and bridges on the NHS in support of MAP– 21’s national goal of maintaining the condition of highway infrastructure assets in a state of good repair. After a period of engagement and outreach with State DOTs, MPOs, and other stakeholders and a review of nationally recognized reports, FHWA’s NPRM proposed six national performance measures that rated the percentage of all mainline pavements on the NHS (excluding the Interstate System), bridges carrying the NHS which includes on- and off-ramps connected to the NHS, and mainline pavements on the Interstate System in either Good or Poor condition. The ratings proposed in the NPRM were derived from several quantitative metrics that addressed physical characteristics of pavement and bridge condition and were tracked and reported regularly to FHWA by State DOTs in the HPMS and the NBI. The NPRM also proposed a minimum level of condition for pavements on the Interstate System as required by the statute. The NPRM also incorporated the minimum condition level for NHS bridges, as stated in 23 U.S.C. 119(f)(2). To support the new measures, the NPRM proposed to establish standardized data requirements that prescribed State DOTs’ pavement and bridge condition data gathering practices. These requirements specified the data elements State DOTs must collect, methods for collecting those data elements, and the spatial and temporal coverage of the data they collect. The NPRM’s proposed data requirements ensured more accurate calculation of the proposed national pavement and bridge performance measures based on State DOTs’ data. The NPRM also proposed to establish the processes for State DOTs and MPOs to establish and report progress toward achieving targets, and the process for FHWA to determine whether State DOTs have made significant progress in achieving targets. The measures, data requirements, and related processes included in the NPRM were selected by FHWA after careful determination that they represented the best choices for achieving greater consistency among State DOTs in compiling accurate infrastructure condition information, following processes for target setting, and reviewing progress toward targets. In turn, FHWA expected the measures to enhance accountability and support a PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 strong national focus on the condition of the Nation’s highways, while minimizing the number of measures needed and maintaining reasonable flexibility for State DOTs as they manage risk, differing priorities, and fiscal constraints. Lastly, FHWA anticipated that the proposed measures could be implemented in the timeframe required under MAP–21, without introducing a considerable burden on State DOTs. Pavement Condition Measures The four pavement condition measures proposed in the NPRM were: (1) Percentage of pavements on the Interstate System in Good condition; (2) Percentage of pavements on the Interstate System in Poor condition; (3) Percentage of pavements on the NHS (excluding the Interstate System) in Good condition; and (4) Percentage of pavements on the NHS (excluding the Interstate System) in Poor condition. Pavement Data Requirements and Metrics Under the NPRM, performance ratings of Good, Fair, or Poor condition for pavement were determined by FHWA using a combination of several metrics derived from data elements collected by State DOTs and reported to the HPMS. These metrics collectively provided a way to quantify pavement condition in terms of roughness and cracking for all pavement types, rutting for asphalt pavement surfaces, and faulting (misalignment between concrete slabs) for jointed concrete pavement surfaces. Roughness affects users’ travel speeds, safety, comfort, and transportation costs. Cracking, rutting, and faulting are considered surface indicators of structural deterioration in different pavement types. Since 2010, most State DOTs have reported roughness, cracking, rutting, and faulting data annually to FHWA through HPMS. The NPRM specified that data for the roughness, cracking, rutting, and faulting metrics must be collected consistent with practices outlined in the HPMS Field Manual (A draft of the updated HPMS Field Manual was placed on the docket with the NPRM at FHWA–2013–0053). Calculation of Pavement Measures The proposed pavement measures were designed to reflect a pavement’s predominant condition, represented by roughness, cracking, rutting, and faulting data elements, as applicable. For a section of pavement to be rated in Good condition, the absolute values for all relevant metrics need to exceed thresholds specified in the NPRM. E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Conversely, a section of asphalt or jointed concrete pavement would be rated in Poor condition if any two of three relevant metrics were below specified threshold values. A section of Continuously Reinforced Concrete Pavement would be rated in Poor condition if the two relevant metrics are below the specified threshold values. The FHWA explained that a measurement approach that focused only on increasing Good conditions or reducing Poor conditions may result in practices that would not optimize the benefits of infrastructure investments. Bridge Condition Measures The two bridge condition measures proposed in the NPRM were: (1) Percentage of NHS bridge deck area classified as in Good condition and (2) Percentage of NHS bridge deck area classified as in Poor condition. Bridge Data Requirements and Metrics Under the NPRM, performance ratings of Good or Poor condition for bridges were determined by FHWA using a combination of several metrics collected by each Federal agency, State DOT, and tribal government as part of their NBI submittals (specifically deck, superstructure, substructure, and culverts). These metrics provide an overall characterization of the general physical condition of the entire bridge component being rated. The NBI database was established in 1972 and State DOTs have been required to submit annual NBI reports to FHWA since 1978. The NBI is a highly consistent set of national data for evaluating and monitoring the condition and performance of bridges that is based on National Bridge Inspection Standards (NBIS) for the proper and uniform inspection and evaluation of highway bridges. The NPRM further proposed to weight the classifications by the respective deck area of the bridge and express condition totals as a percentage of the total bridge deck area on the NHS in a State. mstockstill on DSK3G9T082PROD with RULES5 Calculation of Bridge Measures The NPRM’s proposed bridge measures reflected the lowest component condition rating for the bridge, based on the NBI condition ratings for deck, superstructure, substructure, and culverts. For a bridge to be classified as in Good condition, all the relevant metrics need to equal the values specified in the NPRM. Similarly, a bridge would be classified as in Poor condition if any of the relevant metrics equal the values specified in the NPRM. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 State Departments of Transportation and Metropolitan Planning Organizations Pavement and Bridge Performance Targets The NPRM described a process by which the six pavement and bridge condition performance measures would be used by State DOTs and MPOs to establish quantifiable statewide performance targets to be achieved over a 4-year performance period, with the first performance period starting in 2016. Under the NPRM, a State DOT or MPO could consider a number of factors (e.g., funding availability and local transportation priorities) that could impact the targets they ultimately establish for pavement and bridge system conditions. According to the NPRM, State DOTs would establish 2and 4-year targets for the six pavement and bridge condition measures 1 year after the effective date of the rule. The MPOs would establish targets by either supporting the State DOT’s statewide target, or defining a target unique to the metropolitan planning area each time the State DOT establishes a target. In accordance with MAP–21, the NPRM provided MPOs a 180-day period following the date at which the State DOT established their pavement and bridge targets. Furthermore, the NPRM proposed a minimum level of condition for Interstate System pavements of no more than 5 percent of pavement lane miles in Poor condition, and reiterated the MAP–21 requirement of no more than 10 percent of the deck area of bridges on the NHS classified as structurally deficient. State Departments of Transportation and Metropolitan Planning Organization Pavement and Bridge Performance Reporting The NPRM proposed that State DOTs submit biennial reports to FHWA on the condition and performance of the NHS. Under the NPRM, State DOTs submitted their targets in a baseline report at the beginning of each performance period and reported progress in achieving targets at the midpoint and end of the performance period. State DOTs were allowed to adjust their 4-year target at the midpoint of the performance period. The MPOs were not required to provide separate reporting to FHWA. However, State DOTs and MPOs needed to agree on a reporting process in the Metropolitan Planning Agreement. Determination of Significant Progress The NPRM proposed the method for FHWA to determine if State DOTs achieved significant progress toward their target from an analysis of PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 5893 estimated condition/performance and measured condition/performance of each of the targets. If applicable, State DOTs could have the opportunity to discuss why targets were not achieved or significant progress was not made. If a State DOT failed to achieve significant progress in two consecutive biennial determinations, then the State DOT was required to document in their next biennial performance report, and encouraged to document sooner, the actions they would undertake to achieve their targets. V. Discussion of Comments The FHWA received 127 public comment submissions to the docket. This included letters from 42 State DOTs, 13 MPOs, 19 counties or local government agencies, 16 industry associations, and several other submissions from individuals, advocacy organizations, and private industry members. One submission contained over 1,000 duplicates of a letter expressing support for the rule and appreciation to FHWA for responding to public comment on the first performance management NPRM related to safety. The comment submissions covered a number of topics in the proposed rule, with the most substantive comments on establishment of targets, reporting, the significant progress determination process, pavement condition performance measures, and bridge condition performance measures. Of the 127 public comment submissions received, the majority expressed overall support for the rule. Commenters expressed general concerns over NHS ownership, the performance period timespan, the start of the reporting cycle, target adjustment, significant progress determination and timing, incorporation by reference, and minimum condition penalties. For pavement condition measures specifically, commenters had mixed opinions regarding the use of the IRI and other metrics and expressed concern over the proposed extent of data collection, the treatment of missing data, and the proposed minimum condition level. For bridge condition measures specifically, commenters expressed mixed opinions about the use of element level data and expressed opposition to the proposed definition of structurally deficient. The FHWA thanks all commenters for their responses to the NPRM. The FHWA carefully considered the comments received from the stakeholders. E:\FR\FM\18JAR5.SGM 18JAR5 5894 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Selected Topics for Which FHWA Requested Comments In the NPRM, FHWA requested comments on different topics related to the rulemaking. Several of those had an impact on the final rule and are discussed in this section. The others are discussed in the section-by-section analysis. mstockstill on DSK3G9T082PROD with RULES5 Purpose and Approach of the Regulatory Action The FHWA received general support of the performance management concept and its proposed implementation from State DOTs, industry groups, and private citizens.8 The FHWA also received several comments that opposed specific portions of the proposed rule from State DOTs, industry, local governments, and advocacy groups.9 Some of these same commenters shared their overall support of the rule. A number of State DOTs and MPOs took issue with the assumptions and levels of cost analysis associated with the requirements of the NPRM reflected in the benefit-cost analysis and suggested that it be reconsidered.10 These comments are discussed in more detail in Section VI. In terms of benefits, Fugro Roadware, a firm that manufactures and operates equipment that is used to measure the pavement conditions on State and municipal networks, asserted that the ‘‘entire pavement and traffic assessment management process has been shown to improve the quality of road networks without an overall increase of funding. . . .’’ Finally, FHWA received numerous comments that fell outside of the scope 8 The State DOTs of Alaska, Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Minnesota, Missouri, New Hampshire, New York, Oregon, Vermont, Virginia, and Washington State; and AASHTO, Cemex USA, National Asphalt Pavement Association, National Association of Regional Councils, National Center for Pavement Preservation, New York Metropolitan Transportation Council, New York State Association of Metropolitan Planning Organizations, Northeast Pavement Preservation Partnership, Oversight Committee for the California Local Streets and Roads Needs Assessment, Southern California Association of Governments, Southeast Michigan Council of Governments, Southeast Pavement Preservation Partnership, and Transportation for America, Blake Rubenstein. 9 State DOTs of Alaska, Idaho, New York, North Dakota, Oregon, South Dakota, Rhode Island, and Wyoming; the City of Santa Rosa, CA and the Seattle DOT; and Agile Assets, American Road and Transportation Builders Association, Center for American Progress, Michigan Transport Commission and Asset Management, and Transportation for America. 10 Atlanta Regional Commission, Texas Association of Metropolitan Planning Organizations, Transportation for America, and State DOTs of Colorado, Rhode Island, North Carolina, Mississippi, Oklahoma, Michigan, Georgia, Louisiana, and Oregon. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 of the rulemaking. The American Motorcyclist Association, for example, endorsed the design standards that advance the safety of motorcycle use. The advocacy group Perils for Pedestrians commented that more pedestrians are injured by falls than vehicles. The American Society of Civil Engineers (ASCE) requested FHWA incorporate Life Cycle Costs into performance management rules. Finally, private citizens (1) requested an addition to the proposed rule to promote small business during the inspection and accounting for each new project; (2) advocated for improved standards for design and construction of longitudinal joints in pavements; (3) endorsed the goals for Safety and Asset Management Rules as well as incentives to increase public transit; and ‘‘(4) suggested the rule require the use of compact joints on highways to extend the pavement’s lifetime.’’ Public Comments in Response to FHWA’s Questions in the NPRM In the NPRM, FHWA requested comments on certain topics related to the pavement and bridge condition performance measures rulemaking. Comments received in response are summarized below. Does the approach to performance measures support the nine implementation principles? The FHWA listed nine principles in the NPRM preamble that were considered in the development of the proposed regulation.11 Overall, 11 Nine principles used in the development of proposed regulations for national performance management measures under 23 U.S.C. 150(c), www.regulatons.gov, Docket FHWA–2013–0053: i. Provide for a National Focus—focus the performance requirements on outcomes that can be reported at a national level. ii. Minimize the Number of Measures—identify only the most necessary measures that will be required for target establishment and progress reporting. Limit the number of measures to no more than two per area specified under 23 U.S.C. 150(c). iii. Ensure for Consistency—provide a sufficient level of consistency, nationally, in the establishment of measures, the process to set targets and report expectations, and the approach to assess progress so that transportation performance can be presented in a credible manner at a national level. iv. Phase in Requirements—allow for sufficient time to comply with new requirements and consider approaches to phase in new approaches to measuring, target establishment, and reporting performance. v. Increase Accountability and Transparency— consider an approach that will provide the public and decision makers a better understanding of Federal transportation investment needs and return on investments. vi. Consider Risk—recognize that risks in the target establishment process are inherent, and that performance can be impacted by many factors outside the control of the entity required to establish the targets. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 commenters (AASHTO and the State DOTs of Alabama, Connecticut, Georgia, Maryland, New Jersey, New York State, Oregon, and Texas, and private entity Steve Mueller Consultancy) supported FHWA’s nine principle approach. However, the New York Metropolitan Transportation Council (NYMTC) felt the NPRM was inconsistent with the nine principles in relationship to linking financial penalties to the single nationwide [sic, statewide] targets for pavement and bridges causing inconsistency with the principles of: (1) Understand that Priorities Differ (‘‘Single targets do not acknowledge regional differences in infrastructure age, . . .’’), (2) Recognize Fiscal Constraints (‘‘These targets and penalties have the effect of limiting flexibility we have for investing in assets across our systems at the state, regional, and local levels, as we deem appropriate.’’), and (3) Provide for Flexibility (‘‘Tying penalties to the specific measures in § 490.317 and § 490.413 and requiring [S]tates to focus spending on two specific components of the transportation system (Interstate pavement and NHS bridges) is the antithesis of flexibility.’’) NYSDOT (New York State Department of Transportation) and other NYMTC members are responsible for the entire transportation system in the region, and all approach asset management from a system-level perspective (including both NHS and non-NHS assets). These thresholds and associated penalties could lead to an exclusive focus on Interstate pavement and NHS bridges at the expense of the remainder of the system.’’ In addition, the Northeast Pavement Preservation Partnership (NEPPP) felt most of the principles were covered but that FHWA did not address the following principles: (1) Recognize Fiscal Constraints—(‘‘The proposed performance measures do not encourage optimal investment. It can be argued that they instead encourage worst-first mentality, since there is a target for percent poor, and since there are bins vii. Understand that Priorities Differ—recognize that State DOTs and MPOs must establish targets across a wide range of performance areas, and that they will need to make performance trade-offs to establish priorities, which can be influenced by local and regional needs. viii. Recognize Fiscal Constraints—provide for an approach that encourages the optimal investment of Federal funds to maximize performance but recognize that, when operating with scarce resources, performance cannot always be improved. ix. Provide for Flexibility—recognize that the MAP–21 requirements are the first steps that will transform the Federal-aid highway program to a performance-based program and that State DOTs, MPOs, and other stakeholders will be learning a great deal as implementation occurs. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations (i.e., percent good, percent fair, and percent poor)). Optimal investment could much more readily be achieved with an overall Index or RSL approach, where pavement preservation is encouraged along with rehabilitation.’’); and (2) Provide for Flexibility—(‘‘It is not apparent in the rules how flexibility is provided for. No provision is made for allowing a [State] DOT to implement and manage toward different measures which may be more cost-effective.’’). The National Asphalt Pavement Association (NAPA) made similar arguments in regard to principle (1) ‘‘Recognize Fiscal Constraints—(‘‘NAPA is concerned that the proposed rule could lead to poor decisions (i.e., ‘‘worst first’’) in order to comply with the NPRM minimum pavement condition, rather than decisions that factor in the long-term preservation and performance of pavements.’’); and (2) Provide for Flexibility—(‘‘Agencies should have flexibility to make decisions that balance preserving good/fair pavements with improving and rehabilitating poor pavements.’’) While the following commenters generally agreed that FHWA’s approach to performance measures was consistent with the nine principles, they also identified areas that were lacking. Georgia DOT stated that the approach in the proposed rule may not fully support the principle of recognizing fiscal constraints or provide for an approach that encourages the optimal investment of Federal funds to maximize performance. The NYMTC and the Georgia and Maryland DOTs stated that limited funding could prevent targets and minimums from being achievable and that imposing the proposed penalties could result in worsening of other assets. Moreover, the NYMTC commented that with no long term funding solution for national or State transportation programs, States may not have a defensible way to establish targets or make changes to their investment strategies. The NEPPP also commented that the proposed rule will not allow a State DOT to implement and manage their program toward different measures or metrics that encourage a balanced program based on asset management pavement preservation conceptions. Several commenters cited concerns over flexibility in the rule tied to implementation principles. The NYS DOT commented that States should not be forced to use specific performance targets or measures. The New Jersey DOT raised concerns about reporting requirements, commenting that they will need to maintain ‘‘two sets of VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 books,’’ one for national performance reporting and one to manage their network, using appropriate pavement management and asset management principles. Suggestions for How FHWA Can Best Assist State DOTs and MPOs To Maximize Opportunities for Successful Implementation of the Proposed Performance Measures Generally, States expressed a desire for more training materials, technical assistance, and technical guidance so that they can implement the rule accurately and efficiently. Several commenters, including AASHTO and the State DOTs of Connecticut, Louisiana, New Jersey, and Oregon, expressed a desire for additional technical assistance and guidance detailing the process FHWA will use to compute the overall pavement condition measures. Commenters also requested guidance on target setting best practices for State DOTs and MPOs. The Maryland DOT suggested that FHWA provide a contact person or Web link for technical assistance activities. In addition, the Alabama DOT commented that more guidance be given on data quality. They argued that the training materials have lacked information in statistical methodology and note, ‘‘it is simple to determine if a dataset is reasonable; it is quite a different matter to determine of the dataset is correct.’’ Should the measures reflect additional factors such as facility location, functional class, level of use, environment, or impact it may have on other aspects of transportation performance? The American Concrete Pavement Association (ACPA) and Portland Cement Association (PCA) requested that FHWA modify the proposed rule to provide a better assessment of the performance of our highways and bridges. A private citizen, Joyce Dillard, commented that the measures should reflect level of use, environment, and overweight trucks. Acknowledging that there is limited funding and increasing needs, Oregon DOT commented that adding additional factors could help show progress. The commenter suggested adding measures such as functional class, progress made on other deficiencies (e.g., painting, vertical clearance, and rail), and risk. Additionally, for bridges specifically, the commenter suggested looking at mitigation measures to reduce vulnerability to seismic activity and scour. In addition, the New York City DOT recommended that traffic counts on bridges could be a useful measure to PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 5895 collect. The commenter noted that that traffic counts are an important variable that quantifies a bridge’s performance and life expectancy. Appropriateness of the Proposed Threshold Criteria To Determine Good, Fair, and Poor Ratings • Concerns with Pavements: Commenters stated that agencies will be driven to overemphasize treatments that lower cracking and improve ride quality on pavements that currently rank as Poor at the cost of solutions that extend the performance life of the pavements that currently rank as Good or Fair (e.g., surface treatments). In addition, commenters noted that although pavement types referenced in the NPRM (Portland Cement Concrete Pavements and Continuously Reinforced Concrete Pavements (CRCP)) make up the vast majority of the NHS, other pavement surfaces exist in small quantities. Should FHWA establish a minimum condition threshold that would become more stringent over time? Commenters provided mixed opinions on the establishment of a minimum condition threshold that would become more stringent over time. Several commenters expressed concern that pressure to meet a difficult minimum condition threshold may push States to implement a worst-first approach to pavement preservation, which would run counter to the asset management principles and planning approach advocated by FHWA.12 The Oregon DOT commented that a problem with pavement performance measures is that they ‘‘discourage proven, cost effective, pavement preservation techniques.’’ Agencies that are under pressure to meet performance targets may implement a worst-first approach. Other State DOTs and AASHTO recommended FHWA evaluate the effects of the national level performance measures, targets and minimum condition levels to ensure that these policies have a positive impact on management approaches. 12 State DOTs of Arkansas and Mississippi, the Southern California Association of Governments, the Seattle Department of Transportation. E:\FR\FM\18JAR5.SGM 18JAR5 5896 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations VI. Section-by-Section Discussion of the General Information and National Performance Management Measures for the National Highway Performance Program: Pavement and Bridge A. Subpart A—General Information mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.101 General Definitions In the NPRM, FHWA proposed several definitions for used in this regulation. Only Washington State DOT commented on the definition for the term ‘‘HPMS’’ and they agreed with the definition. The FHWA retains the definition for HPMS. In the NPRM, the term ‘‘full extent’’ was defined as ‘‘continuous collection and evaluation of pavement condition data over the entire length of the roadway.’’ The term ‘‘mainline highways’’ was defined as ‘‘the through travel lanes of any highway exclude ramps, shoulders, turn lanes, crossovers, rest areas, and other pavement surfaces that are not part of the roadway normally travelled by through traffic.’’ Only Washington State DOT commented on the definition for ‘‘full extent’’ and they agreed with the definition. The State DOTs of Connecticut, Maine, New Hampshire, Vermont, and Washington State and AASHTO agreed with the definition of ‘‘mainline highways.’’ However, Colorado DOT stated that the definition conflicts with section 490.309(c)(1)(i) requiring data for the full extent of the mainline highway of the NHS which would indicate that State DOTs need to collect data on all through travel lanes. The Colorado DOT added that the intent is that States collect one lane’s worth of data on NHS. The FHWA described in the NPRM that section 490.309(c) applies to Through Lanes, Surface Type, and Structure Type Data Items, while section 490.309(b) requires that State DOTs report IRI, rutting, faulting, and Cracking Percent only apply to the rightmost travel lane or one consistent lane, if the rightmost travel lane is not accessible. Based on this, FHWA believes that the definitions of ‘‘mainline highways’’ and ‘‘full extent’’ do not conflict with other sections in this rule. The FHWA retains those definitions in the final rule. The Washington State DOT agreed with the definitions for ‘‘metric’’ and ‘‘measure,’’ and Mid-America Regional Council appreciated the distinction between the two terms. The FHWA retains the definitions for ‘‘metric’’ and ‘‘measure.’’ The Puget Sound Regional Council (PSRC) urged FHWA to consider VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 allowing MPOs to establish performance targets that ‘‘encompass all areas within their planning boundary rather than only the Federally designated metropolitan planning area.’’ They added that this definition of area would allow for consistent infrastructure condition targets for the full region in the event the MPO target differs from the State target. To eliminate the ambiguity with the term ‘‘metropolitan planning area,’’ FHWA includes the definition for ‘‘metropolitan planning area’’ in this regulation as the term defined in the Statewide and Nonmetropolitan and Metropolitan Transportation Planning Regulations at 23 CFR 450.104. This term is used consistently as the extent of an MPO target that represents performance outcomes of the transportation network within the area. So the definition has been included to ensure consistency in interpretation by readers. In the NPRM, the term ‘‘nonurbanized area’’ was defined as ‘‘any geographic area that is not an ‘urbanized area’ under either 23 U.S.C. 101(a)(34).’’ The FHWA received comments from Washington State and Virginia DOTs on the definition for ‘‘non-urbanized area.’’ The Washington State DOT supported the proposed definition. The Virginia State DOT pointed out that the proposed definition is missing a citation because only one citation (23 U.S.C. 101(a)(34)) was provided after the word ‘‘either.’’ The FHWA appreciates the comments from both agencies and examined the definition for better clarification while maintaining consistency with section 490.105(e)(3)(ii), which specifies a single collective non-urbanized area target and is consistent with the language in the final rule for safety performance measures. The FHWA also recognizes the word ‘‘either’’ was inadvertently included in the proposed definition. As a result, FHWA revised the definition for ‘‘non-urbanized area’’ to clearly indicate that a non-urbanized area is a single, collective area comprising all of the areas in the State that are not ‘‘urbanized areas’’ defined under 23 U.S.C. 101(a)(34). Only Washington State DOT commented on the definition for the term ‘‘performance period,’’ agreeing with the proposed definition. The FHWA retains the definition for ‘‘performance period.’’ The Washington State DOT agreed with the definition for ‘‘target.’’ The Minnesota DOT recommended the term ‘‘plan outcome’’ as opposed to ‘‘target’’ because they said that Minnesota DOT uses the term ‘‘target’’ to identify an aspirational performance objective to define investment need, as opposed to PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 an objective that they expect to achieve within the constraints of the resources currently available.’’ The FHWA appreciates Minnesota DOT’s suggestion on the term. However, FHWA retains the term ‘‘target’’ in the final rule because the term is referenced in the statute (23 U.S.C. 150(d), 134(h), 135(d), and 119(e)). As discussed in section 490.309 (Using Structure_Type to Identify and Exclude Bridges) and section 490.405, FHWA moves the definition of ‘‘bridge’’ from subpart D (i.e., section 490.405) to this section in subpart A to use the term in a consistent manner throughout this rule. The FHWA strikes the term ‘‘this section’’ in the definition of ‘‘bridge’’ and replaces with the term ‘‘this Part’’ to ensure that the definition of ‘‘bridge’’ in this section applies to both subparts in the final rule. Therefore, the definition of ‘‘bridge’’ in the final rule is: ‘‘Bridge, as used in this Part, is defined in § 650.305 of this title, the National Bridge Inspection Standards.’’ Please see discussion sections for sections 490.309 and 490.405 for more detail. Finally, FHWA retains the definitions for ‘‘National Bridge Inventory’’ as proposed in the NPRM. There were no substantive comments regarding the definition. Discussion of Section 490.103 Data Requirements The FHWA proposed in section 490.103 of the NPRM, the data requirements that apply to more than one subpart in part 490. Additional proposed data requirements that are unique to each subpart are included and discussed in their respective subpart. Some comments from AASHTO and the State DOTs of Alaska and Connecticut referenced section 490.103 in their respective letters, but their comments were on the incorporation by reference of the HPMS Field Manual and NBI Coding Guide. Please refer to the discussion on section 490.111 on incorporation by reference for response and discussion. There were no direct comments on section 490.103(a). However, FHWA did correct the referenced subparts in section 490.103(a) by changing ‘‘B and C’’ to ‘‘C and D’’ so that the regulatory text correctly refers to the subparts in the final rule. In section 490.103(b), FHWA proposed that State DOTs submit urbanized area boundaries reported to HPMS in the year the Baseline Performance Period Report is due. Section 490.105(d)(3) specifies that the urbanized boundaries used in the Baseline Performance Period Report are E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations applicable for the entire performance period, regardless of whether FHWA approves adjustments to the urbanized area boundary during the performance period. This provision was proposed because the urbanized area boundaries and resulting non-urbanized area boundary have the potential to change on varying schedules; and changing a boundary during a performance period may lead to changes in the measures reported for the area, which could impact how an established target relates to actual measured performance. The FHWA also explained in the NPRM that State DOT submitted boundary information would be the authoritative data source for: (1) The target scope for the additional targets for urbanized and non-urbanized areas (section 490.105(e)(3)); (2) progress reporting (section 490.107(b)); and (3) IRI rating (section 490.313(b)(1)) for the pavement condition measures identified in section 490.105(c)(1) through (3). The FHWA received four comments directly related to the urbanized area boundary. The Missouri State DOT supported that State DOT-submitted boundary information should be the authoritative data source for the target scope for the additional targets for urbanized and non-urbanized areas. The Oregon State DOT commented that keeping urbanized area constant for the performance measures’ entire 4-year performance period is ‘‘too inflexible and may not reflect how investment decisions are actually made during the performance period due to changing route priorities.’’ They added that the proposed approach ‘‘looks backward in the mirror, rather than forward which is needed to incorporate up to date planning and policy.’’ The FHWA agrees with Oregon State DOT in that at the time of target establishment, agencies should be looking forward by incorporating up-to-date planning and policy decisions and anticipate future changes. Although planning and policy decisionmaking should be ‘‘forwardlooking,’’ for the purpose of assessing the impact of investment on condition/ performance, FHWA believes preserving consistent boundaries throughout a performance period is essential to consistently assess target achievement during a performance period. The Texas State DOT and Texas Association of Metropolitan Planning Organizations commented that guidance is needed on where an urbanized area boundary will be set in relation to bridges. They stated that in some cases, the midpoint of the structure has been used as the boundary. There should be a determination regarding this issue in VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 relation to how these bridges are classified at urban/rural boundaries and, in the case of two adjacent MPO planning area boundaries, to which MPO area the structure is assigned. Considering these comments, FHWA plans to issue guidance on urbanized and non-urbanized target establishment, which will address issues related to bridge boundaries. Because the threshold values for IRI metric no longer depend on the location (i.e., urbanized area with a population greater than 1 million) of pavement sections which is discussed in section 490.313(b)(1), FHWA revises sections 490.103(b) and 490.107(b)(1)(ii)(D) to remove the term ‘‘IRI rating determination.’’ Section 490.103(c) is reserved. No direct comment was received for section 490.103(d), and FHWA retains the language as proposed in the NPRM. Please see revised section 490.105(d)(3) for discussion on NHS limits and refer to the section 490.111 discussion section on the incorporation by reference. Discussion of Section 490.105 Establishment of Performance Targets In section 490.105 of the NPRM, FHWA proposed the minimum requirements that would be followed by State DOTs and MPOs in the establishment of targets for all measures identified in section 490.105(c). These requirements were proposed to implement the 23 U.S.C. 150(d) and 23 U.S.C. 134(h)(2) target establishment provisions in a manner that provides for the consistency necessary to evaluate and report progress at a State, MPO, and national level, while also providing a degree of flexibility for State DOTs and MPOs. A couple of general comments on section 490.105 were received by FHWA. The Oregon State DOT expressed their appreciation for the proposed rule allowing State DOTs to establish performance targets ‘‘without the unnecessary burden of an FHWA target approval process.’’ However, the Virginia State DOT commented that the proposed rule is ‘‘unclear on what may occur if FHWA disagrees with a State’s proposed performance target and/or a State’s strategy to meet that performance target.’’ They added that the ‘‘rule does not indicate what actions FHWA may take in such a situation, the rule as proposed sets up a possible point of future conflict between States and FHWA on how the State manages its resources in order to effectively manage its highway infrastructure to meet traffic demands and assure public safety.’’ However, the Virginia State DOT noted PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 5897 that they are in favor of the proposal’s approach to States establishing targets. In response to the comment from Virginia State DOT, FHWA notes that there is no language in the NPRM or this rule related to FHWA’s approval or rejection of established targets by State DOTs and MPOs because the statutory language in MAP–21 provides that State DOTs and MPOs have the ability to establish their own targets and MAP–21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. In the discussion for section 409.109 in the NPRM, FHWA stated that ‘‘State DOTs would, through a transparent and public process, want to establish or adjust targets that strive to improve the overall performance of the Interstate and National Highway systems.’’ The North Carolina State DOT requested clarification of the meaning of ‘‘transparent and public’’ in regard to the target establishment process. They asked if FHWA considered that State DOTs are already required to hold public hearings when they select projects for the Statewide Transportation Improvement Program (STIP), and if this would satisfy the target establishment requirement. The FHWA does not prescribe specific methods for making the target establishment process transparent and public. Please refer to the final Planning Rule 13 for performance requirements for the statewide transportation plan and STIP, including any requirements to include targets in the planning documents and the methods for developing those documents. The Center for American Progress stated that MAP–21 established that a clear goal of Federal policy is to ‘‘maintain the highway infrastructure asset system in a state of good repair.’’ They added that ‘‘Congress did not intend for States to set their performance goals to include assets being in worse condition in the future than they currently are.’’ A letter from Steve Mueller Consultancy stated it would be ‘‘wrong to accept declining conditions on our roads of national importance.’’ They added that State DOTs and MPOs should reprioritize their expenditure plans to change because the declining condition is ‘‘unacceptable.’’ However, comments from AASHTO, Association of Metropolitan Planning Organizations (AMPO), Metropolitan Transportation Commission, MidAmerica Regional Council, New York 13 Final Rule on Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning (Regulatory Identification Number (RIN) 2125–AF52) on May 27, 2016, FR Vol. 81, No. 103. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5898 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Metropolitan Transportation Council, city of Seattle Department of Transportation, an anonymous citizen, and the State DOTs of Alaska, Arkansas, California, Connecticut, Florida, Idaho, Iowa, Maine, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, South Dakota, Vermont, Washington State, and Wyoming stated that State DOTs and MPOs should have the flexibility to establish targets, including targets that have condition/ performance holding steady or, in some situations, declining. They added that targets indicating declined condition/ performance are discussed in the preamble of the NPRM but not in the proposed rule itself. These commenters recommended that specific language be included in the rule. The FHWA believes that State DOTs and MPOs have the authority to establish their targets at their discretion. Moreover, as stated previously in this section, MAP–21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. The FHWA believes that this rule does not hinder the ability of State DOTs and MPOs to establish targets that have performance holding steady or, declining targets. Thus, FHWA believes that specific language describing potential target level scenarios in the regulatory language is unnecessary. Therefore, FHWA retains the language in section 490.105(a). The FHWA did add ‘‘of this section’’ to the paragraph to meet the publication requirements of the Federal Register, and improve the clarity and consistency of the text. This addition did not change the intent of the original text in the NPRM. In section 490.105(b), FHWA proposed in the NPRM that State DOTs and MPOs shall establish performance targets for the HSIP measures in accordance with section 490.209. The Alaska Department of Transportation and Public Facilities (Alaska DOT&PF) recommended that this paragraph should be removed because section 490.209 is not part of this rulemaking. The FHWA disagrees with the comment because FHWA felt this paragraph is necessary to point out target establishment requirements related to the HSIP measures that are different from this subpart. Therefore, FHWA retains the language in section 490.105(b). The FHWA did not receive any substantive comments regarding section 490.105(c), therefore, FHWA made no changes. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Discussion of Section 490.105(d) Ownership Section 490.105(d) specifies that the targets established by State DOTs and MPOs shall, regardless of ownership, represent the transportation network or geographic area, including bridges that cross State borders, that are applicable to the pavement and bridge condition measures. Title 23 U.S.C. 150(c)(3) requires the establishment of measures for State DOTs to use to assess the condition of pavements on the Interstate System, the condition of pavements on the NHS (excluding the Interstate), and the condition of bridges carrying the NHS which includes on- and off-ramps connected to the NHS for the purpose of carrying out the NHPP. Additionally, 23 U.S.C. 150(d) requires State DOTs to establish performance targets that reflect the established measures. Furthermore, 23 U.S.C. 119(e)(7) specifies State requirements when it does not achieve or make significant progress toward achieving the established performance measures targets for the NHS. To implement the statutory provisions of 23 U.S.C. 150(c)(3), FHWA proposed that the pavement condition measures in subpart C are applicable to the mainline highways on the Interstate System and on the non-Interstate NHS and the bridge condition measures in subpart D are applicable to bridges carrying the NHS which includes onand off-ramps connected to the NHS (sections 490.307 and 490.403). To ensure that the performance targets required under 23 U.S.C. 150(d) are applicable to the same extent to highways and bridges as the performance measures in sections 490.307 and 490.403, FHWA included the phrase ‘‘regardless of ownership,’’ in section 490.105(d). To implement the requirements of 23 U.S.C. 119(e)(7), section 490.109(e) provides that FHWA would determine whether or not a State DOT achieved or made significant progress toward achieving the State DOT targets, consistent with the target scope described in section 490.105(d), for the NHS NHPP targets. In the NPRM, FHWA recognized the limit of the direct impact State DOTs and MPOs can have on the performance outcomes within the State and the metropolitan planning area, respectively, and that State DOTs and MPOs need to consider this uncertainty when establishing targets. The FHWA further stated that some Federal and tribal lands contain roads and bridges carrying the NHS, which includes on- and off-ramps connected to the NHS that State DOTs would need to consider (as appropriate) when PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 establishing targets. Finally, FHWA expressed a need for State DOTs and MPOs to consult with relevant entities (e.g., Federal Land Management agencies, State DOTs, MPOs, local transportation agencies, and tribal governments) as they establish targets to better identify and consider factors outside of their direct control that could impact future condition/performance. The FHWA received comments from 19 State DOTs (Arkansas, Colorado, Connecticut, Florida, Georgia, Iowa, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Virginia, and Washington State), AASHTO, AMPO, Atlanta Regional Council (ARC), Center for American Progress, Community Planning Association of Southwestern Idaho (COMPASS), National Association of Regional Councils (NARC), National Center for Pavement Preservation, NYMTC, Association of Texas Metropolitan Planning Organizations (TEMPO), and an anonymous commenter 14 generally indicating that State DOTs and MPOs have no authority or control over maintenance and/or investment decisions on some of the assets on NHS. Therefore, State DOTs and MPOs should not be held responsible for the reporting of data, target establishment, and the condition of these assets (i.e., significant progress determination). The letters from the Connecticut, Virginia, and Washington State DOTs and AASHTO argued that State DOTs may not be able to legally collect data on assets they do not own. The AASHTO, AMPO, ARC, and the Mississippi and Tennessee State DOTs recommended that each agency (e.g., Federal Government, State DOT, tribal government, local agency, transit agency, and tolling authority) that has ownership of an NHS facility should report on and be held accountable for their portion of the system. As stated above, the statutory provisions under 23 U.S.C. 150(c)(3) require the establishment of measures for ‘‘States to use to assess (I) the condition of pavements on the Interstate System; (II) the condition of pavements on the [NHS] (excluding the Interstate); [and] the condition of bridges on the [NHS]’’ for the purpose of carrying out the NHPP. Also, 23 U.S.C. 150(d) requires States to establish performance targets that ‘‘reflect the established measures.’’ The MAP–21 also provides a description of the limits (or components) of the Interstate System and National Highway System in 23 14 FHWA–2013–0053–0135. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations U.S.C. 103(c) and 23 U.S.C. 103(b), respectively, and defines the terms ‘‘States’’ and ‘‘MPOs’’ in 23 U.S.C. 101(a)(25) and 23 U.S.C. 134 (b), respectively. This statutory language in MAP–21 prescribes the applicability of the NHPP under 23 U.S.C. 119 and the applicability of performance measures and the scope of performance targets under 23 U.S.C. 150. Considering this statutory language, MAP–21 requires that the performance management requirements (23 U.S.C. 150) and NHPP (23 U.S.C. 119) apply to the entire NHS and Interstate System and not to a subset of the NHS (e.g., State DOT owned or operated Interstate System, State DOT owned or operated National Highway System), as the commenters would prefer. The MAP–21 does not define the terms ‘‘State’’ or ‘‘MPO’’ for purposes of 23 U.S.C. 150 and 119 as something other than already defined elsewhere in MAP–21. Accordingly, FHWA retains the language in section 490.105 (which requires that State DOTs and MPOs establish targets for the entire NHS and Interstate System within the State or metropolitan planning area, regardless of ownership). As stated in the NPRM, FHWA recognizes that there is a limit to the direct impact State DOTs and MPOs can have on the performance outcomes within the State and the metropolitan planning area, respectively. The FHWA encourages State DOTs and MPOs to consult with relevant entities (e.g., Federal Land Management Agencies, local transportation agencies, and tribal governments) as State DOTs and MPOs report performance data and establish targets. This will allow for a better assessment of the condition of pavements and bridges on the entire NHS and better identify and consider factors outside of their direct control that could impact future condition/ performance. In section 490.105(d), FHWA added the phrase ‘‘of this paragraph’’ to improve the clarity and consistency of the text. This addition did not change the intent of the original text in the NPRM. In section 490.105(d)(1), FHWA made an editorial correction and replaced the word ‘‘areawide’’ with ‘‘area wide.’’ The FHWA added cross reference numbers to section 490.105(d)(1)(i) through (iii) to clarify the specific section that corresponds to each measure. The original intent of the section did not change. Section 490.105(d)(2) is reserved. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Discussion of Section 490.105(d)(3) NHS Limits In section 490.105(d)(3), FHWA proposed requiring State DOTs to declare and describe NHS limits in their Baseline Performance Period Report at the beginning of each performance period for the purpose of target establishment, reporting, and progress evaluation and significant progress determination. To ensure consistency of network for target establishment, reporting, and progress evaluation and significant progress determination, the proposed language in section 490.105(d)(3) further specified that any changes in NHS limits during a performance period would not be accounted for until the following performance period. As explained in the NPRM, FHWA proposed this methodology because it recognized that if NHS limits changed after a State DOT establishes its targets, actual measured performance of the transportation network within the changed NHS limits would represent a different set of highways as compared to what was originally used to establish the target. As a result, this difference could impact a State DOT’s ability to make significant progress toward achieving targets. The FHWA received individual letters from ARC, Cemex USA, Oregon DOT, and Texas DOT and a joint letter from the ACPA and PCA in relation to dealing with changes in NHS limits during a performance period. The letter from Texas DOT stated that the proposed approach in dealing with NHS limit changes may cause ‘‘overly burdensome’’ bookkeeping to keep track of NHS network changes. A similar comment was found in the joint letter from ACPA and PCA and the letter from Cemex USA which stated that the proposed method does not take into consideration new pavements or additional lanes constructed, thereby inadvertently penalizing States for expanding the NHS as a means of upgrading performance. They recommended that the measures should reflect the changes in NHS limits. They also added that since the proposed measures are percentage-based, measures reflecting NHS changes would accurately take into consideration improvements made without ‘‘artificially altering’’ performance indicators. The Oregon DOT commented that the proposed approach appears to be too ‘‘inflexible’’ and may not reflect how investment decisions are actually made during the performance period due to changing route priorities. They added that the proposed approach ‘‘looks PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 5899 backward in the mirror rather than forward which is needed to incorporate up to date planning and policy.’’ Finally, ARC agreed with the proposed approach that a baseline network must be identified and ‘‘frozen’’ for purposes of a reporting cycle, but they suggested that at regular intervals (i.e., 2 years), each State DOT should be permitted to adjust their networks and targets as they feel appropriate in collaboration with FHWA. The ARC commented that permitting the network to change on a regular basis does create a slight ‘‘apples to oranges’’ problem with analyzing long-term progress, but added that changes to the NHS network in reality are likely to be ‘‘infrequent and minimal’’ in impact when compared to the overall network. Some additional comments related to the NHS limits were received by FHWA. The TEMPO and Texas DOT commented that the criteria used to identify the NHS are still being developed. They added that if this issue is not addressed before reporting and evaluation deadlines are implemented, State DOTs and MPOs could expend significant resources collecting, analyzing, and maintaining data that is not part of the final NHS. They also indicated that some portions of the NHS will not be included in the performance management effort resulting in ‘‘missing’’ data segments. The TEMPO and Texas DOT recommended FHWA should not set deadlines for reporting on and evaluating performance measures until the NHS has been established nationwide and accepted by FHWA. The Seattle DOT made similar comments that before imposing NHSspecific regulatory requirements, FHWA should reassess current NHS designation criteria based on functional classification to consider critical routes based on multiple criteria such as person trip volumes rather than on vehicle miles traveled. The FHWA evaluated the arguments made by commenters regarding the approach for dealing with potential NHS limits changes during a performance period. The FHWA recognizes that NHS limits will directly impact the performance data collection coverage, measure calculation, the extent of targets, significant progress determination, and determination of minimum levels for condition of pavements and bridges. The FHWA agrees with the comments from ACPA, Cemex USA, PCA, and Texas DOT that the proposed approach would exclude realigned and newly constructed NHS roads/lanes in the measure calculation as a means of improved condition/ E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5900 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations performance. In addition to the impacts of NHS expansion, FHWA examined NHS contraction. In case of a NHS contraction, the approach proposed in the NPRM would have required State DOTs to report metrics for the part of NHS no longer designated as NHS for the entire performance period. Moreover, for both expansion and contraction cases, FHWA anticipates that communicating and explaining to the general public the condition/ performance of NHS based on previous NHS limit (i.e., baseline) would be particularly difficult. In addition to evaluating the comments, FHWA analyzed historical changes in the NHS network using HPMS data for each State. Based on the historical data, in general, FHWA found that NHS network changes are relatively small except when NHS expansion was required under MAP–21. In such case, FHWA plans to issue guidance to deal with mandated changes in NHS limits for implementing performance management. After consideration of the comments and the issues associated with the proposed approach dealing with the NHS limit changes, FHWA revised section 490.105(d)(3) in the final rule. The State DOTs are no longer required to declare and describe NHS limits in their Baseline Performance Period Report so the changes in NHS limits during a performance period would be accounted for. Since the National Highway System Data Item in HPMS and the Highway System of the Inventory Route Data Item in NBI are required to be reported to FHWA annually together with condition metric data, NHS limits for pavement condition measures will come from the same dataset submitted to HPMS in the same year as the condition metric data is submitted. The NHS designation for bridge condition measures will come from the same NBI data set as the condition metric data of the same year. Accordingly, FHWA removed section 490.107(b)(1)(ii)(E) because State DOTs no longer have to declare and describe NHS limits in their Baseline Performance Period Report. Also, FHWA amended section 490.109(d)(4). The NHS information for the baseline conditions, for the purpose of the significant progress determination of the achievement of the pavement and bridge condition targets, will come from the data reported in HPMS and NBI in the year in which the Baseline Period Performance Report is due to FHWA. The FHWA believes that the revised approach will eliminate the burden of bookkeeping of the multiple data sets by VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 State DOTs and MPOs and will improve communicating the performance with the public. The FHWA also believes that it will make the NHS extent consistent with other performance publications of State data (e.g., Highway Statistics 15 and Condition and Performance Report to Congress 16). Since the calculated measure reflects the NHS limit change, States DOTs and MPOs should consider anticipated NHS limit changes when establishing their targets. Discussion of Sections 490.105(e)(1) and 490.105(f)(1) Implementation Timeline for State DOTs and MPOs The FHWA proposed the requirements for State DOT and MPO performance targets in sections 490.105(e) and 490.105(f), respectively. Section 490.105(e)(1) specified the schedule for State DOT target establishment as ‘‘not later than 1 year of the effective date of this rule and for each performance period.’’ Also in the NPRM, section 490.105(f)(1) specified a schedule for MPO target establishment as ‘‘no later than 180 days after the respective State DOT(s) establishes their targets.’’ The proposed regulatory language specifying target establishment schedules came directly from the statutory language in MAP–21.17 Accordingly, FHWA proposed a schedule in section 490.107(b) for State DOT target and progress reporting as the first report (i.e., State Biennial Performance Report) that would be due to FHWA by October 1, 2016 and subsequent report due every 2 years on October 1 thereafter. The October 1, 2016, and subsequent biennial due dates are a statutory requirement.18 To implement these statutory requirements in a consistent manner, FHWA proposed a definite period of time (i.e., performance period) during which condition/performance would be measured, evaluated, and reported. The FHWA proposed a consistent time period of 4 calendar years that would be used to assess pavement and bridge conditions. The FHWA carefully examined this proposed time period so that it aligns with the timing of the biennial performance reporting requirements under 23 U.S.C. 150(e). This proposed time period is calendar year based so that it is consistent with data reporting requirements currently in 15 Highway Statistics (FHWA): https:// www.fhwa.dot.gov/policyinformation/statistics.cfm. 16 Conditions and Performance Report to Congress (FHWA): https://www.fhwa.dot.gov/ policy/2013cpr/. 17 23 U.S.C. 150(d)(1) and 23 U.S.C. 134(h)(2)(C). 18 23 U.S.C. 150(e). PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 place to report pavement and bridge conditions. During the development of the NPRM, FHWA anticipated the final rule for the proposal to be effective no later than October 1, 2015. The Oregon DOT commented that the effective date would be difficult to meet and suggested FHWA consider a delayed effective date of January 2017. As stated in the preamble of the NPRM, the October 1, 2015 date would have allowed for at least a 1-year period for State DOTs to establish targets so that they can be reported in the first biennial performance report (i.e., Baseline Performance Period Report) that would be due to FHWA by October 1, 2016. The FHWA also stated in the preamble of the NPRM that it recognizes that if the final rule is effective after October 1, 2015, the due date to report State DOT targets for the first performance period may need to be adjusted, or FHWA would need to issue implementation guidance that would provide State DOTs a 1-year period to establish and report targets. The FHWA received numerous comments that the 1-year duration between the effective date of this rule and the first reporting of targets (i.e., Baseline Performance Period Report for the first performance period) is difficult for State DOTs and MPOs to meet. The AASHTO and Connecticut DOT commented that the process to collect/ analyze data, understand the trends, and establish targets will require additional time and that the submission of the first Baseline Performance Period Report by October 1, 2016, is ‘‘truly unrealistic.’’ The AASHTO and Mississippi and Connecticut DOTs argued that the opportunity for ‘‘cold weather States’’ to collect data for baseline condition/ performance of 2015 is limited because all data has to be collected between the effective date (October 1, 2015) and the end of calendar year 2015 for 2016 condition/performance reporting. The North Dakota DOT and Seattle DOT made similar comments as AASHTO did. The Michigan and Minnesota DOTs expressed their support for the AASHTO comments. The Texas DOT commented that State DOTs will need more time to transition and measure the metrics required that are not currently collected, and to develop some history to establish the targets, especially for the Interstate since the proposed metric is based on the overall condition. The Mississippi DOT commented that many State DOTs already have multiyear contracts in place for their data collection. They said that the changes related to the expanded NHS and E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations additional data requirements would make it impossible for many State DOTs to meet the proposed reporting timelines. Furthermore, they said that if additional data required under this rule is obtained, State DOTs will not have the historical data to analyze trends to effectively establish targets. The AMPO, COMPASS, and TEMPO made similar comments that the timeline in NPRM for identifying baseline condition/ performance and reporting targets for the first performance period is ‘‘aggressive.’’ They added that the proposed timeline affords little ability or is insufficient for States to identify reasonably attainable targets. The Southeast Michigan Council of Governments (SEMCOG) commented that the additional and unfamiliar data requirements (i.e., cracking, faulting, rutting, and roughness data) make it difficult to meet the accelerated timelines for collecting the data. They noted that the NPRM assumes that they will be able to work with the Michigan DOT and finish the reporting within 1 year. They commented that the reporting time will actually be much less than 1 year, especially in the first year. The Missouri DOT stated that including cracking, rutting, and faulting metrics under this rule needs to be delayed until national standards are developed and vetted through a quality control process. They added that these metrics will result in additional costs to collect, analyze, and manage the data. The New York State DOT cited that FHWA intends to use HPMS as a primary mechanism to report pavement performance data. The New York State DOT recommended that State DOTs be provided adequate time and resources to implement the necessary process and system changes. The Michigan DOT added that their pavement performance management ‘‘took years to develop, test, and refine’’ and recommended an alternative implementation schedule and process until the national measures mature enough that State DOTs become confident using them as the basis for investment decisions. The NYMTC ‘‘strongly objected’’ to the proposed October 1, 2015, effective date for the data collection and reporting requirements associated with the performance measure rules because they do not have sufficient information available about current pavement conditions using the proposed measures and data collection methods. They also added that, given the constraints on available data and analysis tools, they cannot predict the future conditions. The AASHTO and Connecticut and Tennessee DOTs suggested providing VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 State DOTs the opportunity to extend the deadline if they demonstrate that they are working toward and making progress in adopting all requirements. The AASHTO and Connecticut and North Dakota DOTs commented that the coordination for establishing targets will require additional time because it encompasses a wide range of performance areas that can be influenced by local and regional needs. The Michigan State Transportation Commission and Michigan Asset Management Council commented that FHWA must allow State DOTs sufficient time to adequately coordinate with local agencies after the rules are finalized but before implementation begins. The AASHTO and Connecticut and Oregon DOTs recommended a 24-month phase-in period between the effective date and the first target reporting for the Interstate pavement and bridge condition measures in sections 490.307(a)(1) and (2) and 490.407(c). And, they recommended a 48-month phase-in period between the effective date and the first target reporting for the Non-Interstate NHS pavement condition measures in section 490.307(a)(3) and (4). The Alaska DOT&PF recommended at least a 4-year period to report all new data under this rule since the NHS has also changed with MAP–21. The AASHTO and Connecticut and Oregon DOTs also recommended delaying significant progress determination under section 490.109. The NYMTC also asked FHWA to consider the impacts of this proposed rule on State DOTs and MPOs that must adjust their planning and programming processes to the new requirements under this rule. The NYMTC requested that FHWA lengthen the amount of time before penalties are imposed so that State DOTs and other agencies could make adjustments while they have the maximum amount of flexibility in the use of available funding. The AASHTO and Connecticut and New Jersey DOTs commented that the time frame for enacting minimum condition level determination for bridges under section 490.413 is too short. They commented that State DOTs will have no time to assess their current situation and then implement reasonable projects to meet the 10 percent threshold. The AASHTO and Connecticut and Oregon DOTs recommended not determining minimum condition levels under sections 490.315 and 490.411 until 48 months after the effective date. The FHWA appreciates the comments on the proposed timeline. The FHWA understands that collection of new data items, development of tools, PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 5901 coordination, planning process adjustments, and integrating with other regulatory requirements to implement this rule will take time and effort for State DOTs. The FHWA recognizes that data required in section 490.309 for the pavement condition measures is new to some State DOTs. Therefore, FHWA amended the proposed data collection timeline for the pavement condition measures to reflect the effective date of this final rule. (See discussion section for section 490.309(a) for data collection timeline for the pavement measures.) Accordingly, FHWA retains phase-in requirements related to the targets for Interstate pavement measures and significant progress determination for those targets, as provided in sections 490.105(e)(1) and 490.109(e)(3), respectively, so that the effective date of this final rule is reflected. The FHWA also retains the transition of nonInterstate pavement measure in section 490.313(e) as proposed. In addition to the challenges associated with new data items, FHWA recognizes that State DOTs are challenged with NHS expansion, lack of historic data and analytical tools for establishing targets, additional coordination requirements, adjustment to their planning process, and integrating with other regulatory requirements. However, as stated previously, State DOT target establishment ‘‘not later than 1 year of the effective date of this rule’’ in section 490.105(e)(1) is a statutory requirement under 23 U.S.C. 150(d). The date for reporting progress toward targets of October 1, 2016 is also a statutory requirement in 23 U.S.C. 150(e). Therefore, FHWA cannot delay the due date of State DOT target establishment or reporting on performance targets. Since this rule is being issued and effective after October 1, 2016, FHWA issued guidance 19 on the Initial State Performance Report on August 31, 2016, to provide State DOTs the opportunity to comply with the statutory deadline for the first performance report under 23 U.S.C. 150(e). In this guidance, FHWA recognized that State DOTs would not have established targets for the measures in this rule. The FHWA simplified the reporting requirement by only requiring a description of the planned processes for target establishment and coordination with relevant MPOs and other agencies that will occur in the selection of targets. The FHWA has amended the implementation timeline to reflect the 19 FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/ 160831.cfm. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5902 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations effective date of this final rule. (See subsequent discussion in this section for more details on timeline adjustments.) In response to the comments from AASHTO and Connecticut and New Jersey DOTs above, FHWA disagrees that the time frame for enacting minimum condition level determination for bridges on the NHS is too short and that State DOTs will have no time to assess their current situation and then implement reasonable projects to attempt to meet the 10 percent threshold. The MAP–21 was enacted in October 2012. In September of 2012, FHWA provided initial guidance through its MAP–21 Bridge Q&A Web site 20 on how FHWA intended to implement the statutory requirements under the 23 U.S.C. 119(f)(2). Additionally, State DOTs are familiar with the classification of structurally deficient as it had been used for decades to implement the Highway Bridge Program. Because of this familiarity, State DOTs are well aware of their current situation in regards to structurally deficient bridges on the NHS. Based on FHWA guidance provided on the MAP–21 Bridge Q&A Web site, which describes the implementation schedule of the minimum condition level determination, and the familiarity State DOTs have with the classification of structurally deficient, State DOTs have had sufficient time to take actions to meet the 10 percent threshold. Because of its long implementation history and State DOTs’ familiarity with the classification of structurally deficient bridges, FHWA believes that implementing the requirement of 23 U.S.C. 119(f)(2) does not depend on the effective date of this rule. Moreover, FHWA has been examining NBI data that State DOTs have been reporting since the enactment of MAP–21 and found sufficient evidence that State DOTs are taking actions to meet the statutory requirement. For example, if the 2013 NBI data was used as the baseline for structurally deficient bridges carrying the NHS, then there were potentially 13 State DOTs that would have been affected by the penalty if the trend of percentage structurally deficient deck area of greater than 10 percent continued for another 2 years. However, based on the 2014 NBI data, the number of State DOTs that would be affected by the penalty dropped to eight. Based on 2015 NBI data, the number dropped even further to six State DOTs. This dramatic change in the potential number of States leads FHWA to 20 Question and Answer #2 at: http:// www.fhwa.dot.gov/map21/qandas/qabridges.cfm. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 conclude that some State DOTs have taken action in addressing their NHS structurally deficient bridges. Therefore, FHWA believes that a delay in implementing the 23 U.S.C. 119(f)(2) provision is not necessary. The Louisiana DOT recommended the first data collection cycle, to be used in performance analysis, be pushed back to a later date. The Louisiana DOT cited a large number of conflicts between HPMS, the AASHTO specifications, the Fiscal Management Information System (FMIS) requirements for HPMS, and the proposed rules. They commented that these conflicts will not allow an ‘‘apples to apples’’ data comparison or analysis between the current year and future years, nor among States. However, the Louisiana DOT did not identify how delaying the start of the data collection would mitigate the perceived conflicts or how anything having to do with the FMIS impacts the data reporting for HPMS. The FHWA understands that State DOTs will need some time to adjust contracts and programs to meet the data reporting requirements and the final rule has identified the first reporting dates to be 2019 for Interstate routes and 2021/2022 for non-Interstate NHS routes. A letter 21 from the State DOTs of Maine, New Hampshire, and Vermont recommended a bi-directional format to support FMIS, which intends to use HPMS data as its source. In the NPRM, FHWA proposed Interstate pavement condition data to be collected on both directions of the Interstate highway in section 490.309(b)(1)(i). However as a result of further studies,22 FHWA amended section 490.309(b)(1)(i) so that the pavement condition data collection on Interstate is only required in one direction of highway, eliminating the need for examining a bi-directional format to support FMIS and the potential discrepancies with HPMS. The AMPO and COMPASS stated that the process for amending Metropolitan Planning Agreements is a time consuming and requires considerable opportunity for public input. They recommended a timeline that could lead to more realistic targets. The AASHTO, NYMTC, and Oregon and Washington DOTs urged FHWA to delay the MPO target establishment requirement until the start of the second performance period. They argued that there will be lack of complete (i.e., full extent) performance data for cracking, rutting, 21 Docket Document FHWA–2013–0053–0096— http://www.regulations.gov/#!documentDetail; D=FHWA-2013-0053-0096. 22 ‘‘Evaluation of Pavement Conditions on the Interstate System: Preliminary Summary’’, Rada 2015. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 and faulting for the Non-Interstate NHS, where full extent data will only be collected for the second half of the first performance period, as described in sections 490.309(b)(2)(ii) and 490.313(e). They added that until complete data is collected and evaluated, the MPOs might have a difficult time understanding the complexities of this data and establishing targets. They also recommended delay because it will allow additional time for State DOTs and MPOs to further develop their collaborative efforts in response to this rule and the Asset Management Plan rule (23 CFR 515). The NARC commented that additional time for MPOs would be helpful because of the significant collaboration and the data collection requirements in this rule. The SEMCOG expressed the opinion that a piecemeal approach is being used to develop the performance measures in this rule. This approach makes it difficult to identify the total system performance requirements, the complete data needs, and costs to collect the required data and to program and implement projects to address the performance measures. The FHWA appreciates these comments and understands that implementing this rule takes time and effort for MPOs as they face similar challenges to State DOTs. In response to comments related to the Metropolitan Planning Agreement, FHWA amended the language in section 490.107(c)(1) to remove the requirement to use the agreement as the means to document how MPOs will report their established targets to their respective State DOTs. The FHWA also amended the language in section 490.105(f)(8) to remove the requirement to document the target adjustment process in the Metropolitan Planning Agreement. (See discussion sections for sections 490.105(f)(8) and 490.107(c)(1) for more details on Metropolitan Planning Agreement for MPO target adjustment and reporting, respectively.) The FHWA re-iterates that the State DOT target establishment schedule of ‘‘not later than 1 year of the effective date of this rule’’ in section 490.105(e)(1) and MPO target establishment schedule of ‘‘no later than 180 days after the respective State DOT(s) establishes their targets’’ in section 490.105(f)(1) are statutory requirements under 23 U.S.C. 150(d) and 23 U.S.C. 134(h)(2)(C), respectively. Therefore, to meet the statutory mandates, FHWA cannot delay the due date of the MPO target establishment. (See discussion on MPO implementation schedule in section 490.105(f)(1).) E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations As discussed above and in the NPRM, FHWA described its plans in the event that the final rule would not be effective until after October 1, 2015. The FHWA stated in the NPRM that, if it becomes clear that the final rule will not be effective until after October 1, 2015, FHWA would consider adjusting the first performance period in the final rule or would issue implementation guidance that would provide State DOTs a 1-year period to establish and report targets. As this rule is issued and effective after October 1, 2015, providing State DOTs less than 1 year to establish targets prior to the October 1, 2016 report, FHWA has amended the timeline in the final rule. These adjustments are necessary to ensure that State DOTs have at least 1 year between the effective date of this rule and biennial performance reporting of their target while adhering to the statutory reporting due dates 23 under 23 U.S.C. 150(e). Therefore, as stated in the NPRM, FHWA amended the due date for State DOT on reporting their targets for the first performance period from October 1, 2016, to October 1, 2018. To accommodate the amendment of the reporting date for the first performance period, FHWA adjusted the start of first performance period (and start dates for subsequent performance periods) in the final rule so that target reporting could be aligned with corresponding performance periods. Although the due date for State DOT on reporting their targets for the first performance period is October 1, 2018, this amendment does not exempt State DOTs from the October 1, 2016, report required under 23 U.S.C. 150(e). As such, FHWA issued guidance 24 on the Initial State Performance Report on August 31, 2016, to provide State DOTs the opportunity mstockstill on DSK3G9T082PROD with RULES5 23 Report no later than October 1, 2016 and biennially thereafter. 24 FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/ 160831.cfm. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 to comply with the statutory deadline for the first performance reporting under 23 U.S.C. 150(e). In this guidance, FHWA recognized that State DOTs would not have established targets for the measures in this rule. The FHWA simplified the reporting requirement by only requiring a description of the planned processes for target establishment and coordination with relevant MPOs and other agencies that will occur in the selection of targets. Since this final rule was not effective by October 1, 2015, FHWA adopted the following in this final rule: • State DOTs shall establish targets for the first performance period not later than 1 year of the effective date of this rule as specified in section 490.105(e)(1) to meet the statutory requirement in 23 U.S.C. 150(d). • The MPOs shall establish targets for the first performance period no later than 180 days after the respective State DOTs establish their targets as specified in section 490.105(f)(1) to meet the statutory requirement under 23 U.S.C. 134(h)(2)(C). • The first performance period shall begin on January 1, 2018, and shall end on December 31, 2021, and subsequent 4-year performance periods shall follow thereafter, as provided in as provided in section 490.107(b) and shown in Figure 1 below. • The State DOTs will begin collecting Interstate pavement condition data (IRI, rutting (asphalt pavements), faulting (jointed concrete pavements), and Cracking Percent) in accordance with section 490.309(b)(1) in calendar year 2018. • The State DOTs will begin collecting non-Interstate NHS pavement condition data (IRI, rutting (asphalt pavements), faulting (jointed concrete pavements), and Cracking Percent) in accordance with section 490.309(b)(2) in calendar year(s) 2020/2021. • The State DOTs shall submit their first biennial performance report (i.e., PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 5903 Baseline Performance Period Report for the first performance period) on October 1, 2018. Subsequent biennial performance reports are due every 2 years after the first biennial performance report, as provided in section 490.107(b). • The FHWA will make first significant progress determinations after State DOTs report their Mid Performance Period Progress Report for the first performance period on October 1, 2020, and biennially thereafter. • The FHWA will not make a determination of significant progress toward the achievement of 2-year targets for Interstate System pavement condition measures in calendar year 2020, as discussed in section 490.109(e)(3)(i). • To meet the statutory requirement under 23 U.S.C. 119(f)(2), FHWA will make the first minimum bridge condition level determination in calendar year 2016 (by October 1, 2016) and in calendar year 2017 (by October 1, 2017) by considering structurally deficient as a classification given to a bridge which has significant load carrying elements in Poor or worse condition, or the adequacy of the waterway opening provided by the bridge is determined to be insufficient to the point of causing overtopping with intolerable traffic interruptions. Beginning with calendar year 2018 and each calendar year thereafter, FHWA will make the minimum bridge condition level determination by considering structurally deficient as a classification given to a bridge which has any component in Poor or worse condition, as defined in section 490.405 and described in section 490.411(b). • The FHWA will make the first minimum Interstate pavement condition level determination by October 1, 2019, and each year thereafter, as provided in section 490.317. E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations The FHWA retains the language in section 490.105(e)(1), as proposed in the NPRM, because the due date for State DOT target establishment of ‘‘not later than 1 year of the effective date of this rule’’ in this paragraph is a statutory requirement under 23 U.S.C. 150(d). mstockstill on DSK3G9T082PROD with RULES5 Discussion of Sections 490.105(e)(2) and 490.105(f)(2) Target Coordination Sections 490.105(e)(2) and 490.105(f)(2) specify State DOT and MPO coordination requirements for the establishment of targets, as provided in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II). In the NPRM, FHWA sought comment on alternative approaches that could be considered to VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 effectively implement the coordination requirements under MAP–21. The Mid-America Regional Council supported the language that encourages State DOT and MPO coordination ‘‘to the extent practicable’’ in target establishment. They also encouraged FHWA to offer guidance and share best practices of coordination among neighboring States and MPOs. The New York State Association of Metropolitan Planning Organizations (NYSAMPO) supported the language in section 490.105(e)(2). They also noted that a ‘‘significant portion’’ of the NHS in New York is owned by local governments and public authorities. They pointed out that the rule is silent on coordination PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 with other owners and noted that they would support language requiring such coordination. The Orange County Transportation Authority made a similar comment and urged FHWA to include language to support MPO coordination with county transportation commissions and local DOT districts to establish targets and funding priorities, and to allow targets to be established at the sub-regional level. The Mid-America Regional Council also commented that if State DOTs choose to establish additional targets, under section 490.105(e)(3), for urbanized areas, the rule should encourage coordination with the corresponding MPOs. E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.015</GPH> 5904 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations The Florida DOT shared their coordination efforts in their letter. The Florida DOT held performance measure workshops in 2014 and 2015 for the representatives of various State DOT Offices, Federal Transit Administration, MPOs, and FHWA. They stated that the workshops resulted ‘‘in a rich dialogue with numerous ideas and opinions conveyed through discussion and in writing.’’ The Florida DOT also indicated in their letter that a Performance Measurement Collaboration Task Force has been formed to coordinate performance measurement activities with FHWA, FTA, Florida’s 27 MPOs, and the Florida Metropolitan Planning Organization Advisory Council. According to Florida DOT, the task force will continue to be used to exchange information during the rulemaking process and implementation. The Florida DOT also indicated that they plan to examine opportunities for data sharing, coordinated target establishment, and combined reporting where practical and efficient. They added that they will look for better ways to communicate the importance of good transportation performance to their State’s economy and their quality of life. The FHWA appreciates the Florida DOT sharing their coordination efforts. The Illinois DOT commented that the portions of NHS which are not under the jurisdiction of the State DOT will require coordination between Illinois DOT and MPOs on the selection of targets to ensure consistency, to the maximum extent practicable. The AASHTO and the Connecticut and Oregon DOTs commented that performance measurement and management of NHS pavements and bridges are not the only part of the planning effort State DOTs must undertake in order to deliver a successful program to the public. They emphasized that other tasks and the level of effort and coordination with local agencies, the public, and other stakeholders is ‘‘substantial.’’ They urged FHWA to recognize that the entire process to collect/analyze data, understand the trends, and establish targets needs to be made across a wide range of performance areas that can be influenced by local and regional needs. Finally, they commented that ‘‘coordination takes time.’’ The AASHTO and the Oregon and Washington DOTs disagreed with the phrase ‘‘to ensure consistency, to the maximum extent practicable’’ in sections 490.105(e)(2) and 490.105(f)(2). They recommended that the regulatory text change to ‘‘to facilitate or encourage consistency.’’ They argued that this VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 modification would reduce the chances of unreasonable expectations on State DOTs during the implementation. An anonymous commenter 25 stated that coordination between key stakeholders (such as MPOs) and State DOTs needs to be more active. The commenter argued that requiring consultation with MPOs is not enough, and collaboration in goal development is important. Another anonymous commenter 26 noted the importance of performance and funding for the entire statewide-non-Interstate NHS and commented that a State DOT should not be allowed to give preference to funding projects on highways within their jurisdiction merely because they are within their jurisdiction. The North Carolina DOT commented that most of the NHS in North Carolina is owned and operated by North Carolina DOT. They inquired whether or not coordination is ‘‘relevant’’ for North Carolina DOT. The Northeast Ohio Areawide Coordinating Agency commented that, unless there is a financial rationale or specific policy to coordinate targets, coordination is unlikely, particularly as State laws varies regarding the responsibility of asset management. The Southern California Association of Governments (SCAG) recommended clear provisions be provided that outline the exact coordination process between State DOTs and MPOs toward the establishment of performance targets. A private citizen, Joyce Dillard, commented that the development of consistent targets across a State can only be achieved when the targets take into account State required plans already in existence, such as the General Plan and its Circulation Element. Finally, the NARC commented that the success of the national performance management program will rely in part on the extent to which State DOTs and their MPOs are able to work together, establish common ground, and find complementary purpose. They made reference to the discussion of section 490.105(e)(2) in the NPRM which states ‘‘FHWA recognizes the need for State DOTs and MPOs to have a shared vision on expectations for future condition/ performance in order for there to be a jointly owned target establishment process.’’ The NARC stated that ‘‘in some cases, this shared vision is a difficult—if not impossible—standard.’’ The NARC encouraged FHWA to foster a ‘‘shared vision,’’ and recommended that FHWA ‘‘take a deeper look’’ into case studies, peer exchanges, and other 25 Comment 26 Docket PO 00000 #: FHWA–2013–0053–0140. Document FHWA–2013–0053–0135. Frm 00021 Fmt 4701 Sfmt 4700 5905 input from State DOTs and MPOs in coordination for the establishment of targets. Finally, NARC commented that this is an opportunity to explore existing relationships between State DOTs and MPOs, and create stronger ties between them. The FHWA appreciates the comments received regarding coordination. The FHWA plans to provide technical assistance to the State DOTs and MPOs through a number of means, including the issuance of guidance, conducting peer reviews and workshops, sharing best practices, and conducting training on topics such as target setting, implementation of performance-based planning and programming, interagency coordination, data collection, and performance progress reporting. The language in sections 490.105(e)(2) and 490.105(f)(2) mirror the statutory language in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II) and the regulatory language in 23 CFR 450.206(c)(2) and 23 CFR 450.306(d)(2)(iii) of the final Planning Rule. The FHWA believes the phrase ‘‘selection of targets’’ in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II) applies to adjustment of targets. The FHWA expects State DOT and MPO coordination requirements to be carried out for both establishment and adjustment of State DOT and MPO targets in sections 490.105(e)(2) and 490.105(f)(2). The final Planning Rule considers performance target selection as part of statewide and metropolitan transportation planning processes. Therefore, as part of the target selection process, State DOTs are required to consider the concerns of relevant Federal Land Management agencies and Indian tribal governments, and cooperate with affected local elected and appointed officials with responsibilities for transportation (or applicable regional transportation planning organization(s) identified in 23 CFR 450.208(a)), when selecting performance targets. (See 23 CFR 450.206, 23 CFR 450.208, and 23 CFR 450.306 of the final Planning Rule for more details on planning and coordination processes.) The FHWA also encourages State DOTs to coordinate with relevant MPOs and other stakeholders identified in 23 CFR 450.208(a) when establishing additional targets, described in section 490.105(e)(2). The FHWA amended language in sections 490.105(f)(8) and 490.107(c)(1) to remove the requirement to document the target adjustment process and reporting of targets in the Metropolitan Planning Agreement. The FHWA replaced it with a requirement to E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5906 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations document the target adjustment process in a manner that is mutually agreed upon by State DOTs and MPOs. (See discussion sections for sections 490.105(f)(8) and 490.107(c)(1).) The FHWA recognizes that the performance management of NHS pavements and bridges are not the only part of the planning effort State DOTs and MPOs are required to undertake. The FHWA also recognizes that the level of effort and coordination with local agencies, the public, and other stakeholders is substantial and takes time. As discussed in section 490.105(d), the target scope (or the extent of target) for a State DOT consists of the entire NHS within the State, and the target scope for an MPO is the entire NHS within the metropolitan planning area. For this reason, State DOTs and MPOs are required to establish targets for the entire system within their respective areas, regardless of who owns the system. The section also requires close coordination between State DOTs and MPOs in selection of State DOT and MPO targets. In response to the comments from North Carolina DOT and Northeast Ohio Areawide Coordinating Agency, coordination in the target selection process is required under 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II), as stated above. Therefore, coordination is not an option, but it is a requirement under statute. Moreover, coordination for target selection is not bound by ownership of assets or asset management responsibilities, but must be consistent with coordination requirements in the statewide and metropolitan transportation planning processes. In response to SCAG’s comments, FHWA believes that the exact coordination process for target selection of an area should be determined by the relevant State DOTs and MPOs in that area. To help establish this process, FHWA plans to provide best practices, Webinar opportunities, and other resources on target selection coordination processes so that the coordination process is effectively implemented. As stated earlier, the phrase ‘‘to ensure consistency, to the maximum extent practicable’’ in sections 490.105(e)(2) and 490.105(f)(2) is statutory language in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II). The FHWA retains the language in sections 490.105(e)(2) and 490.105(f)(2), as proposed in the NPRM. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Discussion of Section 490.105(e)(3) Additional Target The FHWA proposed to allow State DOTs to establish additional targets for any of the proposed measures in subparts C and D, beyond the required statewide target. The State DOT may establish additional targets for any number and combination of urbanized areas and a target for the non-urbanized area for any or all of the proposed measures. This is intended to give State DOTs flexibility when establishing targets, and to aid State DOTs in accounting for differences in urbanized areas and the non-urbanized area. For example, a State DOT could choose to establish additional targets for a single urbanized area, a number of urbanized areas, or all urbanized areas separately or collectively. For State DOTs that want to establish a non-urbanized target, it would be a single target that applies to the non-urbanized area statewide. In the NPRM, FHWA sought comments on optional additional targets for urbanized and non-urbanized areas. The FHWA also sought comments on any other flexibility it could provide related to the voluntary establishment of additional targets. The AASHTO and the Connecticut and New York DOTs supported the proposed approach for optional additional targets for urbanized and non-urbanized areas beyond the required statewide target. The AASHTO stated that State DOTs will voluntarily establish additional targets for various geographical boundaries on an ad hoc basis, working with their MPOs and local agencies. The AASHTO added that no other flexibilities need to be provided except that the establishment of additional targets should be at the sole discretion of State DOTs and not encumbered by Federal reporting or other requirements. The Connecticut and New York DOTs echoed AASHTO’s comment. The Georgia DOT commented that the proposed approach provides adequate flexibility in setting targets that will allow differentiation between urban and rural areas. The New Jersey DOT recommended allowing additional targets based on jurisdictional limits of each of the various stewards of the NHS and bridge ownership boundaries. The Oregon DOT recommended allowing States to establish targets of importance to them to provide flexibility in additional targets. The Tennessee DOT stated that they do not believe that it is necessary to provide for separate targets for urbanized and non-urbanized areas at this time. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 The Texas DOT commented that optional targets for Texas may be needed for operational needs, but not for collective reporting. They added that many factors could come into play in optional targets, such as climate zones, subgrade, massive industry expansion (e.g., energy sector). The Texas DOT incorporates these factors into district level target setting as it relates to pavement asset condition. They noted that these district level targets accumulate to one State target. The Missouri State DOT commented that the additional targets should only be considered ‘‘if the MPOs desire to have a different target than the State DOT.’’ The Mid-America Regional Council and NARC commented that when a State DOT chooses to establish urbanized and non-urbanized area targets, State DOTs should be encouraged or required to coordinate those targets with relevant MPOs and rural transportation planning organizations. The TEMPO recommended usage of the terms ‘‘rural,’’ ‘‘urban,’’ and ‘‘urbanized’’ areas, and recommended urbanized area targets for the NHS. The NYMTC, PSRC, and Joyce Dillard recommended that additional flexibility should be provided for State DOTs to establish targets for metropolitan planning areas or urbanized areas. Joyce Dillard also suggested that MPO areas should be viewed in sub-areas for Transportation Management. The NYMTC added that one benefit of using metropolitan planning areas is that the boundaries are likely to change less frequently than urbanized area boundaries, allowing for a longer period of time during which measures would be evaluated on a consistent basis. Questions were asked by several agencies regarding the additional targets. The Florida DOT asked the reason for the requirements in section 490.105(d)(3) for declaring and describing urbanized area boundaries within the State boundary in the Baseline Performance Period Report (required by section 490.107(b)(1)) for the additional targets. The Colorado DOT questioned the advantages of setting additional targets when these targets are not subject to significant progress determinations under section 490.109(e). Similarly, the NEPPP questioned the incentive of establishing additional targets. The FHWA appreciates the comments on the voluntary establishment of additional targets and on other flexibilities it could provide. The FHWA strongly encourages State DOTs to monitor condition/performance by different geographic areas (e.g., E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 jurisdiction, population, functional class, planning, terrain, and climate) to better understand the location dependency of condition/performance. The FHWA encourages State DOTs to establish targets beyond the required statewide targets where they feel necessary. The FHWA agrees with the comments from AASHTO and the Connecticut and New York State DOTs that State DOT established targets beyond the required statewide targets are at the sole discretion of State DOTs. This agreement was evident in the NPRM and in this final rule because the language does not require State DOTs to establish these targets. However, if a State DOT decides to establish urban or non-urbanized area targets beyond the required statewide targets, FHWA expects that State DOT to meet the coordination and reporting requirements under sections 490.105(e)(2) and 490.107(b). Although urban or non-urbanized area targets are not subject to significant determination under section 490.109, FHWA feels that the coordination and reporting requirements are necessary because once those targets are reported to FHWA (and become available to the public), the transparency and accountability of those targets will be expected by the public. For these reasons, FHWA retains the language in sections 490.105(e)(3)(i), (e)(3)(ii), and (e)(3)(iv) so that State DOTs have the maximum flexibility in monitoring condition/performance by different geographic areas and establishing targets beyond the required statewide targets, while preserving State DOT discretion to establish those targets. However, FHWA revised the language in section 490.105(e)(3)(iii) by striking the phrase ‘‘available to FHWA’’ in the paragraph because the urbanized area data reporting requirement is already covered in section 490.103(b). Discussion of Section 490.105(e)(4) Performance Period Length and Schedule Alignment The FHWA proposed a definitive performance period while recognizing that planning cycles and time-horizons for long-term performance expectations differ among State DOTs and MPOs. The FHWA understands that, although differences exist, it is necessary to provide for consistency in performance periods and proposed a 4-year performance period considering: (1) Providing for a link between the interim short-term targets (i.e., 2-year and 4-year time horizons) to individual State DOT’s long-term performance expectations as part of a performance-based planning and programming process; (2) ensuring the time horizon is long enough to allow VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 for condition/performance change to occur through the delivery of programmed projects; (3) aligning the schedule of reporting on targets and the evaluation of progress toward achieving the targets with the biennial performance reporting requirements under 23 U.S.C. 150(e); and (4) reporting targets using a consistent performance period as part of the evaluation of State DOT effectiveness in the performancebased planning process provided to the Congress, as required by 23 U.S.C. 135(h). Therefore, 2-year targets represent the anticipated or intended condition/performance level at the midpoint of each performance period, and 4-year targets represent the anticipated or intended condition/ performance level at the end of each performance period. As stated in the NPRM, it is important to emphasize that established targets (2-year targets and 4year targets) should be considered as interim conditions/performance levels that lead toward the accomplishment of longer term performance expectations in a State DOT’s long-range statewide transportation plan 27 and NHS asset management plans.28 Two main issues on the proposed 4year performance period were raised by the commenters: (1) The 4-year performance period duration is too short for noticeable changes in the condition of bridges and pavements and for demonstrating the impact of the investments 29 and (2) the timeline of the performance periods does not align with planning cycle of State DOTs and MPOs.30 The ASCE commented that the proposed regimen of performance period and progress reporting ‘‘is in accordance with the intent of MAP–21 and will help document the strides that States are making to improve asset conditions.’’ They also recommended 27 23 U.S.C. 135(f). U.S.C. 119(e). 29 AASHTO; Transportation for America; the Southeast Pavement Preservation Partnership; the State DOTs of California, Connecticut, Idaho, Iowa, Minnesota, Montana, New Jersey, New York State, North Dakota, South Dakota, Texas, and Wyoming; Rural Counties Task Force; the Organ County Transportation Authority; the Oversight Committee for California local Streets and Road Needs Assessment; TEMPO; the Metropolitan Transportation Commission, the Southern California Association of Governments; Nashville Area MPO. 30 State DOTs of Connecticut, New York, and Texas, the National Association of Regional Councils, the New York State Association of Metropolitan Planning Organizations, the New York Metropolitan Transportation Council, the Association of Metropolitan Planning Organizations, Atlanta Regional Commission, the Association of Texas Metropolitan Planning Organizations, and the Community Planning Association of Southwestern Idaho. 28 23 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 5907 that FHWA pay particularly close attention to the investment strategies section of progress reviews to help ensure that States are prioritizing investment decisions in a way that will help them reach their intended targets in accordance with national goals. Nicholas Cazares 31 commented that the proposed approach of performance period is ‘‘reasonable.’’ The Center for American Progress commented that a 4year performance period is of adequate length to allow States to ‘‘make or fail to make progress.’’ However, AASHTO and the California, Connecticut, and Texas DOTs commented that the condition of bridges and pavements does not change a great deal in relatively short time periods (i.e., 2-year and 4-year). Additionally, the AASHTO and the Texas DOT provided an example of ‘‘a bridge built with a design life of 75 years does not normally show a great amount of change from one inspection cycle to the next (every 2 years).’’ The AASHTO, Metropolitan Transportation Commission, Nashville Area MPO, Orange County Transportation Authority, Oversight Committee for the California Local Streets and Road Needs Assessment, Rural Counties Task Force, SCAG, and TEMPO and the State DOTs of California, Colorado, Connecticut, Iowa, New Jersey, and Texas commented that ‘‘planning, programming, project delivery, data collection, data reporting of projects’’ typically takes much longer than 4 years, so the impact of infrastructure investment programs on condition/performance would be difficult to demonstrate with short-term targets (2-year and 4-year targets). The AASHTO and Connecticut and New York DOTs recommended providing State DOTs and MPOs the flexibility to voluntarily establish long-term targets (10 years or more) outside of the regulatory framework and recommended report progress on a 4- or 5-year interval. The Metropolitan Transportation Commission, Nashville Area MPO, Orange County Transportation Authority, the Oversight Committee for the California Local Streets and Roads Needs Assessment, and the Rural Counties Task Force recommended target establishment cycles between 5 and 10 years. The SCAG and TEMPO recommended that performance periods should be at least 10 years. The California and Texas DOTs recommended a 10-year performance period with a 5-year mid performance period progress report. The New York DOT also suggested a 5-year 31 Docket E:\FR\FM\18JAR5.SGM Letter FHWA–2013–0053–0078. 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5908 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations reporting cycle. The North Carolina DOT suggested 6- to 8-year goals for the bridges. The State DOTs of Idaho, Montana, New York, North Dakota, South Dakota, and Wyoming recommended a longer reporting cycle. Transportation for America recommended the reporting period be 8 or 10 years. The letters from AMPO, COMPASS, Iowa DOT, Nashville Area MPO, SEMCOG, TEMPO, and Transportation for America suggested that the performance period should coincide with State DOT and MPO Long Range Plan (LRP) cycles. Transportation for America stated that not aligning the performance period with the LRP cycle ‘‘creates a disincentive for these important entities to engage in the performance measure targeting and investment process or place an undue burden for these entities to conduct planning and target setting outside the planning process.’’ The AMPO and COMPASS added that the misalignment of performance periods may cause confusion when discussing baseline conditions and targets within the LRP. The Iowa DOT indicated that due to their 5-year planning and program development cycle, much of the investment planned for the time period of 2016 through 2020 will already be set by the time these rules go into effect. They added that they have limited ability to make changes, and it may take some time for them to redirect investment, if the national measures indicate different investment prioritization. Similarly, North Carolina DOT indicated that the 2 and 4 year periods will result in their State setting targets based on work that is already planned rather than targets that represent desired long-term system improvement. The TEMPO did not support the 4year frequency proposal and argued that MAP–21 does not specify target dates, ranges, or frequencies. They added that State DOTs and MPOs should be allowed to fulfill the continuing, cooperative, and comprehensive process as it relates to the establishment of feasible performance targets and their use in planning activities and documents. They also made a comment that State DOTs and MPOs should establish appropriate targets and meet the statutorily required biennial progress report for each target. Lastly, they rejected any specific target year or target setting frequency proposed by other entities under this and all other related rulemakings. Finally, the Minnesota DOT indicated that the proposed framework requiring 4-year performance periods with both 2- VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 year targets and 4-year targets may be overly complex. The FHWA is aware that pavement and bridges deteriorate slowly and agrees with the comments from AASHTO and the State DOTs of California, Connecticut, and Texas. However, it is important to recognize the difference between condition changes for individual pavement sections or individual bridges over time versus condition changes of system network or system deck areas over time. To confirm this difference, FHWA examined both pavement and bridge condition trends using the proposed condition measures and found noticeable changes over 2-year and 4year time periods.32 This is also evident in the letter submitted by Oregon DOT 33 for their bridge condition trends using the proposed bridge measures. This analysis provided sufficient evidence for FHWA to believe that the magnitude of percentage of system changes in Good and Poor condition for bridges is noticeable. As stated in the NPRM, established targets (2-year target and 4-year target) would need to be considered as interim conditions/performance levels that lead toward the accomplishment of longer term performance expectations in State DOT long-range statewide transportation plans 34 and NHS asset management plans.35 In order to avoid confusion, FHWA used the term ‘‘longer-term performance expectations’’ in the NPRM to distinguish between longer term targets and the interim anticipated condition/performance (i.e., 2-year and 4-year targets) toward those longer-term performance expectations. The FHWA recognizes the importance of considering a longer time horizon for planning and programming projects that considers and evaluates temporal tradeoffs between feasible improvements for more efficient and effective investment decisions. The FHWA strongly recommends that State DOTs and MPOs consider longer time horizons, which look beyond 4 years (i.e., multiple performance periods), for planning and programming of projects so identification and selection of those projects is guided by the longer term performance expectations. As indicated above, the purpose of the performance period is simply to measure and evaluate condition/performance, which 32 FHWA (2015) analysis results have been included in the Docket with the filename ‘‘NHS Bridge Condition Changes 2015 09 29.’’ 33 NPRM Comment FHWA–2013–0053–0161: https://www.regulations.gov/document?D=FHWA2013-0053-0161. 34 23 U.S.C. 135(f). 35 23 U.S.C. 119(e). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 should not be assumed to be a ‘‘planning, programming, project delivery, data collection, data reporting’’ cycle of individual improvement projects or a program of projects. Thus, the performance period and LRP cycles look at different periods of time and do not have to be aligned to be effective. For these reasons, FHWA believes that the performance period does not need to be aligned with the current LRP cycles of State DOTs and MPOs. Therefore, FHWA retains the intent of the proposed language in sections 490.105(e)(4) and (e)(5) in the final rule. In sections 490.105(e)(4)(iii) and (e)(4)(iv), FHWA added the phrase ‘‘for the measures in paragraphs (c)(1) through (c)(3) of this section’’ to codify the specific measures being discussed. This addition does not change the intent of the paragraph. Discussion of Section 490.105(e)(5) State DOT Reporting Because there were no substantive comments on section 490.105(e)(5), FHWA made no changes. Discussion of Section 490.105(e)(6) Target Adjustment The FHWA proposed that State DOTs may adjust their established 4-year targets when they submit their Mid Performance Period Progress Report (described in section 490.107(b)(2)). This language recognizes that State DOTs would need to consider many factors in establishing targets that could impact progress, such as uncertainties in funding, changing priorities, and external factors outside the control of State DOTs. This target adjustment allowance is limited to the Mid Performance Period Progress Report, and is not allowed at any other time during the performance period. In the NPRM, FHWA expressed that this frequency of adjustment allows a State DOT to address changes they could not have foreseen in the initial establishment of 4-year targets while still maintaining a sufficient level of control in the administrative procedure necessary to carry out program requirements in an equitable manner. The MPOs impacted by a State DOT’s adjustment of targets have the option to adjust their target by either: (1) Agreeing to plan and program projects so that they contribute toward the adjusted State DOT target for that performance measure or (2) committing to a new quantifiable target for that performance measure for its metropolitan planning area when a State DOT adjusts their target, as described in section 490.105(f)(7). The Metropolitan Transportation Commission expressed E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 their support for the proposed approach and stated that the ‘‘flexibility of revising targets in mid-stream will improve the ability of State DOTs and MPOs to more accurately predict future performance achievement.’’ The Illinois DOT expressed their desire for FHWA to retain the language in section 490.105(e)(6). However, the Center for American Progress and Transportation for America opposed the proposed language by stating that the proposed rule provides State DOTs with too much flexibility when establishing performance management targets and recommended that the rule should not allow State DOTs to adjust targets. Transportation for America stated that section 490.105(e)(6) is ‘‘directly against the intent of Congress for the nation’s performance management program to increase accountability and transparency of the Federal-aid highway program and improve project decision making through performance-based planning and programming.’’ They added that section 490.105(e)(6) ‘‘provides State DOTs blanket approval to amend their self-established targets after just 2 years without any criteria’’ and amending self-established targets is ‘‘unnecessary and contradictory to congressional intent.’’ The AASHTO and the State DOTs of Connecticut, Missouri, Oklahoma, and Oregon recommended that State DOTs should be allowed to adjust targets annually. The South Dakota DOT stated that MAP–21 clearly provides that individual State DOTs establish their own targets. However, they believe that VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 the proposed rule suggests that FHWA can restrict State DOTs’ authority to establish targets, notably as to when targets can be revised. They added that FHWA ‘‘must fully respect a State’s authority to set and revise targets.’’ The FHWA disagrees with the comment made by Transportation for America that its approach is ‘‘unnecessary and contradictory to congressional intent’’ and may reduce accountability and transparency of the Federal-aid highway program. As stated previously, the language in section 490.105(e)(6) is a result of FHWA’s recognition that State DOTs have to consider many factors in establishing targets that could impact progress such as uncertainties in funding, changing priorities, and external factors outside the control of State DOTs. Although the flexibility of adjusting target is granted, FHWA does not believe this approach reduces the accountability associated with targets and transparency in adjusting targets. First, as stated previously, the target adjustment allowance is limited to the Mid Performance Period Progress Report and not allowed at any other time during the performance period. Second, the 4-year target adjustment through the Mid Performance Period Progress Report will provide a more consistent method for significant progress determinations under section 490.109. The FHWA felt it is necessary to provide State DOTs the same opportunity to make significant progress for 4-year targets as for the 2-year targets. As shown in Figure 2 below, PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 5909 both 2-year and 4-year targets for the first performance period are reported to FHWA by October 1, 2018. Those 2-year targets will be subjected to a significant progress determination under section 490.109 after the Mid Performance Period Progress Report is submitted on October 1, 2020. Therefore, for the 2year targets, the duration between target reporting and significant progress determinations is about 2 years. However, for 4-year targets, the duration between target reporting and significant progress determination is about 4 years because the targets are reported on October 1, 2018, and the significant progress determination will be made after the Full Performance Period Progress Report is submitted on October 1, 2022. Allowing the adjustment of the 4-year target in the Mid Performance Period Progress Report provides the opportunity to make the duration between target reporting and significant progress determination about 2 years, which is consistent with 2-year targets. Third, this rule includes section 490.107(b)(2)(ii)(E) which requires State DOTs to include in their Mid Performance Period Progress Report a discussion on the basis for the adjustment and how the adjusted target supports expectations documented in longer range plans (e.g., the State asset management plan and the long-range statewide transportation plan). Finally, a State DOT’s discussion on targets and adjustment will be available on a public Web site to ensure transparency and accountability in the process. E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations The MAP–21 gives FHWA the discretion to establish requirements for targets such that any targets a State DOT establishes will achieve the overall requirements of the program. The FHWA believes State DOTs have the authority and flexibility to establish targets for the performance measures. However, contrary to South Dakota DOT’s comment, FHWA does not believe MAP–21 provides State DOTs the authority to adjust or revise targets at their discretion. Instead, FHWA believes that the statute provides FHWA the authority to establish requirements for targets. The FHWA feels that some VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 requirements must be established so that accountability and transparency are instilled in the performance management process. The FHWA also believes that these requirements for targets are consistent with six 36 of the 36 Six of the Nine principles used in the development of proposed regulations for target establishment criteria: www.regulatons.gov, Docket FHWA–2013–0053: • Ensure for Consistency—provide a sufficient level of consistency, nationally, in the establishment of measures, the process to set targets and report expectations, and the approach to assess progress so that transportation performance can be presented in a credible manner at a national level. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 • Increase Accountability and Transparency— consider an approach that will provide the public and decision makers a better understanding of Federal transportation investment needs and return on investments. • Consider Risk—recognize that risks in the target establishment process are inherent, and that performance can be impacted by many factors outside the control of the entity required to establish the targets. • Understand that Priorities Differ—recognize that State DOTs and MPOs must establish targets across a wide range of performance areas, and that they will need to make performance trade-offs to establish priorities, which can be influenced by local and regional needs. • Recognize Fiscal Constraints—provide for an approach that encourages the optimal investment of Federal funds to maximize performance but E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.016</GPH> mstockstill on DSK3G9T082PROD with RULES5 5910 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 nine principles listed in the NPRM preamble that were considered in the development of the proposed regulation. The biennial reporting cycle, as shown in Figure 2 above, has the appearance of only allowing State DOTs to incorporate uncertainties 2 years in advance. However, as shown in Figure 2 above, the actual duration (i.e., from Mid Performance Period Progress Report due date, October 1, to the end of the performance period) State DOTs have to incorporate uncertainties is shorter than 2 years. For example, as shown in Figure 2, the 4-year target established in 2018 (the first State Biennial Performance Report) may be adjusted in 2020 (the second State Biennial Performance Report due on October 1, 2020). Note that the 4-year target for the first performance period is the anticipated condition/performance level at the end of each performance period (December 31, 2021). As discussed in section 490.105(e)(4), 4-year targets would reflect the programmed improvement projects anticipated to be delivered, and their condition/ performance to be measured, by the end of that performance period. Therefore, FHWA believes that target adjustment, in October 2020 for the anticipated condition/performance as of December 2021, provides State DOTs a sufficient level of control in the administrative procedure necessary to carry out these program requirements in a reasonable manner. Note that duration from October 2020 to December 2021 is 15 months, not 2 years. Annual target adjustment, as suggested by AASHTO and others, would be adjusting the 4-year target (the anticipated condition/performance as of December 2021) during calendar year 2021. The FHWA believes the transparency of target and the target establishment process will be compromised if targets are allowed to be adjusted close to the end of the assessment period. Therefore, FHWA retains the language in section 490.105(e)(6) that allows State DOTs to only adjust their established 4-year targets when they submit their Mid Performance Period Progress Report. In the NPRM, FHWA proposed that, if an MPO had originally agreed to accept the State DOT’s targets and the State DOT adjusts them, the MPO would need to revisit its targets. Several MPOs and recognize that, when operating with scarce resources, performance cannot always be improved. • Provide for Flexibility—recognize that the MAP–21 requirements are the first steps that will transform the Federal-aid highway program to a performance-based program and that State DOTs, MPOs, and other stakeholders will be learning a great deal as implementation occurs. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 MPO associations, including NARC and TEMPO, argued that the final rule should explicitly state that when a State DOT chooses to adjust targets, an MPO is not required to also adjust its own established targets. The commenters suggested that a State DOT should be required to coordinate with the MPO if the State DOT adjusts its targets, just as State DOTs are required to do when establishing initial targets. The TEMPO recommended that any target adjustments proposed by a State DOT that directly impact an MPO’s planning area should be made jointly with the MPO. The FHWA agrees with these comments to implement the target selection coordination requirements under 23 U.S.C. 135(d)(2)(B)(i)(II). Therefore, FHWA added language in section 490.105(e)(6) that if a State DOT decides to adjust their 4-year targets then it must coordinate with relevant MPOs. Discussion of Section 490.105(e)(7) Phase-in Requirements for Interstate Pavement Measure In the NPRM, FHWA recognized that some State DOTs may not be able to meet all data requirements in section 490.309(b)(1) prior to the start of the first proposed performance period for the Interstate System pavement condition measure. As a result, FHWA proposed the following for the measures in section 490.307(a)(1) and (a)(2) in the NPRM: • State DOTs establish their 4-year targets and report these targets in their Baseline Performance Period Report, required under section 490.107(b)(1); • State DOTs are not required to report 2-year targets and baseline condition/performance in their Baseline Performance Period Report; and • State DOTs update the baseline condition/performance in their Baseline Performance Period Report, with the 2-year condition/performance in their Mid Performance Period Progress Report, described in section 490.107(b)(2)(ii)(A). Also, State DOTs may adjust their 4-year targets, as appropriate. The State DOTs of Maine, New Hampshire, and Vermont commented that the phase-in process for the Interstate pavement condition proposed in the NPRM only relieves State DOTs from reporting baseline condition and 2year targets, but ignores all other new requirements. They commented that establishing both 2 and 4-year targets will require the same baseline data. They questioned whether relieving only the 2-year target was an oversight in the NPRM, and if FHWA should also delay the establishment of 4-year targets. They PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 5911 requested additional clarification and guidance on how to establish 4-year targets in the absence of baseline condition data. The New Jersey DOT made a similar comment stating that it is impractical to establish and report 4year targets in the absence of baseline condition information and requested clarification of the requirement to report 4-year targets when a baseline condition/performance reporting is not required. Texas DOT stated that establishing the targets will be challenging since some State DOTs may not have historical information for some of the metrics in this rule and requested guidance on how these measures could be phased in along with new metrics. During the development of the NPRM, FHWA considered numerous ways for State DOTs to meet the target and progress reporting requirements under the 23 U.S.C. 150(d)(1) and 150(e), which require State DOTs to establish the first set of performance targets one year after the effective date of the final rule and to report those targets not later than October 1, 2016.37 The FHWA felt at the time of the development of the NPRM that some State DOTs may not be able to meet the new data reporting requirements for Interstate pavement condition, as provided in section 490.309(b)(1), until after the start of the first proposed performance period. The FHWA had to consider how State DOTs could meet the statutory requirements. The FHWA also realized that those State DOTs would encounter difficulties in establishing 4-year targets without sufficient data or the baseline condition/ performance for Interstate pavement condition measure for the first performance period. Therefore, FHWA allowed State DOTs to estimate their initial 4-year target. This would be done with the understanding that State DOTs would not have baseline condition when the target was first established and State DOTs would be provided an opportunity to adjust their estimated 4year target through Mid Performance Period Progress Report 2 years later. Their actual 2-year condition in the Mid Performance Period Progress Report would become the baseline condition for the first performance period. The FHWA has considered the comments and examined State DOTs’ ability to implement the data requirements in section 490.309(b)(1) for the Interstate pavement measures with respect to the updated implementation timeline in Figure 2 above. As provided in section 490.309(a), the first data collection cycle 37 ‘‘4 years after the date of enactment of the MAP–21’’ stipulated in 23 U.S.C. 150(e). E:\FR\FM\18JAR5.SGM 18JAR5 5912 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations (1-year cycle) will be in calendar year 2018. Therefore, assuming this final rule is effective in calendar year 2016, some State DOTs will not have the baseline conditions for Interstate pavement measures at the time of target reporting in Baseline Performance Period Report in calendar year 2018. The FHWA understands that it will be difficult to estimate targets without the baseline condition data for some State DOTs. However, State DOT target establishment ‘‘not later than 1 year of the effective date of this rule’’ in section 490.105(e)(1) is a statutory requirement under 23 U.S.C. 150(d). Therefore, to meet the statutory mandate, FHWA cannot delay the due date of State DOT target establishment. Therefore, as stated above, FHWA has allowed State DOTs to estimate their initial 4-year target. This would be done with the understanding that State DOTs would not have baseline condition when the target is first established and State DOTs would be provided an opportunity to adjust their estimated 4-year target through Mid Performance Period Progress Report 2 years later. Their actual 2-year condition in the Mid Performance Period Progress Report would become the baseline condition for the first performance period. Therefore, FHWA retains the phase-in requirements for Interstate pavement measure in section 490.105(e)(7) as proposed in the NPRM. mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.105(f) MPO Targets Section 490.105(f) describes MPO requirements for the establishment of targets for all measures identified in section 490.105(c). The MPOs are required to implement the 23 U.S.C. 134(h)(2)(B) target establishment provisions in a manner that provides for a level of consistency necessary to evaluate and report progress at both the national and MPO level. Discussion of Section 490.105(f)(1) MPO Target Schedule To meet the statutory requirements in 23 U.S.C. 134(h)(2)(C), section 490.105(f)(1) requires each MPO to establish 4-year targets no later than 180 days after the relevant State DOT establishes its targets. As discussed in the combined discussion for sections 490.105(e)(1) and 490.105(f)(1), FHWA recognizes that the level of effort and required coordination for selecting performance targets is substantial and takes time. However, to meet the statutory requirements in 23 U.S.C. 134(h)(2)(C), FHWA retains the language in section 490.105(f)(1). VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 In the NPRM, FHWA attempted to develop these target establishment requirements so that they could be met by all MPOs. Recognizing that MPOs vary in size, capability, resource availability, and ability to establish performance targets, FHWA proposed that they only be required to establish 4-year targets and have target establishment options, as provided in section 490.105(f)(4) of the NPRM (section 490.105(f)(3) of the final rule). The FHWA proposed MPO target establishment options: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT targets or (2) committing to quantifiable targets for their metropolitan planning area. The NARC expressed their appreciation for FHWA’s recognition of the burden an MPO faces in establishing targets and not requiring them to establish 2-year targets. However, Transportation for America stated that this rule lacks consistency as State DOTs are required to establish both a 2year and 4-year targets while MPOs are only required to establish 4-year targets. The FHWA considered these comments and determined that because MPOs vary in capability, resources, and their ability to establish performance targets it is important that the measures be structured in a way that allows all MPOs to meet the requirements in this rule. The FHWA retains the proposed language in NPRM section 490.105(f)(1)(i), in the final rule. Section 490.105(f)(1)(ii) is reserved. The FHWA retains the language of section 490.105(f)(2), as proposed in the NPRM. (See discussion for section 490.105(e)(2).) The FHWA deleted the language in section 490.105(f)(3) of the NPRM because this paragraph is redundant with what is already in section 490.105(f)(1). Subsequent paragraphs in section 490.105(f) were renumbered in the final rule. Discussion of Section 490.105(f)(3) and (4) MPO Target Establishment Option and MPOs Serving a Multistate Metropolitan Planning Area In the NPRM, FHWA proposed MPO target establishment options that would provide for a level of consistency necessary to evaluate and report progress at an MPO level, while providing for a degree of flexibility to support metropolitan planning needs. The FHWA also attempted to develop these target establishment requirements so that they could be met by all MPOs, recognizing that MPOs vary in capability, resource availability, and ability to establish performance targets. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Therefore, FHWA proposed in section 490.105(f)(4) that MPOs would establish targets specific to the metropolitan planning area by either: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT targets, or (2) committing to quantifiable targets for their metropolitan planning area. The proposed language gave MPOs two options to establish targets. The MPOs could establish their own quantifiable targets. Alternatively, recognizing that the resource level and capability of some MPOs to reliably predict performance outcomes varies across the country, FHWA proposed an approach that would allow MPOs that did not want to establish their own quantifiable target to establish targets by supporting State DOT targets for performance. The FHWA also stated in the NPRM that regardless of which option MPOs choose to establish targets, MPOs may need to work with relevant State DOTs to coordinate, plan, and program projects for their planning area. The NARC expressed their appreciation for the flexibility provided in section 490.105(f)(4) of the NPRM (section 490.105(f)(3) in the final rule), which gives an MPO target establishment options. Moreover, they supported flexibility that emphasizes local transportation priorities in establishing targets and allows MPOs to establish targets that represent a decline in pavement or bridge conditions, if dictated by local priorities. The Connecticut DOT, Mid America Regional Council, and NYSAMPO expressed their support for the proposed MPO target establishment options. However, the Center for American Progress opposed the options, stating that MPOs should be required to establish quantitative performance targets. The Northeast Ohio Areawide Coordinating Agency stated that if State funds are distributed with a focus on improving capacity, MPOs should have the freedom to establish regional targets that are realistic to the level of funding an MPO receives for maintenance separate from the State DOT goals. The Iowa DOT suggested FHWA should consider a waiver process by which the performance monitoring requirements for MPOs in those States where State DOTs hold sole programming authority over the State’s NHPP funding allocation. This would effectively eliminate the MPOs’ ability to impact the NHPP. The Connecticut DOT commented that many of the smaller MPOs do not currently have the resources to collect and analyze this data so this is likely to put additional E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations burdens on State DOTs. They advocated that any MPO electing to establish their own targets should be required to collect and analyze whatever data is needed to support their plan, if that data is not already available from State DOT or other entities. Because FHWA believes that MPOs vary in size, capability, resources, and ability to establish performance targets, FHWA disagrees with the Center for American Progress’s comment to require that MPOs only be allowed to establish quantifiable targets. The FHWA believes that performance management practices will continuously improve as State DOTs and MPOs implement the requirements under this rule. The FHWA anticipates that more MPOs will be able to establish their own quantitative targets in the future as the performance management practices mature. In response to the comments from Northeast Ohio Areawide Coordinating Agency and Iowa DOT, FHWA emphasizes that regardless of who controls funds or programming authority, coordination in target selection is required under 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II). (See the discussion section for sections 490.105(e)(2) and 490.105(f)(2) for more details on target selection coordination requirements.) In response to Connecticut DOT’s comment, FHWA notes that the pavement condition measures in subpart C are applicable to the mainline highways on the Interstate System and on the non-Interstate NHS. The bridge condition measures in subpart D are applicable to bridges carrying the NHS, which includes on- and off-ramps connected to the NHS. This is consistent with the statutory provisions in 23 U.S.C. 150(c)(3). Therefore, the applicable network for State DOTs and MPOs within that State are not mutually exclusive. The data collection and analysis must be done by State DOTs and MPOs in a coordinated manner, as required in 23 CFR 450.208. The FHWA considered the comments on MPO target establishment options and retains in the final rule the proposed options with minor revision in section 490.105(f)(4) of the NPRM (section 490.105(f)(3)). The revision is to clarify that an MPO can exercise different target establishment options for each measure in subparts C and D, and that they do not have to select the same option for all measures in subparts C and D. The FHWA amended section 490.105(f)(4) so that MPOs shall establish a target by either: (1) Agreeing to plan and program projects so that they contribute toward the VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 accomplishment of the relevant State DOT target for that performance measure, or (2) committing to a quantifiable target for that performance measure for their metropolitan planning area. The New Jersey DOT commented that multi-state MPOs should have the discretion to establish different targets for each State. In response to the comment, FHWA added section 490.105(f)(4) to address situations where metropolitan planning areas extend across multiple States. As discussed in section 490.105(f)(3), MPOs have an option for establishing a target by either: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT targets, or (2) committing to quantifiable targets for their metropolitan planning area. The added language in section 490.105(f)(4)(i) provides MPOs the option to choose different target establishment options, as specified in section 490.105(f)(3), for the portion of the metropolitan area within each State. For example, if a metropolitan planning area of an MPO is located within two States (e.g., ‘‘State A’’ and ‘‘State B’’), that MPO could establish their target for a measure by: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the State A target for the portion of metropolitan planning area within State A; and (2) committing to quantifiable target for the portion of their metropolitan planning area within State B. The language in section 490.105(f)(4)(ii) clarifies that if an MPO chooses the option to ‘‘agree to plan and program projects to contribute toward State targets’’ for the entire metropolitan planning area, then they must plan and program projects in support of the individual State DOT targets as applicable to the portion of the metropolitan area within each State. Although MPOs could exercise their target establishment options provided in section 490.105(f)(3) and (4), FHWA emphasizes that all MPOs are required to coordinate with relevant State DOTs in MPO target establishment regardless of which options MPOs choose in target establishment. Sections 490.105(f)(5) and 490.105(f)(6) are reserved. Discussion of Section 490.105(f)(7) MPO Response to State DOT Target Adjustment The FHWA proposed MPO response options to State DOT target adjustment, described in section 490.105(e)(6), through the State DOT’s Mid Performance Period Progress Report. This MPO response option was only for PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 5913 those MPOs who established their targets by agreeing to plan a program of projects so that they contribute to the adjusted State DOT target for a performance measure, as provided in section 490.105(f)(4)(i) of the NPRM (section 490.105(f)(3)(i) of the final rule). Those MPOs responding to State DOT target adjustment have the following options: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT targets, or (2) committing to quantifiable targets for their metropolitan planning area. The NARC made a comment that the rule should explicitly state that when a State DOT chooses to adjust its targets, an MPO is not required to also adjust its own established targets. The FHWA believes that the language in this rule does not require MPOs to adjust their own quantifiable target when State DOTs adjusts their targets. The FHWA feels that it is not necessary to explicitly state this in the final rule. The FHWA retains the proposed MPO response options with minor revisions in section 490.105(f)(7). The revision is to clarify that MPOs can exercise different target establishment options for each measure in subparts C and D, and that they do not have to select the same option for all measures in subparts C and D. The FHWA amended section 490.105(f)(7) to read that MPOs shall respond to State DOT target adjustment by either: (1) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT target for that performance measure, or (2) committing to a quantifiable target for that performance measure for their metropolitan planning area. Although MPOs could exercise their target selection options provided in section 490.105(f)(7), FHWA emphasizes all MPOs are required to coordinate with relevant State DOTs in target selection, as required in section 490.105(f)(3), regardless of which option MPOs choose in target selection. Discussion of Section 490.105(f)(8) MPO Target Adjustment The Texas DOT commented that ‘‘if the proposed rules are adopted as drafted, Texas State DOT will need to work with TEMPO and their MPOs and transit providers to amend all existing Metropolitan Planning Agreements to include language regarding performance planning, measures, targets, etc.’’ They added that this is going to become ‘‘even more important in light of the new OMB Super Circular and the potential need to make changes to the Metropolitan Planning Agreements based on new regulations in 2 CFR 200.’’ The Texas E:\FR\FM\18JAR5.SGM 18JAR5 5914 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 DOT commented that ‘‘this requirement is a significant task, and State DOTs and MPOs should be given the greatest degree of latitude and flexibility in making these revisions on a schedule of their own choosing without penalty.’’ The NYMTC commented that this rule requires State DOTs and MPOs to document procedures for reporting, target setting, target adjustment, and related coordination in metropolitan planning agreements. The NYMTC commented that they object to the use of metropolitan planning agreements for this purpose. In lieu of the metropolitan planning agreements, they recommended maximum flexibility for State DOTs and MPOs in establishing the coordination that is appropriate to each State and region. They argued that MPOs and State DOTs should not have to revisit the metropolitan planning agreements each time they make an adjustment to targets or related data collection and performance reporting procedures. The comment from Texas DOT on metropolitan planning agreement requirements is beyond the scope of this rule. (See 23 CFR 450.314 for details on metropolitan planning agreement requirements.) Addressing NYMTC’s comments, FHWA amended the language in section 490.105(f)(8) to remove the requirement to document the target adjustment process in the metropolitan planning agreement. The manner in which targets will be adjusted is to be mutually agreed upon by State DOTs and MPOs. This change is consistent with numerous comments received on this rule and the Planning Rule. As noted in the discussion of section 490.107(c)(1) on MPO reporting, amending the metropolitan planning agreement as part of the performance management process is onerous and does not provide the flexibility needed. This change is also intended to emphasize the need for State DOTs and MPOs to coordinate when adjusting targets, just as they are to do when establishing targets. (See discussion section for section 490.107(c)(1) for more information.) No substantive comments were received for section 490.105(f)(9). The FHWA retains the language in section 490.105(f)(9) as proposed. Discussion of Section 490.107 Reporting on Performance Targets Section 490.107 deals with the biennial performance reporting schedule and requirements. The Montana DOT commented that, with multiple rulemakings underway and more planned in the future, FHWA should coordinate the reporting VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 deadlines for all of the rules that fall under this title. This will reduce the burden on States and allow reasonable process development timeframes. As outlined in section 490.107, FHWA notes that reporting timeframes will be coordinated to the maximum extent practicable. The New York DOT submitted a comment expressing their support for the provision that requires that only State DOTs report to FHWA on performance targets and progress in achieving established targets. Discussion of Section 490.107(a)(1)–(2) General Reporting on Performance Targets The North Carolina DOT commented that the use of three different reports and the associated requirements is unduly complex. They suggest that since the data is being submitted to HPMS and NBIS, FHWA should extract and use the information to meet the reporting requirements. The FHWA clarifies that performance metric data is completely different from performance target, condition/ performance, progress evaluation, etc. The FHWA felt it is necessary to differentiate the two in this rule because metric data refers to IRI, Cracking Percent, rutting, and faulting values for pavement sections reported to HPMS and NBI Data Items 58-Deck, 59Superstructure, 60-Substructure, and 62-Culverts). These reported metric data are not performance measures and they do not represent performance targets. Section 490.107 in this rule deals with reporting targets, condition/ performance, progress evaluation, etc. and they are also required under 23 U.S.C. 150(e). For this reason, FHWA retains section 490.107(a)(1) and 490.107(a)(2) as proposed in the NPRM. Discussion of Section 490.107(a)(3) Electronic Reporting Template The FHWA retains the language in section 490.107(a)(3) that states an electronic template, provided by FHWA, will be used for State DOT reporting. Comments from the AASHTO, Connecticut DOT, Iowa DOT, Missouri DOT, New York DOT, Oklahoma DOT, Oregon DOT, PSRC, Texas DOT, and Washington DOT expressed their support for an electronic template. They wanted State DOTs to be included in the development of the product and given time to review and comment on the requirements to ensure it is not an undue burden to report the data. The FHWA will invite the public to attend demonstrations of the reporting tool and plans to solicit comments on the reporting tool during this PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 demonstration. The FHWA will consider comments received on the electronic reporting template. The New York State DOT commented that FHWA should minimize additional requirements by allowing States and MPOs to work within existing processes, to the extent possible, without imposing onerous reporting requirements or requiring significant adjustment to existing legal documentation. The FHWA notes that development of an electronic reporting template is intended to aid in streamlining the reporting process. Discussion of Section 490.107(b)(1)(i) Baseline Performance Period Report Schedule The FHWA received comments on the proposal to require submission of the first Baseline Performance Period Report on October 1, 2016, in section 490.107(b)(1)(i). Comments from Washington DOT and Alaska DOT&PF noted that the proposed 2016 due date would not allow the time required by MAP–21 to establish targets. The Seattle DOT noted this as well, but asked that all deadlines be removed and State DOTs be allowed to conduct an extensive comment and revision process without a specific deadline. The statute established target establishment and reporting deadlines for State DOTs and MPOs. The FHWA cannot change statutory deadlines. Accordingly, because this rule is being issued and effective after October 1, 2016, FHWA issued guidance on the State DOT report due on October 2016 to advise State DOTs how to comply with the statutory deadline for the first performance reporting under 23 U.S.C. 150(e). Please see discussion section for sections 490.105(e)(1) & (f)(1) for more on the FHWA issued guidance. Considering the comments received on this section, and the requirements in sections 490.105(e)(1) and 490.105(f)(1) (requiring establishment of State DOT targets within 1 year of the effective date of each final rule and MPO targets to be established within 180 days of State targets), FHWA amended the implementation timeline in section 490.107(b)(1)(i). The FHWA amended the due date of the first Baseline Performance Period report from October 1, 2016, to October 1, 2018. With the revision to section 490.107(b)(1)(i), the first Baseline Performance Period Report is now due October 1, 2018, which is a delay of 2 years. Due to this change, the related performance period discussed in section 490.105(e)(4)(i) will also be delayed 2 years and begin on January 1, 2018. State DOTs and MPOs will still be E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 required to establish targets by the date specified in sections 490.105(e)(1) and 490.105(f)(1). A timeline for Biennial Performance Reports is shown in Figure 1 in section 490.105(e)(1). Discussion of Section 490.107(b)(1)(ii)(A) and (C) Baseline Performance Period Report Content The North Dakota DOT commented that the reporting requirements in section 490.107 were too detailed and that the use of the phrase ‘‘to the maximum extent practicable’’ opens the door to an unconstrained demand on State DOTs with possibilities of abuse. They added that documents such as the long-range statewide transportation plan are already required to document the measures, targets, and financial plans. The FHWA disagrees with the comment from the North Dakota DOT. The FHWA has identified the minimum reporting requirements in section 490.107 needed to establish a performance management program that meets the intent and requirements of MAP–21, and allows for the discussion of performance management at a national level. The FHWA believes a set of minimum reporting requirements are necessary to provide a sufficient level of consistency in the report and the approach to assess progress, so that transportation performance can be presented in a credible manner at a national level. The FHWA also believes that the requirements in section 490.107 provide the public and decisionmakers a better understanding of Federal transportation investment needs and return on investments, thereby increasing accountability and transparency in the performance management process. The FHWA used the phrase ‘‘to the maximum extent practicable’’ in section 490.107(b)(1)(ii)(A) and (C) where State DOTs are required to include discussions for the basis for each established target and their relationship with other performance expectations (in longer range plans, such as the State asset management plan or the longrange statewide transportation plan). The FHWA believes these descriptions are necessary for State DOT justifications to the public and decisionmakers on how their targets are derived. The FHWA reiterates that the statutory language in MAP–21 provides that State DOTs have the ability to establish their own targets but does not provide FHWA the authority to approve or reject State DOT established targets. The FHWA believes more detailed and defensible explanations will benefit the public, decisionmakers, and State DOTs. The FHWA retains the language in VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 section 490.107(b)(1)(ii)(A) and (C) in the final rule. Discussion of Section 490.107(b)(1)(ii)(C) and 490.107(b)(2)(ii)(C) Relationship With Other Performance Expectations in Baseline Performance Report and Investment Strategy Discussion in the Mid-Period Performance Report Sections 490.107(b)(1)(ii)(C) (Relationship with other performance expectations in Baseline Performance Report) and 490.107(b)(2)(ii)(C) (Investment strategy discussion in the Mid-Period Performance Report) outline the requirements to discuss the link between the performance management targets, other plans, and the effectiveness of the investment strategies documented in the State asset management plan. The AASHTO, Alaska DOT&PF, and Connecticut DOT commented that these requirements should be removed as they are ‘‘duplicative and excessive reporting requirements,’’ and open the ‘‘door to an unconstrained demand on State DOTs for information and discussion.’’ They also commented that the existing documents, such as the long-range Statewide transportation plan and STIP, have requirements to document measures, targets, financial plans, and how the projects support program goals. The North Carolina DOT commented that the mid-period discussion of the State asset management plan could be excessive. The North Carolina DOT asked if this discussion is to be a onetime occurrence or occur in each midperiod report. As discussed above for section 490.107(b)(1)(ii)(A) and (C), FHWA believes minimum reporting requirements are necessary to provide a sufficient level of consistency, in the expectations and approach, to assess progress so that transportation performance can be presented in a credible manner at a national level. The FHWA also believes that the requirements in section 490.107 provide the public and decisionmakers a better understanding of Federal transportation investment needs and return on investments, thereby increasing accountability and transparency in the performance management process. The FHWA does not agree that the items to be reported in the biennial performance reports are duplicative from the State asset management plan, long-range statewide transportation plan, STIP, or others. Although plans and reports support performance management implementation and the performance targets in section 490.105, the biennial performance reports under this rule are PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 5915 updates of performance information every 2 years, but the long-range statewide transportation plan and STIP are required as part of planning process. Moreover, FHWA believes that it will be very difficult for the public and decisionmakers to obtain performance information by searching through various plans (e.g., State asset management plan, long-range statewide transportation plan, STIP, and others). The FHWA believes that the minimum reporting requirements under section 490.107 will facilitate public access to performance information in a consistent cycle for all State DOTs, thereby increasing accountability and transparency and helping to facilitate the presentation of transportation performance at a national level. Therefore, FHWA retains the language in sections 490.107(b)(1)(ii)(C) and 490.107(b)(2)(ii)(C), as proposed in the NPRM. The reporting requirements are focused on the impacts of performance management. Including this information within the reports from all State DOTs and on the same timeline will aid in the creation of a national performance story. Discussion of Section 490.107(b)(1)(ii)(D) Urbanized Area Boundaries and Population Data for Targets The FHWA proposed in section 490.313(b)(1) that thresholds for IRI rating determination (Good, Fair, or Poor) would be different among the pavement sections located within and outside of the urbanized areas with a population greater than 1 million. In the case of urbanized area boundary changes during a performance period, FHWA proposed that State DOTs declare and describe the urbanized area in their Baseline Performance Period Report at the beginning of each performance period so that the IRI rating determinations could be done consistently throughout the performance period. The FHWA revised section 490.107(b)(1)(ii)(D) to remove the term ‘‘IRI rating determination’’ because the thresholds for IRI rating determination are the same regardless of the location of pavement segments. (See sections 490.103(b) and 490.313(b)(1) for further discussion.) For section 490.107(b)(1)(ii)(D), the Florida DOT requested clarification on the use of the term ‘‘applicable urbanized areas’’ in regards to the NPRM language that states: ‘‘. . . State DOTs shall document the boundary extent for all applicable urbanized areas and the latest Decennial Census population data, based on information in HPMS.’’ E:\FR\FM\18JAR5.SGM 18JAR5 5916 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Should a State DOT choose to establish additional urbanized targets, as outlined in section 490.105(e)(3), urbanized boundary information would need to be submitted. The term ‘‘applicable urbanized areas’’ in section 490.107(b)(1)(ii)(D) applies to the urbanized areas for which State DOTs establish optional targets under section 490.107(e)(3). As stated above, the thresholds for IRI rating determinations in section 490.107(b)(1)(ii)(D) are no longer based on the location of pavement sections. Therefore, the urbanized areas with a population greater than 1 million will no longer apply in this paragraph. In the final rule, the term ‘‘applicable urbanized areas’’ in section 490.107(b)(1)(ii)(D) applies only to the urbanized areas for which State DOTs establish optional targets under section 490.105(e)(3). mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.107(b)(1)(ii)(E) Deleted Section The FHWA deleted section 490.107(b)(1)(ii)(E) so State DOTs will not be required to declare or describe NHS limits for the entire performance period. The NHS limits for pavement condition measures will come from the same year’s dataset as the pavement condition metric data in HPMS. The NHS designations for bridge condition measures will come from the same year’s dataset as the bridge condition metric data in NBI. (See discussion section for section 490.105(d)(3) for more detail.) Discussion of Section 490.107(b)(2)(i) Schedule In section 490.107(b)(2)(i), FHWA has delayed the Mid Performance Period Progress Report due date by 2 years from 2018 to 2020. This was done to be consistent with the delayed start to the performance period and Baseline Performance Report, as discussed in section 490.107(b)(1)(i). Discussion of Section 490.107(b)(2)(ii)(C) and (E) Investment Strategy Discussion and Target Adjustment Discussion The NEPPP noted that the investment strategy discussion in section 490.107(b)(2)(ii)(C) specifically identifies the State asset management plan for the NHS, while the other reports do not specify the NHS. The NEPPP requested clarification on the Interstate versus NHS in each of the three reports. In response to the comments, FHWA inserts the phrase ‘‘for NHS’’ after ‘‘State asset management plan’’ in sections 490.107(b)(1)(ii)(C) and 490.107(b)(2)(ii)(E) to clearly indicate that the State asset management plan VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 under required under 23 U.S.C. 119(e) is applicable to NHS. This revision is consistent with the term ‘‘State asset management plan for NHS’’ in sections 490.107(b)(2)(ii)(C) and 490.107(b)(3)(ii)(C). The measures in subparts C and D are applicable to the NHS. The measures in subpart C assess the condition of pavements on the NHS (which includes the Interstate System and NHS exclusive of the Interstate System). The measures in subpart D assess the condition of bridges carrying the NHS, which includes on- and offramps connected to the NHS. Discussion of Section 490.107(b)(2)(ii)(H) NHPP Target Achievement Discussion The FHWA amended the language by replacing the phrase ‘‘improve . . . condition’’ with ‘‘achieve targets,’’ when State DOTs describe the actions they will take required under section 490.109(f). The FHWA received a comment, discussed in section 490.109(f)(1) through (3), that the phrase ‘‘improve condition’’ could be perceived as a ‘‘worst-first’’ management practice. As discussed in sections 490.109(f)(1) through (f)(3), this revision was made to be consistent with the statutory language in 23 U.S.C. 119(e)(7). Discussion of Section 490.107(b)(3)(i) Schedule The FHWA delayed the report on the full performance period by 2 years, from 2020 to 2022. This was done to be consistent with the delayed start to the performance period and Baseline Performance Report, as discussed in section 490.107(b)(1)(i). Discussion of Section 490.107(b)(3)(ii)(B) 4-year Progress in Achieving Performance Targets The FHWA changed the phrase ‘‘. . . each established 4-year target in paragraph (b)(1)(ii)(A) or (E) of this section, . . .’’ to ‘‘. . . each 4-year target established in paragraph (b)(1)(ii)(A) or in paragraph (b)(2)(ii)(E) of this section.’’ This is an editorial change to correct the section reference in the regulatory text. The AMPO and New Jersey DOT requested clarification on the difference between the reporting requirements in sections 490.107(b)(3)(ii)(B) and 490.107(b)(3)(ii)(E). The differences between the two are that paragraph (B) applies to all targets, including any additional (urbanized and nonurbanized area) targets in section 490.105(e)(3), but paragraph (E) applies only to the statewide NHPP targets subject to significant progress determination outlined in section PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 490.109. Additionally, paragraph (B) is a qualitative assessment or explanation of any reasons for differences in the actual and target values. Paragraph (E) is a summary of accomplishments (e.g., how implemented investment strategies impacted the actual condition/ performance) of State DOTs in achievement of 4-year targets for the NHPP measures. The FHWA retains sections 490.107(b)(3)(ii)(B) and 490.107(b)(3)(ii)(E) in the final rule. Discussion of Section 490.107(b)(3)(ii)(G) NHPP Target Achievement Discussion As discussed in section 490.107(b)(2)(ii)(H), FHWA amended section 490.107(b)(3)(ii)(G) by replacing the phrase ‘‘improve . . . condition’’ with ‘‘achieve targets’’ when State DOTs describe the actions they will take as required under section 490.109(f). (See discussion section for sections 490.107(b)(2)(ii)(H) and 490.109(f)(1) through (3).) Discussion of Section 490.107(c)(1) MPOs Shall Report Established Targets to State DOT The FHWA amended the language in section 490.107(c)(1) to remove the requirement to use the metropolitan planning agreement to document how MPOs shall report their established targets to their respective State DOTs. The final rule requires MPOs to report their established targets to State DOTs in a manner that is documented and mutually agreed upon by both parties. The Mid-America Regional Council expressed support for the language in the NPRM that required the method for reporting targets be documented in the metropolitan planning agreement. However, AMPO, ARC, COMPASS, NARC, NYSDOT, NYMTC, NYSAMPO, and TEMPO objected to the proposed documentation requirement as it would require the metropolitan planning agreement to be updated. The Transportation for America’s commented that ‘‘States should form an agreed to process with all MPOs within the State.’’ 23 CFR 450.314(h) of the final Planning Rule provides State DOTs and MPOs options for mutually identifying the agency roles and responsibilities for performance-based planning and programming in metropolitan areas in writing, either through the metropolitan planning agreements or by some other mutually determined means. To address the received comments above and to ensure consistency between this final rule and the final Planning Rule, FHWA has removed references to the E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 metropolitan planning agreement from this Rule. The Connecticut DOT and NYMTC commented that States and MPOs should have maximum flexibility and discretion in target setting. As stated in discussion for section 490.105(a), MAP– 21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. The FHWA reiterates that this rule does not hinder the ability of State DOTs and MPOs to establish targets that have performance holding steady or declining. The Memphis Urban Area MPO requested clarification on the frequency and method of reporting data to State DOTs. The FHWA did not specify a required MPO reporting process in this rule. Please refer to the 23 CFR 450.324 for the requirements for MPO system performance report in the metropolitan transportation plan. Discussion of Section 490.107(c)(2) MPO System Performance Report The FHWA retains the language in section 490.107(c)(2) that requires MPOs to report baseline condition/ performance and progress toward the achievement of their targets in the system performance report for the metropolitan transportation plan (MTP), in accordance with part 450 of this chapter and as provided in 23 U.S.C. 134(i)(2)(c). The Mid-America Regional Council expressed their support for this requirement. The IOWA DOT, NYMTC, and NYSAMPO asked for clarification on the timing of the initial Metropolitan Transportation Plan System Performance Report, given the variability of MTP adoption schedules. The inquiries related to the MTP are outside of the scope of this rule. Those inquiries should refer to the Planning final rule. The Iowa DOT expressed concerns with submitting the system performance report with the Long Range Transportation Plan (LRTP), which is required every 4–5 years (depending on air quality in the MPO). The Iowa DOT asked how that will line up with the 2year reporting periods outlined in the NPRM. The Iowa DOT also commented that the NPRM sets specific dates for implementing the performance measure reporting, which may or may not align with LRTP update cycles for individual MPO agencies. The NYSAMPO commented that it is important to coordinate all of the reporting and target setting timelines for each of the performance measure rules so that State DOTs and MPOs are not burdened with numerous reporting schedules that are out of synch with one another. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Transportation for America echoed these concerns, and suggested that FHWA ‘‘ensure the performance period being proposed syncs up with the plan update cycles for State DOTs and MPOs.’’ The AMPO and COMPASS advised FHWA to have MPOs align their performance periods to their LRTP cycle. The TEMPO stated that each MPO should set its own individual target setting and biennial reporting timelines. The AMPO requested clarification on whether MPOs would be required to report on the same timelines as State DOTs. It is true that the performance period and individual MPO planning cycles may not coincide, but there is no requirement that they do. At the time of MTP adoption (LRTP or MTP), the MPO would include what information it had in its system performance report and expand on the information with the next report update. In addition, MPOs can choose to adopt their MTPS before the 4–5 year requirement, and more closely align their planning cycle and the performance period cycle. The Iowa DOT requested more detail on what will be required to report in their system performance report. The regulatory requirements of the system performance report are provided in 23 CFR part 450.38 The inquiries related to the system performance report are outside of the scope of this rule. Those inquiries should refer to the Planning final rule. Section 490.109 Assessing Significant Progress Toward Achieving the Performance Targets for the National Highway Performance Program Discussion of 490.109(a) General The FHWA retains the language in section 490.109(a) which makes State DOTs accountable for making progress for all pavements and bridges on the NHS regardless of ownership. The FHWA made minor clerical edits to clarify the cross-references. The AASHTO recommended that non-State DOT assets (e.g., assets owned by the Federal government, tribal governments, local agencies, and others) be excluded from the significant progress determination under section 490.109. The AASHTO and State DOTs of Connecticut, Maine, New Hampshire, Vermont, and Washington argued that State DOTs may not be legally able to collect data on non-State DOT assets and may have no authority to control how funding on those assets is spent or assets are maintained. As discussed in 38 Statewide and Nonmetropolitan Transportation Planning: Metropolitan Transportation Planning (FR Vol. 81, No. 103). PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 5917 section 490.105(d), FHWA is aware of a limit to the direct impact that State DOTs can have on performance outcomes for the non-State controlled assets within the State. However, as the recipients and stewards of the NHPP funds for the NHS in respective State DOTs, FHWA expects that State DOTs would consider the uncertainty and associated performance outcome of the non-State owned assets. The FHWA expects State DOTs to coordinate with the appropriate owners of the non-State controlled NHS assets in the establishment of State DOT targets. Both the Alaska DOT&PF and the Oregon DOT suggested alternatives to the term significant progress and its definition. The Alaska DOT&PF commented that the term be redefined to mean ‘‘meet or exceed the 1⁄2 target’’ or the term should be removed from the rule entirely. The Oregon DOT suggested that the term significant progress be revised to ‘‘adequate’’ progress. However, FHWA retains the term ‘‘significant progress’’ in the final rule because the term is referenced in the statute (23 U.S.C. 119(e)(7)). Discussion of 490.109(b) Frequency Section 490.109(b) specifies the frequency for FHWA to determine whether a State DOT has or has not made significant progress toward the achievement of NHPP targets to be every 2 years (i.e., at the midpoint and the end of each performance period) which aligns with State DOT Biennial Performance Reports in 490.107. In the NPRM, FHWA stated that it expects that during a performance period, State DOTs would routinely monitor leading indicators (e.g., program delivery status) to assess if they are on track to make significant progress toward achievement of their NHPP targets. If a State DOT anticipates that it may not make significant progress, it is encouraged to work with FHWA and seek technical assistance during the performance period to identify the actions that can be taken to improve progress. In the NPRM, FHWA sought comment on whether it should require State DOTs to more frequently (e.g., annually) evaluate and report the progress they have made. The Tennessee DOT supported the 2-year cycle of significant progress determinations and added that ‘‘annual reporting would be unlikely to show significant differences in results than biennial reporting.’’ The Missouri DOT commented that State DOTs will have the ability to report data annually. The data should be updated in HPMS and NBI systems, but State DOTs should not be asked to submit a progress report on an annual basis. The AASHTO and E:\FR\FM\18JAR5.SGM 18JAR5 5918 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 Connecticut State DOT opposed more frequent reporting and determinations. The FHWA clarifies that FHWA did not seek comments on the frequency of FHWA significant progress determination (i.e., every 2 years). Instead, FHWA requested comments on whether or not State DOTs should evaluate their condition/performance and report the progress they have made more frequently than every 2 years. Through more frequent condition/ performance evaluation, State DOTs would more frequently monitor their condition/performance and have the opportunity to proactively take necessary actions make significant progress toward achievement of the NHPP targets. The FHWA appreciates the comments, but retains the biennial frequency of progress reporting in § 490.107. The FHWA strongly encourages State DOTs to routinely monitor their condition/performance so they can proactively take actions necessary to make significant progress toward achievement of the NHPP targets. Discussion of § 490.109(c) Schedule The FHWA retains the language in section 490.109(c) which says FHWA will determine significant progress toward the achievement of a State DOT’s NHPP targets after the State DOT submits the Mid Performance Period Progress Report for progress toward the achievement of 2-year targets, and again after the Full Performance Period Progress Report for progress toward the achievement of 4-year targets. The Missouri and Tennessee DOTs expressed support for the proposed timeline, noting that the necessary data is submitted annually and therefore FHWA is able to complete their assessment with the frequency they deem necessary. The Oregon DOT requested clarification on who at FHWA will perform the assessment of significant progress. The AASHTO and the Oregon and Connecticut DOTs recommend that FHWA inform State DOTs of their achievement of making significant progress by December 31 of the calendar year in which the assessment was made. They also recommended that the rule provide that if a State DOT does not receive that information by the deadline, then it is conclusively deemed to have made significant progress in that time period. North Carolina DOT also commented that notification should be as soon as possible. The FHWA is committed to a timely notification of significant progress determination results to State DOTs so VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 they can take prompt actions, as described in section 490.109(f). The FHWA is also committed to a timely publication of determination results on the public Web site to meet the demands of the public and Congress. The FHWA clarifies that prior to its determination, State DOTs are required to report actual condition/performance in their Mid Performance Period Progress Report and Full Performance Period Progress Report, as provided in sections 490.107(b)(2)(ii)(A) and 490.107(b)(3)(ii)(A). The FHWA also clarifies that the reported actual condition/performance in sections 490.107(b)(2)(ii)(A) and 490.107(b)(3)(ii)(A) are not a qualitative assessment of performance, but they are quantitative values (i.e., calculated measures). The qualitative assessment of performance is required under sections 490.107(b)(2)(ii)(B) and 490.107(b)(3)(ii)(B). With quality HPMS and NBI data from State DOTs, FHWA believes that State DOT reported condition/performance will be no different from FHWA calculated condition/performance in significant progress determination in section 490.109. State DOTs are also required to discuss the progress they have made toward the achievement of all targets established for the NHPP measures, as described in sections 490.107(b)(2)(ii)(F) and 490.107(b)(3)(ii)(E), in the Mid Performance Period and Full Performance Period Progress Reports. The FHWA believes that through these requirements, State DOTs will be well aware of whether they will make significant progress prior to FHWA determination notification. Therefore, FHWA retains the language in section 490.109(c), as proposed in the NPRM. The FHWA plans to issue guidance clarifying when the determination notification to State DOTs will be made after publication of the final rule. The North Carolina DOT requested clarification on whether States that failed to achieve significant progress would be able to adjust their targets. Failure to achieve significant progress does not trigger the opportunity or requirement to adjust targets. The State DOTs have the opportunity to establish or adjust targets every 2 years, as provided in sections 490.105(e)(4)(i) and (e)(4)(ii) and 490.105(e)(6), respectively. The process used by FHWA to determine significant progress is transparent. As discussed in section 490.105(e)(6), FHWA believes if targets are allowed to be adjusted more frequently, then the transparency of target and target establishment process will be compromised. The FHWA PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 strongly encourages State DOTs to track their significant progress on their own, and adjust targets in their Mid Performance Period Progress Report as they deem necessary. Discussion of 490.109(d)(1) Through (d)(3) Source of Data/Information In sections 490.109(d)(1) through (d)(3), FHWA proposed data extraction dates for the significant progress determination for NHPP measures. The proposed data extraction dates were: • June 15 of the year in which the significant progress determination is made for the Interstate System pavement condition measures; • August 15 of the year in which the significant progress determination is made for the non-Interstate NHS pavement condition measures; and • June 15 of the year in which the significant progress determination is made for the NHS bridge condition measures. The Oregon DOT requested a wording change from ‘‘prior year’’ to ‘‘most recent data collected’’ in sections 490.109(d)(1) and (d)(2). The commenter noted that the term ’’prior year’’ indicates that data has to be collected in the 2nd and 4th years for the nonInterstate NHS sections. They asked what if a State wants to collect this data in years 1 and 3 of the performance period. The commenter stated that the wording should be changed to allow States to use the most recent data collected as this gives the States flexibility in selecting data collection cycles to match other processes, such as STIP development, within the State. The FHWA clarifies that the data collection frequency requirement for non-Interstate NHS pavement data is every 2 years, as described in section 490.309(b)(2). So, in this rule, there is no requirement for State DOTs to collect their pavement condition data for the entire non-Interstate NHS within a particular year. The FHWA also clarifies that biennial data collection frequency for non-Interstate NHS requires annual data reporting to HPMS making the most recent data collected replacing the data from previous data collection cycle. So, if a State DOT chooses to collect pavement data for the entire nonInterstate NHS in the first year of a performance period and collect data again for the entire non-Interstate NHS in the third year of that performance period, that State DOT will meet the requirements in section 490.309(b)(2). The FHWA believes that this approach will not hinder State DOTs from selecting their data collection cycles to match other processes. Please note that annual pavement data collection E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations frequency is required for the Interstate System, as described in section 490.309(b)(1). Because of the provided explanation, FHWA believes the term ‘‘prior year’’ is more appropriate in sections 490.109(d)(1) and (d)(2) because the term refers to the ‘‘most recent data collected and reported’’ in HPMS. Therefore, FHWA retains the language in sections 490.109(d)(1) and (d)(2), as proposed in the NPRM. The FHWA did not receive any substantive comments regarding these data extraction dates but received substantive comments on the proposed data reporting dates for both pavement and bridge condition measures. Please refer to sections 490.311(c)(4) and (c)(5) and 490.411(d) for discussion of those comments. As discussed in sections 490.311(c)(4) and (c)(5) and 490.411(d), FHWA adopts the language in sections 490.109(d)(1) through (d)(3) in the final rule. mstockstill on DSK3G9T082PROD with RULES5 Discussion of 490.109(d)(4) Baseline Condition Data The FHWA revised section 490.109(d)(4) so that the NHS limits for significant progress determination for pavement condition measures will come from the same year’s dataset as the pavement condition metric data in HPMS. The NHS designations for the significant progress determination for the bridge condition measures will come from the same year’s dataset as the bridge condition metric data in NBI. Similarly, the NHS information for the baseline conditions for significant progress determination of the targets for the pavement and bridge condition measures will come from the data contained in HPMS and NBI of the year in which the Baseline Period Performance Report is due to FHWA. (See discussion sections for 490.105(d)(3), and 490.107(b)(1)(ii)(E) for more detail.) In addition, sections 490.313(b)(1) and (b)(2) are revised so that IRI condition ratings of Good, Fair, and Poor will no longer depend on whether a pavement section is within an urbanized area with a population greater than 1 million. Therefore, urbanized area data for significant progress determinations of pavement condition targets is no longer necessary. (See discussion sections for 490.313(b)(1) for more detail.) Discussion of 490.109(e)(1) General Discussion of Significant Progress Determination for Individual NHPP Targets The FHWA revised the language in section 490.109(e)(1) to correct a typographical error and replaced the VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 word ‘‘and’’ with ‘‘through.’’ The final rule reads ‘‘. . . established by the State DOT for the NHPP measures described in 490.109(c)(1) through (c)(3).’’ This error was noted by AASHTO and the Connecticut and Virginia DOTs. The AASHTO and Connecticut DOT commented that significant progress should only be determined based on the required targets in section 490.105(d)(1), not any additional targets State DOTs have voluntarily chosen to establish in section 490.105(e)(3). The language in section 490.109(e)(1) of the NPRM and final Rule is consistent with this. Section 490.109(e)(1) specifically says that FHWA will not assess the progress achieved for any additional targets a State DOT may establish under section 490.105(e)(3). No change to the final rule is required. Discussion of 490.109(e)(2) Significant Progress Toward Individual NHPP Targets The FHWA retains the language in section 490.109(e)(2), which states that for each NHPP target, progress toward the achievement of the target would be considered significant when either of the following occur: (1) The actual condition/performance level is equal to or better than State DOT Baseline Performance Period Report; or (2) actual condition/performance is equal to or better than the established target. To make the comparisons in a consistent manner, the language in sections 490.313(f) and 490.409(c) includes the precision level (i.e., decimal places) for the measures, which is to be calculated to the one tenth of a percent (0.1 percent). The Colorado DOT expressed their support for the 0.1 percent achievement threshold. In the first performance measures NPRM, which addresses safety, FHWA proposed in section 490.211 of the NPRM a statistical evaluation approach for determining significant progress. Comments received on the Safety NPRM indicated that it was too complicated and seemed arbitrary. In the Final Rule for safety performance measures, FHWA changed its approach from statistical evaluation to improvement over baseline. Therefore, in this final rule, FHWA is retaining the determination methodology proposed. The following summarizes the comments on the proposed methodology for determining significant progress. In regard to the proposed significant progress methodology, the comments from AASHTO said that ‘‘the approach must be retained in the final rule.’’ They also added that the approach would ‘‘give State DOTs flexibility to establish aggressive targets PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 5919 if desired but will not result in States being punished if they do not meet those targets.’’ Missouri DOT also supports the approach as ‘‘straightforward and easy to determine.’’ Oregon DOT voiced their support by indicating that it is ‘‘reasonable and accommodates both increasing and decreasing pavement conditions.’’ Minnesota DOT expressed their support, stating that it would allow States to establish declining targets, but still achieve significant progress. While many State DOTs did not specifically mention their support, they indicated their general support for the AASHTO’s letter in support of the proposed approach. These State DOTs included Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Maryland, Michigan, Missouri, Montana, New Jersey, North Dakota, Pennsylvania, South Dakota, and Wyoming. The support of the proposed approach was also expressed by the Metropolitan Transportation Commission and the Mid-America Regional Council. However, some commenters expressed disagreement with FHWA’s proposed method for determining significant progress. Washington DOT and the PSRC commented that ‘‘significant change’’ should be based on a statistical evaluation of the data submitted by the State DOT and suggested use of the standard deviation of the data to determine the level of significance. The FHWA considered some statistical methods for significant progress determination approach during the time of preparing the NPRM. However, this option was determined to be unfeasible because the magnitude of ‘‘statistically significant change’’ in condition/performance would have to be an arbitrarily selected significance level. Without an established target value, determining the magnitude of ‘‘statistically significant change’’ was not possible. In addition, in the final rule for safety performance measures, FHWA changed its approach from statistical evaluation to improvement over baseline after receiving comments that the statistical methods were ‘‘too complex and difficult.’’ The AASHTO and the Connecticut and Iowa DOTs stated that the use of 0.1 percent was arbitrary. In the discussion of section 490.109 of the NPRM, FHWA found that any improvement better than the baseline condition/performance, which represents a 0.1 percent improvement, would be viewed as significant progress. Although the AASHTO supported the proposed approach for determining significant progress, they argued that 0.1 percent improvement above the baseline ‘‘seems E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5920 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations arbitrary with no basis.’’ The Connecticut, Iowa, and Washington DOTs made similar comments as well. Oregon DOT cited that 0.1 percent of Oregon’s Interstate System equates to 1.5 miles for Oregon and argued that the 0.1 percent tolerance is too ‘‘tight.’’ They suggested 0.5 or 1 percent tolerance. Illinois DOT requested clarification on how ‘‘significant progress’’ is defined, asking whether it is any improvement made toward the target, a measure of a partial percentage point, or something else. As stated above, the proposed approach for determining significant progress is based on comparison between: (1) Target and the actual condition/performance and (2) baseline condition/performance and the actual condition/performance. To make the comparisons in a consistent manner, the language in sections 490.313(f) and 490.409(c) included precision level (i.e., decimal places) of the measures, which is to be calculated to the one tenth of a percent. By specifying precision levels for the measures, FHWA believes the comparisons in significant progress determinations would be done in a consistent manner. The FHWA understands decimal places of measures could be translated to a tolerance level in making significant progress, as Oregon DOT’s example indicated. However, FHWA believes a larger tolerance level with less precision level could work against State DOTs. For example, with a 1 percent tolerance (i.e., measures round to the nearest to 1 whole percent), if a State DOT actually made 0.1 percent improvement above the baseline condition/performance, it would not be considered significant progress because the 0.1 percent would be rounded down and the condition/ performance level would be considered as equal to the baseline condition/ performance. Therefore, FHWA retains the proposed language. The Center for American Progress and Transportation for America stated that 2-year target establishment and significant progress determinations should be required for MPOs. They argued that accountability requirements should be the same for State DOTs and MPOs. In 23 U.S.C. 119(e)(7), biennial significant progress determinations under section 490.109 only apply to State DOT NHPP targets. There is nothing in the statute that requires a similar assessment with similar consequences for MPOs. Therefore, FHWA does not have the statutory authority to make significant progress determination on MPO targets. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 The TEMPO recommended expanding section 490.109(e)(2) to allow FHWA Division Administrators to determine significant progress. As stated in section 490.109(a), FHWA will assess each State DOT target for the NHPP measure to determine the significant progress made toward its achievement with the method prescribed in section 490.109. The FHWA believes the method outlined in section 490.109 provides a fair and consistent process to determine compliance across State DOTs. Although FHWA Division Offices will notify State DOTs with the results of the significant progress determination, FHWA clarifies that no one individual in FHWA will make the significant progress determination at his or her discretion. Following the publication of the final rule, FHWA will publish guidance on the timing of significant progress determinations and notifications. Therefore, FHWA retains the language in section 490.109(e)(2), as proposed in the NPRM. Discussion of 490.109(e)(3) Phase-In of New Requirements for Interstate System Pavement Condition Measures The FHWA proposed a phase-in of new requirements for Interstate pavement condition measures. Only at the midpoint of the first performance period and only for the targets for Interstate System pavement condition measures in section 490.307(a)(1) and (a)(2), FHWA would not make a determination of significant progress toward the achievement of 2-year targets for these measures. The FHWA received comments related to the phase-in of Interstate System pavement condition measures in section 490.105(e)(7), but no direct comments on the phase-in proposed in section 490.109(e)(3). Since these measures are being phased-in, FHWA will not determine significant progress until after the measures are established and the State DOTs have had time to complete a biennial reporting cycle. As discussed in section 490.105(e)(7), FHWA retains the language in section 490.105(e)(7)(ii) that for the first performance period only, State DOTs are not required to report their 2-year targets and baseline condition/performance for the Interstate pavement condition measures in their Baseline Performance Period Report. Accordingly, FHWA will classify the assessment of progress toward the achievement of targets for the Interstate pavement condition measures as ‘‘progress not determined’’ at the 2-year significant progress determination. The FHWA retains the language in section 490.109(e)(3) as proposed in the NPRM. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 (See discussion for section 490.105(e)(7) for more details.) Discussion of § 490.109(e)(4) Insufficient Data and/or Information The FHWA proposed that if a State DOT does not provide sufficient data or information necessary for FHWA to make significant progress determination for each bridge or pavement condition target, FHWA would determine that the State DOT has not made significant progress toward the achievement of the applicable individual targets. The State DOTs of Connecticut, Oklahoma, and Oregon requested that the phrase ‘‘does not provide sufficient data and/or information’’ be clarified. In response to these comments, FHWA revised section 490.109(e)(4). The revised text in section 490.109(e)(4)(i) specifies that all measures must meet the reporting requirements in section 490.107. If a State DOT does not submit a required report, targets, or other information as specified in section 490.107, then FHWA will determine that the State DOT has not made significant progress toward the achievement of NHPP target. Section 490.109(e)(4)(ii) specifies if FHWA determines that a total mainline lane-miles of missing, invalid, or unresolved sections for Interstate System is 5 percent or more, as described in section 490.313(b)(4)(i), then FHWA will determine that the State DOT has not made significant progress toward the achievement of targets for the Interstate System pavement condition measures in section 490.105(c)(1). Section 490.109(e)(4)(iii) specifies if FHWA determines that a total mainline lane-miles of missing, invalid, or unresolved sections for non-Interstate NHS is 5 percent or more, as described in section 490.313(b)(4)(i), then FHWA will determine that the State DOT has not made significant progress toward the achievement of targets for the nonInterstate NHS pavement condition measures in section 490.105(c)(2). (See discussion for section 490.313(b)(4) for further discussion and information on the revisions to this section.) Section 490.109(e)(4)(iv) specifies that for the NHS bridge condition measures in section 490.105(c)(3), if a State DOT’s reported data is not cleared in the NBI as of June 15, then FHWA will determine that the State DOT has not made significant progress toward the achievement of targets for the bridge condition measures in section 490.105(c)(3). As stated above in section 490.109(e)(2), the approach for determining significant progress is E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 based on comparison between: (1) Target and the actual condition/ performance and (2) baseline condition/ performance and the actual condition/ performance. Section 490.109(e)(4)(v) provides an approach for determining significant progress when reported data for baseline condition/performance is determined ‘‘insufficient’’ in the year in which the Baseline Performance Period Report is due to FHWA. If the data for baseline condition/performance is determined insufficient, the comparison between the baseline condition/ performance and the actual condition/ performance cannot be made. In this situation, FHWA will make the significant progress determination for that measure by comparing the target to the actual condition/performance. The FHWA will determine that a State DOT has not made significant progress toward the achievement of a target if data for the baseline condition/ performance was determined insufficient previously, and the actual condition/performance level is not equal to or better than the established target. Discussion of § 490.109(e)(5)(i) Extenuating Circumstances The FHWA amended the language for section 490.109(e)(5)(i) related to the list of extenuating circumstances that may prevent a State DOT from making significant progress. In the final rule, FHWA added language to clarify that extenuating circumstances include the sudden discontinuation of Federally furnished data due to a lack of Federal funding. This text was added to clarify that the lack of funding is not a standalone reason, but it is tied to the data access associated with target establishment and evaluation. The list of extenuating circumstances details issues that could be considered outside of State DOTs ability to make significant progress toward achieving targets. If a State DOT encounters these extenuating circumstances, State DOTs would document the explanation in their performance progress report. If the explanation is accepted by FHWA, then the associated NHPP targets would be excluded from FHWA significant progress determinations. Comments from a private citizen 39 supported FHWA’s proposal. The AASHTO comment letter suggested adding the following additional extenuating circumstances: (1) Lack of Federal funding through a long-term surface transportation program; (2) Cost inflation beyond 39 Nicholas Cazares, Docket Letter FHWA–2013– 0053–0078. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 assumed levels; and (3) another cause reported by the State not covered under the previous circumstances. The Connecticut DOT made identical comments. The California DOT commented that the situations considered extenuating circumstances are too narrow. They suggested broader circumstances to include fiscal limitations and project delivery constraints. The Illinois DOT recommended that the rule account for the uncertain funding impacts by explicitly recognizing how this might inhibit the achievement of targets for significant progress requirements and determinations in section 490.109. The Colorado and Washington DOTs sought clarification on whether a lack of funding would be considered an extenuating circumstance that would result in a finding of ‘‘progress not determined’’ by FHWA. The Minnesota and North Carolina DOTs commented that budget uncertainties could result in a lack of funding and should be an extenuating circumstance. The Colorado DOT requested clarification on whether a sudden, unforeseen reduction in Federal funding would be considered an extenuating circumstance. The Oregon DOT commented that the discussion of proposed extenuating circumstances covers a range of possible circumstances, but it is also limited to those specifically listed in the rule. The Oregon DOT suggested including some language to allow States to describe circumstances not on the list. They added that there could be situations not yet thought of that should be open for consideration. The Tennessee DOT proposed that the significant progress determinations account for decreases in anticipated Federal funding, inflation above expected rates, or other unforeseeable reasons. The Washington DOT commented that FHWA should consider extenuating circumstances documented by a State DOT in the assessment of progress toward the achievement of NHPP targets in the relevant State Biennial Performance Report. The majority of the above comments wanted to add financial uncertainty to the list of extenuating circumstances. As noted in the NPRM, FHWA understands that there are many external factors that could impact the condition/performance and the State DOT’s ability to make significant progress, including financial uncertainty. However, FHWA believes that the frequency of target establishment, and the ability to adjust 4-year targets at the mid-point of a performance period creates a relatively short forecast window that should allow PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 5921 State DOTs to consider the impacts of funding shortfalls and uncertainty (e.g., lack of funding for investment, cost escalation, and others) in initial targets and any subsequent adjustments. As discussed in section 490.105(e)(6), the State Biennial Performance Report has the appearance that State DOTs must consider uncertainties 2 years in advance. In truth, the duration that State DOTs have to consider uncertainties is shorter than 2 years. For example, the 2year target established in 2018 is not actually submitted until October 2018 when the first State Biennial Performance Report is due. Therefore, while it reflects a 2-year period (2018 and 2019), it is in place for less than 2 years (i.e., October 2018 to December 2019). (See discussion section for section 490.105(e)(6) for additional details of the timing of reports and the impact on targets.) The FHWA does not intend to use the significant progress determination process to be punitive or to lead State DOTs to simply establish easy targets. The FHWA believes one purpose of establishing targets and assessing progress is to encourage State DOTs and MPOs to establish datasupported targets that consider anticipated resources and potential uncertainties. Establishing targets and assessing progress also encourage State DOTs to provide data-supported explanations of condition/performance changes. If a State DOT did not make significant progress because of the absence of a long-term surface transportation program, unanticipated cost escalation, and other reasons, FHWA expects that State DOT would provide data-supported explanations for not achieving significant progress. The FHWA strongly believes transportation performance management is not just about making significant progress. It is also about effectively communicating to Congress and the public how the absence of a long-term surface transportation program, unanticipated cost escalation, and other circumstances are impacting the condition/performance of the transportation infrastructure. Moreover, FHWA believes the determination process must be meaningful and bring accountability to the program as MAP– 21 and FAST Act intended. Therefore, FHWA believes that adding more circumstances to exclude State DOTs from the determination will decrease the level of accountability. For these reasons, FHWA is keeping the list of extenuating circumstances short. The FHWA modified the language in section 490.109(e)(5) only to include the E:\FR\FM\18JAR5.SGM 18JAR5 5922 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 discontinuation of Federally furnished data due to a lack of Federal funding. In section 490.109(e)(5)(ii), FHWA proposed to accept a State DOT’s explanation if it pertains to the extenuating circumstances listed in section 490.109(e)(5)(i). The FHWA would classify the progress toward achieving the relevant NHPP targets as ‘‘progress not determined,’’ and those targets will be excluded from the determination. The FHWA did not receive any substantive comments regarding this paragraph. Therefore, FHWA retains the language in section 490.109(e)(5)(ii) in the final rule. Discussion of § 490.109(f) Performance Achievement Requirements The AASHTO, Oregon DOT, and a private citizen 40 support basing performance achievement on two consecutive FHWA determinations. This provides State DOTs some opportunity to improve their performance before being assessed the penalty. The ASCE took the opposite view and argued that if a State DOT did not make significant progress after two consecutive reviews, intervention by the DOT should be immediate. They argued that the proposed timeline for penalties did not represent the type of speedy accountability that the public expects and that it will benefit our transportation system. Section 119(e)(7) of Title 23 of the U.S.C. required States to describe the actions they will take to achieve targets after they fail to achieve significant progress on two consecutive determinations. Subsequently, FAST Act removed the phrase ‘‘two consecutive’’ in 23 U.S.C. 119(e)(7) and added that the description of actions will be included in the biennial performance report under 23 U.S.C. 150(e). Pursuant to 23 U.S.C. 119(e)(7), FHWA amended section 490.109(f) so that State DOTs are required to describe the actions they will take to achieve targets after they fail to achieve significant progress for each FHWA biennial determination. The FHWA believes this required change in section 490.109(f) will ensure the accountability ASCE urged in their comment. The Southeast Pavement Preservation Partnership commented that the short time horizon given to recognize improvement in the pavement network may force States into a ‘‘worst-first’’ mentality for the preservation of pavements. The FHWA agrees that indiscriminately attempting to improve condition could lead to a ‘‘worst-first’’ mentality. The FHWA also realizes that 40 Nicholas Cazares Docket Letter FHWA–2013– 0053–0078. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 the proposed language in section 490.109(f) is inconsistent with the principle of ‘‘Recognize Fiscal Constraints’’ 41 in the NPRM preamble. In addition, FHWA emphasizes that, as discussed in section 490.105, State DOTs and MPOs have the authority to establish their targets at their discretion. The MAP–21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. Therefore, FHWA amended section 490.109(f)(1) through (f)(3) by replacing the phrase ‘‘improve . . . condition’’ with ‘‘achieve targets’’ to be consistent with the nine principles and 23 U.S.C. 119(e)(7). Similarly, in section 490.109(f)(6), FHWA replaces the phrase ‘‘improve progress’’ with ‘‘achieve targets’’ to be consistent with the statutory language in 23 U.S.C. 119(e)(7). Discussion of Section 490.111 Incorporation by Reference The FHWA proposed to incorporate by reference several items. First, FHWA proposed to incorporate the HPMS Field Manual to codify the data requirements for measures, as discussed throughout part 490, and to be consistent with the HPMS reporting requirements. Second, FHWA also proposed to incorporate by reference the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges (NBI Coding Guide), which contains all of the NBI items listed in subpart D. Finally, FHWA proposed to incorporate by reference five permanent AASHTO Standards (M328–14, R36–13, R43–13, R48–10, R57–14) and three provisional AASHTO Standards (PP68–14, PP69– 10, PP70–10) to codify the methods and devices used to collect data for the metrics (i.e., IRI, Cracking Percent, rutting, and faulting). The FHWA proposed specific versions of each item in the NPRM with an understanding that future changes to the HPMS Field Manual, NBI Coding Guide, and AASHTO Standards will be subject to Federal Register notices. Because of the incorporation by reference, FHWA had posted the Proposed HPMS Field Manual 2015 for 2nd Performance Measure NPRM,42 the 10 proposed 41 Nine principles used in the development of proposed regulations for national performance management measures under 23 U.S.C. 150(c), www.regulatons.gov, Docket FHWA–2013–0053 ‘‘Recognize Fiscal Constraints’’—provide for an approach that encourages the optimal investment of Federal funds to maximize performance but recognize that, when operating with scarce resources, performance cannot always be improved. 42 Proposed HPMS Field Manual 2015 for 2nd Performance Measure NPRM: Docket Document FHWA–2013–0053–0050: http:// PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 AASHTO Standards, and the NBI Coding Guide on the docket. The Mid-America Regional Council expressed general support for the incorporation by reference of the proposed documents, stating ‘‘the use of widely accepted standards and calculation methods will facilitate the establishment of targets and monitoring of progress toward their achievement.’’ The FHWA agrees and appreciates the comment. The Alabama DOT recommended that FHWA consider adding AASHTO R56– 10 (Standard Practice for Certification of Inertial Profiling Systems) in the final rule. The FHWA appreciates the need for certification of the Inertial Profiling Systems used in the HPMS data collection and included a requirement for equipment certification as part of the Data Quality Management Program in section 490.319(c). It is expected that State DOTs would specify AASHTO R56 or an equivalent standard as their method for equipment certification in the State Data Quality Management Program. The AASHTO, Alaska DOT&PF, and Connecticut DOT recommended modifying the wording of the proposed rule ‘‘so that any proposed changes to items (b)(1) or (b)(2) would be subject to public notice and comment by State DOTs and other affected parties’’.43 The FHWA agrees that any updated versions of the HPMS Field Manual and the AASHTO Standards will not be incorporated by reference without public notice and comment. The AASHTO and the State DOTs of Connecticut, Florida, Mississippi, North Dakota, Iowa, and Oregon commented that AASHTO standards are developed in a voluntary manner and are used by State DOTs in a voluntary manner. Commenters noted that incorporating these standards into a Federal rulemaking is not their intended use and could cause unintended consequences. The FHWA recognizes the voluntary process used to develop AASHTO Standards and appreciates the efforts of State DOTs in creating them. However, the five permanent AASHTO Standards incorporated by reference in section 490.111 of this final rule contain well-known protocols for data collection, equipment requirements, and data compilation. These protocols are useful in determining pavement performance. Since these standards have been balloted and approved by a www.regulations.gov/#!documentDetail;D=FHWA2013-0053-0050. 43 State DOTs of Alaska, Connecticut, Idaho, Montana, North Dakota, Oklahoma, Oregon, South Dakota, and Wyoming. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations majority of State DOTs, it is preferable that State DOTs use the appropriate parts of these standards to guide quality data collection, even though additional calculations may be needed to meet the reporting requirements for the HPMS Field Manual. The AASHTO and the State DOTs of Connecticut, Iowa, Minnesota, Missouri, and North Dakota recommended that FHWA ‘‘develop a mechanism . . . to ensure that the most recent version of AASHTO standards is used or not used as appropriate.’’ Similarly, Oregon DOT recommended that FHWA provide States with some flexibility in which versions of AASHTO Standards they use. The Oregon DOT recommended that instead of directly referencing specific standards the final rule, FHWA should provide separate guidance for this information. The FHWA appreciates the desire for flexibility in application of standards and the latest versions. However, Federal law requires a formal comment and review process for any modification of a document incorporated by reference in a rulemaking. The FHWA may undertake this process in the future, but there is no mechanism to automatically ensure that the latest versions of AASHTO Standards be used. The final rule retains the language in section 490.111(b). The TEMPO, Oregon DOT, and Texas DOT expressed concern over FHWA’s proposal to use provisional AASHTO Standards that will be refined following completion of an ongoing study on cracking and rutting measurements. When provisional standards become full standards, changes may occur in the reported data, causing inconsistencies from previously reported data. The FHWA agrees with the commenters, and removed references to provisional AASHTO standards PP67, PP68, PP69, and PP70 to ensure consistency in reporting. Specific guidance on data collection and reporting for the topics covered by these provisional standards has been added to the HPMS Field Manual, which is posted on the docket. (See discussion section for section 490.309 for more details.) In addition, the Center for Auto Safety, PSRC, and Public Resource.org expressed concern over the availability of the documents incorporated by reference. The PSRC commented that ‘‘section 490.111 lists AASHTO Standard Specifications that States must follow when collecting and calculating pavement distress; however, these specifications are not freely available. Please consider providing access to the AASHTO standards for pavement data collection as a component of MAP–21 VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 implementation.’’ In a joint letter, the Center of Auto Safety and Publicresource.org expressed concern that the AASHTO standards incorporated by reference were not freely available to the public. While FHWA acknowledges that the proposed AASHTO Standards are available for purchase on the AASHTO Web site, they were posted on the docket for review by the public. Furthermore, AASHTO provides copies of all Standards to State DOTs without charge. Therefore, FHWA retains the language as proposed. The Louisiana DOT commented that the final rule should specify that those documents incorporated by reference are ‘‘revised to all English units of measure to be consistent and to eliminate the numerous metric to English conversion rounding issue.’’ The HPMS Field Manual that is incorporated in the final rule indicates that English units are the preferred method for measurement. However, there is no prohibition on using metric devices for measurement and converting measurements to the English standards. State DOTs electing to convert metric measurement are guided to follow the accepted U.S. standard process 44 for conversions. Regarding the proposed HPMS Field Manual, Wisconsin DOT asked when the proposed file that reflects these changes would be available if the HPMS Field Manual would continue to be rereleased every year. In response to those questions, the final rule incorporates the revisions to the HPMS Field Manual, which is available on the docket with the final rule. The incorporation by reference requires that future updates to the HPMS Field Manual be made through a formal public comment and review process. The PSRC asked which standards should be used to collect IRI data. The PSRC also asked for clarification on the following: (1) Whether bituminous road would include those with a chip seal wearing surface; (2) whether the AASHTO method required for distress evaluation is also appropriate for chip sealed surfaces; and (3) whether the percent cracking distress only refers to fatigue and/or alligator cracking. In response, the HPMS Field Manual has been revised to clarify the standards to be used to collect and report all pavement measurements to the HPMS. The AASHTO commented that in section 490.309(a), the word ‘‘include’’ should be changed to ‘‘are.’’ The use of ‘‘include’’ suggests that there could be 44 Process is defined in Publication SP 1038–2006 from the National Institute of Standards. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 5923 additional pavement metrics or requirements that are not discussed in this section or elsewhere in the NPRM. The FHWA appreciates the comment and has amended the language in section 490.309(a) to clarify the extent of the metrics and data elements State DOTs are required to report. B. Subpart C National Performance Management Measures for Assessing Pavement Condition Discussion of Section 490.301 Purpose To implement the statutory provisions under 23 U.S.C. 150(c)(3)(A)(ii)(I) and(II), FHWA proposed a statement of purpose which required the establishment of performance measures for State DOTs to use to assess the condition of pavements on the Interstate System and the NHS excluding the Interstate System. No comments specific to this section were received, although Washington DOT concurred with the concept that MAP–21 provided more flexibility in the use of Federal funds. Discussion of Section 490.303 Applicability This section described the applicability of this rule to highways on the NHS for purposes of implementing the NHPP. Comments from 19 State DOTs (Arkansas, Colorado, Connecticut, Florida, Georgia, Iowa, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, and Washington State), and AASHTO expressed concerns about the requirements to report pavement conditions on routes not owned or operated by States. The commenters also inquired as to whether required reporting included ramps and similar connectors. In the NPRM, FHWA indicated that the pavement measure would apply to all mainline highways on the NHS. The 19 State DOTs identified above, the AASHTO, AMPO, ARC, Center for American Progress, COMPASS, NARC, National Center for Pavement Preservation, NYMTC, and one anonymous commenter generally agreed that State DOTs and MPOs have no authority or control over maintenance and/or investment decisions on some of the assets on NHS. Therefore, commenters said State DOTs and MPOs should not be held responsible for the reporting of data. The commenters suggested that the responsibility for data collection, reporting, and programming rests with the entities that own the highway system. Similar comments were raised, as discussed in section 490.105(d), regarding highway E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5924 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations ownership as it pertains to the accountable entity to establish and achieve targets. The statutory language in MAP–21 requires that the performance management requirements under 23 U.S.C. 150 and NHPP under 23 U.S.C. 119 apply to the entire NHS and Interstate System, not to a subset of the NHS (e.g., ‘‘State DOT owned or operated Interstate System,’’ ‘‘State DOT owned or operated National Highway System,’’ and others) as the commenters would prefer. The MAP–21 does not define the terms ‘‘State’’ and ‘‘MPOs’’ for purposes of 23 U.S.C. 150 and 119 as something other than what is already defined elsewhere in MAP–21. Accordingly, FHWA retains the language in section 490.303 for purposes of the performance management requirements in 23 U.S.C. 150 and 119(e)(7), which require performance measures for the entire NHS and Interstate System within the State. The FHWA evaluated the extent of the enhanced NHS that is not owned or maintained by State DOTs. In that analysis,45 FHWA found that a majority of State DOTs own at least 90 percent of the Interstate (40 States) and nonInterstate NHS (28 States) within the State boundary. The FHWA expects State DOTs to coordinate with other entities that own and maintain portions of the NHS in support of these new performance requirements. The New York DOT and Seattle DOT provided comments to express concern with the focus on the NHS. They commented that this system only comprises a portion of the roadways they need to maintain and improve. The FHWA appreciates these comments and recognizes the challenges that transportation and planning organizations are faced with in managing the transportation system under tight budgetary constraints. However, 23 U.S.C. 150 requires the measure to apply to both the Interstate System and the non-Interstate NHS and precludes FHWA from establishing measures outside those areas described in 23 U.S.C. 150(c). Therefore, FHWA cannot change the applicability of the measures beyond the limits defined in this section of title 23 U.S.C. (See discussion on target scope for the measures in the discussion section for section 490.105(d)(1).) The National Highway System routes for pavement conditions are specifically defined as mainline highways excluding ramps and connectors. The comments received on the proposed requirement to limit the applicability to the mainline highways of the NHS for the pavement 45 Docket Document. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 measure were supportive of this requirement. Discussion of Section 490.305 Definitions The NPRM proposed a number of definitions related to pavement performance to clarify specific meaning in Subpart C. Where additional clarification is needed, the HPMS Field Manual is to be used for interpretation. The Ada County Highway District (ACHD) commented that both the definition and means of computing Cracking Percent are unclear. They requested that the final rule either describe how the metric should be computed or reference the HPMS Field Manual, whose definition is clearer. The Iowa DOT expressed concern over the definition of PCC pavements. They noted that the definition does not appear to cover all possible types of cracks and is overly simplistic. As a result, a very small crack could cause an entire pavement slab to be assigned a ‘‘failing’’ grade. They suggested that the definition use ‘‘percent slabs cracked’’ for PCC overlay projects. The FHWA agrees with this concern and has made changes to the thresholds for PCC pavements described below and in revisions to the HPMS Field Manual. The Portland Cement Association commented that composite pavement should be added to the rule as a fourth pavement type. They remarked that composite pavements consist of an asphalt overlay of existing concrete pavement (either jointed or Continuously Reinforced Concrete Pavement). They argued that composite pavement behaves differently than asphalt pavements and will respond differently to preservation, repair, rehabilitation, and replacement requirements. As such, defining composite pavement as a separate pavement type will provide a more consistent assessment of roughness and distress. While there is merit to this suggestion, not all State DOTs have a complete inventory indicating the limits of composite pavement on their networks. The FHWA has concerns about the cost of requiring this level of detail and does not find it justified at this time. Therefore, the comment was not accepted. An anonymous commenter requested that FHWA add additional details to the pavement cracking definition, noting that the definition in HPMS is too vague. The FHWA does not think the definition used here is too vague; however, the details about measurement and reporting have been revised in the sections that follow to improve clarity. PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 The Oregon DOT expressed concern with the definition for Cracking Percent, spalling, and visible defects in the proposed rule. In addition, the commenter stated that the proposed unintentional break cracking definition is not included in AASHTO standards or the HMPS Field Manual. The definitions in the final rule are identical to those used in the HPMS Field Manual and are intended to cover the typical conditions that are typically measured on highway pavements. The NPRM defined a term called Pavement Surface Rating that might be used with manual evaluation of pavement surfaces. The Alabama DOT stated that PSR should refer to ‘‘Present Serviceability Rating’’, rather than ‘‘Pavement Surface Rating.’’ The FHWA acknowledges the error in the term used and has revised the language the definition to read ‘‘Present Serviceability Rating’’ (PSR) as ‘‘an observation based system used to rate pavements.’’ The prohibition on its use was deleted from the definition because the use of PSR is permitted in the final rule for reporting conditions on certain pavement sections as discussed in sections 490.309 and 490.311. In a joint submission, the State DOTs of Vermont, Maine, and New Hampshire commented that the definition for cracking in the proposed rule was unclear and stated that more work is necessary to identify data collection requirements and interpretation of the cracking performance metric. In addition, the commenters expressed concern with the proposed data collection methodology for rutting. The commenters said the 5-point system can underestimate rutting measurements and the differences between the 5-point system and the automated transverse data profile can lead to inconsistent data presentation at the national level. The FHWA agrees that there is some ambiguity in the description of the methods used for collecting and reporting cracking and rutting and has made changes in the sections that follow. The definitions used in the NPRM are adequate and have been retained in the final rule. The Louisiana DOT expressed concern with several definitions in the proposed rule and urged FHWA to develop standardized definitions. In addition, the commenter remarked that the proposed rule did not include a definition for transverse crack. The issues raised by Louisiana are covered in the specific sections of the final rule and discussed in the sections describing the measurement and reporting of each distress. In the final rule, FHWA adds a definition for a ‘‘Pavement Section’’ as a nominally 0.1 mile-long reported E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 segment that defines the limits of pavement condition metrics required by FHWA. The added definition is to clearly differentiate between reported condition metric sections and dynamically segmented condition metric sections for calculating measures and determining missing, invalid, and unresolved data. Please see discussion in section 490.309 for more details. The FHWA proposed a definition for the term ‘‘sampling’’ as ‘‘a means for measuring pavement conditions on a short section of pavement as a statistical representation for the entire section.’’ The FHWA also proposed in the NPRM that sampling is not to be used to measure or rate Interstate and nonInterstate NHS pavement conditions. As discussed in section 490.309, FHWA retains the language stating that no sampling of condition metric and inventory data items is allowed for required pavement condition data and their inventory data items for performance measures or condition rating. To ensure consistency, FHWA revised the definition of sampling by adding ‘‘Sampling is not to be used to measure or rate NHS pavement conditions.’’ This reflects the requirements in sections 490.309 and 490.313(e). Discussion of Section 490.307 National Performance Management Measures for Assessing Pavement Condition This section proposed four performance measures required by 23 U.S.C. 150(c)(3)(A)(ii)(I) and(II) for measuring pavement conditions, two for the Interstate System, and two for the NHS excluding the Interstate System. Twenty comments were received from highway agencies, planning organizations, local governments, and industry. In summary, the issues raised included: (1) Not including traffic in the measures; (2) the use of the terms ‘‘Good,’’ ‘‘Fair,’’ and ‘‘Poor;’’ (3) inconsistency in how those terms are determined for pavements and bridges; and (4) finalizing the enhanced NHS. In the NPRM, FHWA asked for comments on whether other factors such as facility location, functional class, level of use, or environment should be considered in the design of the pavement performance measure. The Louisiana DOT disagreed with the language in the proposed rule. The commenter argued that traffic is an important measure of pavement condition because of the impact that truck traffic has on the long-term structural viability of pavements and bridges. The AMPO, NYMTC, and Washington DOT provided comments VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 that suggested the pavement measures be weighted by the level of traffic on the roadway. The FHWA agrees that traffic impacts pavement conditions. However, FHWA believes incorporating traffic volume in the pavement condition measures could unintentionally force the State DOTs and MPOs put more emphasis on high-trafficked highway sections. The FHWA believes incorporating traffic in the investment decisionmaking should be dictated by local priorities. So, FHWA does not incorporate traffic in the pavement condition measures in the final rule. A private citizen, William Grenke, commented that there should be separate ratings for pavement performance and pavement maintenance level of service. While there is merit to this suggestion, the statute limits pavement performance in this rule to pavement conditions. The AASHTO, Maryland SHA, and Minnesota DOT suggested expanding the terms ‘‘Good’’, ‘‘Fair’’, and ‘‘Poor’’ to describe the level of repair needed to address each respective condition level. The Connecticut DOT opposed making this change. The Memphis MPO expressed support for the transition to a numerical based scoring system to assess the quality of NHS roads and bridges as well as Interstate pavement. The commenter argued that using numerical scoring eliminates the ambiguity associated with qualitative scores (e.g., Good, Fair, or Poor). In selecting the terms and calculation methodologies in the final rule, FHWA intended to identify pavement conditions where ‘‘Good’’ suggests no major investment is needed and ‘‘Poor’’ suggests conditions where major investment for pavement reconstruction is needed. ‘‘Fair’’ pavement conditions suggest that minor expenditures for maintenance and repairs are expected. The MAP–21 delegates the selection of actions to States. It would be inappropriate for FHWA to prescribe any actions needed to address a respective condition level. The FHWA agrees with comments from Connecticut DOT that no change should be made to these terms and definitions as they are terms commonly understood by the public. The AASHTO, NEPPP, and NYMTC commented that the focus on Good and Poor conditions will not promote management practices to preserve existing conditions. The focus on Good and Poor pavements conditions for measuring performance is not intended to prescribe State DOT management practices. The statute makes preservation activities eligible for NHPP funding and State DOTs may find that PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 5925 preservation programs are cost effective ways to achieve performance targets. However, FHWA has no authority to require them to use preservation programs. The South Carolina DOT commented that the rating system of Good, Fair, and Poor as a national standard presents a conflict. By setting new metrics for measuring system performance nationally, it challenges State DOTs to tell a new story about the condition of their assets. If State DOTs have traditionally used those terms in their own metrics to communicate the condition of our asset to the public, stakeholders, and legislators, it could give the appearance that State DOTs are ‘‘manipulating the information.’’ The South Carolina DOT also commented that they have no issue with complying with the rule, but recommended that FHWA grant State DOTs the discretion in their reporting to remain consistent in what and how they have been communicating the condition of their assets. The AASHTO, NYSAMPO, and the State DOTs of California, Connecticut, Michigan, and Oklahoma suggested that the Fair condition level be defined and added to the list of four required measures. The Washington DOT commented that they did not see the need for a Fair category, and were in agreement with FHWA’s use of Good and Poor. The FHWA believes the net increase or decrease of percent Fair network condition does not easily indicate improvement or declining condition. For example, if there was an increase in percent Fair, it could be the result of declined condition of pavement sections that were previously rated as Good condition or improved condition of pavement sections that were previously rated as Poor condition. Therefore, the net increase (or decrease) in percent Fair may not adequately portray condition improvement (or decline) for the highway network. The FHWA believes that focusing on Good and Poor conditions will better indicate improvement or decline of network condition and also will better inform the public about pavement conditions and what they should expect from investments in highway pavements. Finally, the requirement to establish targets for each of the final four measures does not prohibit a State DOT or MPO from focusing on maximizing Fair conditions. For these reasons, FHWA retains the four measures in the final rule. A few commenters commented that the approaches to determining Good, Fair, and Poor conditions should be consistent for pavements and bridges. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5926 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations The FHWA proposed approaches that determine pavement condition levels based on the predominance of metric condition levels and bridge condition levels based on the lowest metric condition level. In the NPRM, FHWA discussed how each of these approaches supported current practice and the findings of pilot studies 46 conducted prior to the rulemaking effort. Although the methods for determining pavement and bridge condition levels are different, the results of the two methods discussed in the studies provide sound assessments of the condition level of pavements and bridges. Consistency or using a single methodology to determine pavement and bridge condition level is desirable from a process standpoint. However, having assessments that best reflect the condition of pavements and bridges is more desirable. It is also important to note that pavements and bridges are two distinct types of assets with distinct performance characteristics. Therefore, having different methodologies for determining their condition levels should not be unexpected. The FHWA retains the two methodologies for assessing the condition level of pavements and bridges in the final rule. The TEMPO expressed concerns that the criteria used to identify the NHS are still being developed for implementing performance measures applicable to the NHS. They commented that if this issue is not addressed before reporting and evaluation deadlines are implemented, State DOTs and MPOs could expend significant resources collecting, analyzing, and maintaining data that is not part of the final NHS. They urged FHWA to delay implementation of the new pavement requirements until the limits of the NHS are finalized. As discussed in combined discussion sections for sections 490.105(e)(1) and 490.105(f)(1), FHWA cannot delay the due date of the State DOT target establishment or the State DOT reporting on performance targets because of the statutory deadlines in MAP–21. The FHWA also recognizes that NHS limits could change during a performance period. Therefore, FHWA revised section 490.105(d)(3) in this final rule so that State DOTs are no longer required to declare and describe NHS limits in their Baseline Performance Period Report. As a result, the changes in NHS limits during a performance period would be accounted for. As discussed in section 490.105(d)(3), the National Highway 46 Improving FHWA’s Ability to Assess Highway Infrastructure Health Pilot Study Report FHWA– HIF–12–049 2012. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 System Data Item in HPMS and the Highway System of the Inventory Route Data Item in NBI are required to be reported to FHWA annually together with the condition metric data. The NHS limits for pavement condition measures will come from the same data set submitted to HPMS in the same year as the performance condition metric data is submitted, and NHS designation for bridge condition measures will come from the same NBI data set as the performance condition metric data of the same year. (See more details on implementation timeline discussion in sections 490.105(e)(1) and 490.105(f)(1) and discussion on NHS limits in the discussion for section 490.105(d)(3).) Discussion of Section 490.309 Data Requirements The FHWA proposed four condition metrics to be collected and reported to the HPMS to calculate the pavement measures. These metrics included IRI, rutting, faulting, and Cracking Percent. Comments on the inclusion of these four metrics were primarily focused on the consideration of IRI as a required metric. The AASHTO and eight State DOTs 47 commented that, of the four proposed metrics, IRI is the only one ready to be measured consistently in all States and therefore should be the only measure of pavement condition. Alternatively, they suggested that the additional three metrics be phased in over time. In contrast, the ACPA, Cemex USA, Connecticut DOT, Georgia DOT, Illinois DOT, Louisiana DOT, Ohio DOT, and PCA supported the use of the four metrics. Some commenters 48 suggested that the four metrics not be equally weighted in the calculation of the pavement measures. The FHWA considered these differing opinions and elected to retain the requirement for the collection and reporting of the four metrics. The FHWA has found through documented research 49 that nearly all State DOTs currently use more than IRI in their pavement management programs. Publications by recognized pavement experts indicate that pavement conditions cannot be determined using only IRI alone 50 51 52 53. However, FHWA 47 Alaska DOT&PF, Connecticut DOT, Idaho DOT, Montana DOT, North Dakota DOT, South Dakota DOT, Washington State DOT, and Wyoming DOT, Michigan Asset Management Council, Michigan State Transportation Commission. 48 Oregon DOT, Association of Metropolitan Planning Organizations, and Illinois DOT. 49 NCHRP Study 401 ‘‘Quality Management of Pavement Condition Data Collection 2009.’’ 50 ‘‘Pavement Management Practices in State Highway Agencies’’: Newington, Connecticut Peer Exchange Results. 2011: http://www.fhwa.dot.gov/ asset/pubs/hif11036/hif11036.pdf. PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 recognizes and appreciates that the methods to collect and report the rutting, faulting, and Cracking Percent metrics may be new to some State DOTs. The Alabama DOT suggested that FHWA replace IRI with Mean Roughness Index (MRI) in order to avoid confusion. The FHWA agrees with Alabama that MRI is the correct measurement and the HPMS Field Manual has been revised to clarify this distinction. The term IRI is still used because it is familiar to most users even though the actual collection and reporting is the MRI value. The FHWA recognizes that the level of pavement data collection for the four metrics is more intensive than the HPMS requirements in previous years and will require time for State DOTs to adjust contracts and equipment to comply. The final rule delays the requirements for pavement data collection until January 1, 2018, for Interstate highways and until January 1, 2020, for non-Interstate NHS routes. Further, FHWA has delayed the implementation of data collection, reporting, and target establishment requirements so that the first performance period begins in 2018. The phased approach pushes the determination of baseline pavement conditions for the first performance period from 2018 to 2020 (the mid-point of this period). This phased approach to target establishment for the pavement measures is presented in the discussion for section 490.105(e)(7). The FHWA believes that these actions will advance the state of practice to more consistently collect and report rutting, faulting, and cracking while allowing for a phased approach to full implementation. Several commenters,54 primarily representing local governments and 51 ‘‘Pavement Asset Management’’, Uhlmeyer, J., Luhr, D., and Rydholm, T., Washington State Department of Transportation. 2016: https:// www.wsdot.wa.gov/NR/rdonlyres/E93CF754-04524FDE-92BA-02A7BC4CB98A/0/WSDOTPavement AssetManagement2816.pdf. 52 ‘‘Performance Measures for Pavement Assets under Performance Based Contracts’’, Alyami, Z., Tighe, S., Gransberg, D., 9th International Conference on Managing Pavement Assets, 2014: https://vtechworks.lib.vt.edu/bitstream/handle/ 10919/56400/ICMPA9-000173.PDF?sequence=2& isAllowed=y. 53 ‘‘Performance Measures: Pavement Condition 2015’’, Kansas DOT 2015: https:// kdotapp.ksdot.org/perfmeasures/documents/ pavement_fact_sheet.pdf. 54 City of Fremont, CA, City of Santa Rosa, CA, City of Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of Marin, CA, Metropolitan Transportation Commission, Oversight Committee for the California Local Streets and Roads Needs Assessment, Puget Sound Regional Council, Rural counties Task Force, California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, County of Los Angeles, Oregon DOT, South Dakota DOT, E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 planning organizations, objected to the use of IRI as a metric in the calculation of the pavement measure. The ACHD, for example, commented that collecting data on low speed roads is difficult and generally results in poor quality data. As such Ada County suggested dropping IRI as a measure for local roads. Similarly, the city of Santa Rosa commented that while the California DOT is collecting IRI data on California’s NHS, it will likely be the responsibility of local agencies to collect IRI data in the future. This change could disrupt established process for PCI collection and will result in increased cost and duplicative data collection efforts. The Alaska DOT&PF commented that asphalt cracking has no standard method of collection, remarking that two methods, windshield and laser, are not comparable. Finally, CEMEX USA and the Portland Cement Association suggested adding Remaining Service Interval as a condition metric. The majority of the commenters represent cities and counties that utilize the Pavement Condition Index (PCI) as their primary method to assess pavement conditions. The commenters noted that the PCI method does not include IRI nor an assessment of ride quality. Several commenters, primarily local agencies in California, commented that applying IRI to local roads could lead to ‘‘worst-first’’ strategies. Additionally, the ACHD commented that using IRI on local roads may mean that cost-effective pavement preservation techniques (e.g., chip seals) will no longer be useful as they can negatively impact IRI. The commenters expressed a number of concerns related to the cost and burden of collecting IRI using a high speed profiler testing device; and the lack of correlation between PCI and IRI. In addition, many of these commenters suggested that local agencies be allowed to use their own methods to classify pavements as being in Good, Fair, or Poor condition. The ACHD suggested that straight-edge based methods could replace IRI or manual methods on local roads. This alternative method would remain accurate and would be much more practical. Furthersmore, as discussed later in this section, a number of commenters raised concerns with the Seattle DOT, Orange County Transportation Authority, City of Portland, OR, City of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of Tiburon, CA, City of Spokane, WA, California Association of Counties, South Jersey Transportation Planning Organization, Portland Cement Association, American concrete Pavement Association, Northwest Pavement Management Association, Fugro Roadware, NCE, Brian Domsic, John Harvey, An anonymous commenter, Stephen Mueller Consultancy, League of California Cities, and LA DOT. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 accuracy of collecting IRI in urban environments. Discussions with manufacturers of IRI data collection equipment and the comments from the Road Profiler Users Group confirmed that this is particularly difficult where posted speed limits are less than 40 mph, usually in urban settings. In the final rule, an alternative method known as PSR is permitted to determine the overall condition of pavement sections only on roadways where posted speed limits are less than 40 mph. In section 490.309(b) of the NPRM, FHWA proposed the data collection requirements for Interstate and nonInterstate NHS pavements necessary to calculate the four pavement condition metrics. A wide range of comments was received on these proposed data collection requirements. This section includes a discussion on the response to the comments and the changes resulted in the final. This discussion is organized into the following categories of issues raised by commenters: • Reference to AASHTO protocols • Collecting data in both directions on Interstate pavements • Collecting data at an annual frequency for Interstate pavements • Collecting IRI data on lower speed roadways • Processing data at 0.10 mile intervals • Requiring full extent data collection on the full NHS for all four metrics • Using structure type to identify and exclude bridges • Travel lane required for data collection • Devices for rutting collection Reference to AASHTO Protocols Because the data requirements to calculate pavement performance vary somewhat from current data collection practices, the NPRM specified defined collection protocols for each of the required data elements. The majority of the methods and standards for data collection are outlined in the HPMS Field Manual and reference some of the aspects of certain AASHTO Standards. These documents are incorporated by reference in section 490.111. Several adopted and provisional AASHTO Standards were specified in the NPRM with the intention of providing guidance and background for measuring data needed to determine performance. The AASHTO and others 55 submitted comments about the proposed methods for data collection, suggesting that these 55 Colorado DOT, Connecticut DOT, Florida DOT, Georgia DOT, Idaho DOT, Illinois DOT, Minnesota DOT, Montana DOT, North Dakota DOT, Oregon DOT, Rhode Island DOT, South Dakota DOT, Wyoming DOT, Mid-America Regional Council, and Southeastern Pavement Preservation Partnership. PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 5927 standards were never intended for regulatory purposes. The comments noted distinctions between AASHTO Standards and those in the HPMS Field Manual for cracking measurement. The commenters also noted that AASHTO Provisional Standards PP68–14, PP69– 10, and PP70–10 were never intended as permanent standards, are subject to change, and inappropriate for use in rulemaking. The FHWA recognizes that AASHTO Standards were not specifically designed for collecting data that is used for pavement performance evaluations. However, the 10 AASHTO Standards incorporated by reference in section 490.111 contain well-known protocols for data collection, equipment requirements, and data compilation that are useful in determining pavement performance. It is preferable that State DOTs use the appropriate parts of these standards to guide quality data collection even when additional calculations are needed to meet the requirements for the HPMS Field Manual. For example, AASHTO Standard PP68–14 contains excellent methods to collect cracking images in asphalt pavements. Additional calculations can easily be done to make this value meet the HPMS requirement for area of pavement cracked. Guidance on how to make these calculations is included in the HPMS Field Manual. The FHWA agrees with AASHTO that including the provisional standards PP67–14, PP68–14, PP69–14, and PP70– 14 as requirements in the rule is inappropriate. The FHWA directs State DOTs to refer to the HPMS Field Manual for data collection methods for automated data collection of pavement cracking and rutting. However, FHWA recognizes the extensive efforts by State DOTs involved in developing these provisional standards. The HPMS Field Manual may continue to reference them as preferred methods for data collection with specific guidance for making calculations from that data to report pavement conditions to HPMS. Collecting Data in Both Directions on Interstate Pavements The FHWA proposed in section 490.309(b) for State DOTs to collect data in both directions of travel for the full Interstate for all four condition metrics to accurately capture the directional differences associated with pavement type, age, traffic loading, and roadway geometry. Three State DOTs and one planning organization 56 expressed 56 Georgia DOT, Missouri DOT, Oregon DOT, Atlanta Regional Commission. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5928 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations concerns with the burden associated with collecting data in both directions. The Maryland State Highway Administration and Missouri DOT suggested a revision to the final rule to limit the requirement for collection in both directions to only those cases where the highway is divided with either a median or a physical barrier. Conversely, two State DOTs 57 commented that they collect data on their Interstate in both directions, and in some cases, in all lanes. In addition, it was noted by the Oregon DOT that data for the required inventory metrics (Through Lanes, Surface Type, and number of lanes) are collected and reported in one direction only, which may not represent information in the non-inventory direction correctly. In the NPRM, an HPMS review indicated that 52 percent of State DOTs do not report data in both directions on the Interstate. The comments received on this requirement support that finding. Contrary to the comments opposing data collection on both directions of Interstate System, the joint letter from the Maine, New Hampshire, and Vermont DOTs supported the pavement condition data requirements on ‘‘both barrels of dual-carriageways.’’ The letter stated that the New Hampshire DOT has been measuring pavement condition and other measurements on each carriageway for all of their Interstate System for ‘‘several years and it has taken significant effort to combine the data for FHWA purposes.’’ They noted that requiring data for ‘‘both barrels’’ of divided Interstate System would relieve them from additional post-processing and create a more comprehensive picture of the statewide pavement condition in their State. They also recommended FHWA to consider the dual-carriage data format to support FMIS, which intends to use HPMS data as its source. In a recent study for FHWA,58 pavement conditions were measured in both directions on a significant number of miles of Interstate highways. The findings indicated that the difference in pavement conditions between the two directions was insignificant. This supports the claims made in the comments indicating that data collection in both directions on Interstate highways is not warranted. However, FHWA also recognizes that agencies, like New Hampshire DOT, collect their data in a dual-carriageway data format for a more comprehensive 57 Tennessee DOT, New Hampshire DOT. 58 Evaluation of Pavement Conditions on the Interstate System: Preliminary Summary, Rada 2015. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 assessment of the statewide pavement condition and for better integrating with FMIS. Therefore, section 490.309(b)(1) in the final rule was amended to require pavement data reporting for ‘‘at least one direction’’ for the Interstate System, and section 490.309(b)(1)(iii) in the final rule provides State DOTs the option to collect and report pavement condition data separately for each direction of divided highways (carriageway) on the Interstate System. Please note if a State DOT chooses to exercise the option of reporting Interstate pavement data in dual-carriage data format, then that State DOT must report the data for the entire Interstate System within the State (i.e., no partial network dual-carriage option allowed). As stated previously, FHWA provides this option for State DOTs for a more comprehensive assessment of their statewide pavement condition and for better integrating with FMIS. The FHWA expects State DOTs to not convert data format only to meet the minimum Interstate pavement condition level and/or to make significant progress. Considering a substantial amount of effort required to covert data format (i.e., single/inventory direction to dual carriage or vice versa) in accordance with HPMS Field Manual, FHWA does not believe State DOTs will convert the data format just to meet the minimum Interstate pavement condition level and/or to make significant progress. Therefore, FHWA does not specify an allowable frequency of changes in data format in the final rule so that State DOTs have the flexibility of converting their Interstate data format at any time. The FHWA recommends that State DOTs should carefully examine the effects of data format conversion on condition/performance trends and on the ability to meet the minimum Interstate pavement condition level and significant progress toward achieving targets. Also, it is important to note that if a State DOT decides to report Interstate System data in a dualcarriageway data format, then the Interstate pavement metrics in section 490.311 will be determined separately for each direction (i.e., inventory and non-inventory directions) and the Interstate pavement measures in section 490.313 will be computed using the data from both directions of the Interstate highways. Please refer to the HPMS Field Manual in the docket for data requirements associated with dualcarriageway data format for Interstate System. Collecting Data on an Annual Frequency for Interstate Pavements The FHWA proposed to maintain the current HPMS requirement to collect PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 data annually for the IRI metric and an increased frequency of annual (from biennial collection) collection for the Cracking Percent, rutting, and faulting metrics for the Interstate System. A total of 23 comments 59 addressed the proposed annual data collection requirements. The majority of these commenters expressed concern with the costs and burden associated with annual data collection and questioned the need to capture annual changes in pavement condition. The Oregon DOT noted that an evaluation of their annual collection efforts after 7 years of testing concluded that ‘‘it was not necessary or cost effective to collect data annually,’’ citing that the overall condition does not change dramatically from year to year. The Michigan State Transportation Commission and Michigan Asset Management Council opposed the annual data collection requirement and recommended that FHWA work in cooperation with States to determine the most appropriate frequency and level of detail for data collection. In general, the commenters did not feel it was necessary to capture annual changes in condition. The Rhode Island, Pennsylvania, and Minnesota DOTs commented that they collect data on their Interstate System on an annual basis. The Rhode Island DOT commented that their data coverage and frequency were the result of a recommendation by the National Center for Pavement Preservation to account for the rapid deterioration that pavements in Rhode Island can exhibit from year to year due to the weather conditions. Fugro Roadware supported the proposed data coverage and data collection frequency. Fugro Roadware emphasized the importance of identifying many of the potential problems early and clearly so that State DOTs and other agencies can ensure that they are optimizing the work performed on the network to limit deterioration and potential need for more advanced and expensive treatments. The FHWA believes that the minimum Interstate pavement condition requirements in 23 U.S.C. 119(f) require annual assessments of condition. The FHWA recognizes that, for a specific pavement, conditions may not change 59 AASHTO, California DOT, Connecticut DOT, Delaware DOT, Hawaii DOT, Idaho DOT, Iowa DOT, Maryland DOT, Michigan DOT, Minnesota DOT, Montana DOT, North Carolina DOT, North Dakota DOT, Oregon DOT, Pennsylvania DOT, Rhode Island DOT, South Dakota DOT, Northeast Pavement Preservation Partnership, Southeastern Pavement, Preservation Partnership, NYSAMPO, SJTPO, Michigan State Transportation Commission (STC) and Michigan’s Transportation Asset Management Council (TAMC). E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations dramatically each year. However, FHWA believes that changes in conditions of the full-extent Interstate System within a State will be evident from year to year due to construction activities, weather events, and variability in the durability of the highway pavements. State DOTs have been reporting IRI for the Interstate highways to HPMS on an annual basis since 1989. A review of the HPMS data from 2007 to 2011 showed that 29 State DOTs reported at least a 1 percent change in the IRI for their Interstate pavements in Good condition. During the same period, 10 State DOTs reported at least a 10 percent change in annual Good pavement condition levels. Although the new pavement measure includes multiple condition metrics, FHWA believes this account of historical changes in IRI condition suggest that similar changes should be expected for the new pavement measure. Furthermore, FHWA believes that the 0.1 percent reporting accuracy required of the new pavement measure necessitates at least an annual frequency of testing in order to accurately determine State DOT compliance with the minimum condition requirements in 23 U.S.C. 119(f). As discussed in the Executive Summary, the FAST Act removed the phrase ‘‘two consecutive reports’’ in 23 U.S.C. 119(f)(1)(A), which relates to triggering the penalty for when the Interstate pavement condition has fallen below the minimum condition level established under this rule. Under the FAST Act the penalty will be based on each FHWA minimum condition level determination instead of two consecutive minimum condition level determinations. The FHWA believes that the changes due to FAST Act further support the importance of the annual data collection for implementing the statutory requirements under 23 U.S.C. 119(f)(1). For these reasons, FHWA retains the requirement of annual data collection for all four condition metrics for the Interstate pavements in the final rule. mstockstill on DSK3G9T082PROD with RULES5 Collecting IRI Data on Lower Speed Highways The FHWA proposed that IRI data be collected on all NHS roadways. As previously discussed, a number of commenters 60 noted the challenges with collecting IRI data on roadways in urban settings and lower speed roadways. Although IRI is a well-known 60 Ada County Highway District (ACHD), John Harvey, CEMEX USA, City of Vacaville, CA, Portland Cement Association, Metropolitan Transportation Commission, Oregon DOT. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 measure for pavement performance, it is less detectable to highway users at low speeds and less useful as a measure of pavement performance. To specifically address this issue, FHWA added an alternative method known as PSR 61 that may be used to determine overall pavement condition for Interstate and non-Interstate NHS sections where the posted speed limit is less than 40 mph (sections 490.309(b)(1)(iv) and 490.309(b)(2)(iii)). The intent of this change is to allow continued use of a method that has been a part of HPMS for many years to provide pavement condition information for locations where IRI data collection is not practical. In addition, section 490.309(b)(2)(iii) provides that State DOTs may use conversions to PSR from other pavement condition assessment methods, such as the U.S. Army Corps of Engineers PCI,62 if they demonstrate to FHWA that the conversion produces pavement conditions equivalent to the PSR method.63 (See discussion section for section 490.313(b) for the thresholds to define Good, Fair, and Poor condition levels based on PSR.) Processing Data at 0.10 Mile Intervals The FHWA proposed in sections 490.309(b) and 490.311(c) that data be collected and reported at 0.10 mile intervals for the four pavement metrics for the full NHS to provide better uniformity and increased accuracy in condition assessment. The majority of commenters, including 18 State DOTs,64 3 industry associations,65 2 planning organizations,66 ACHD and AASHTO opposed or expressed concerns with the proposed requirement. In general, the commenters noted that the uniform 0.1 mile reporting requirement did not align with their current State DOT pavement measuring and reporting practices. The commenters cited the costs to conform to this requirement and urged FHWA to consider an approach that would provide greater flexibility to State DOTs to allow for varying reporting lengths. 61 Carey and Irick, Highway Research Bulletin (1960). 62 ASTM Standard D6433. 63 An example in publication: Al-Omari and Darter, ULUI–ENG–92–2013 (1992). 64 Georgia DOT, New York State DOT, North Carolina DOT, North Dakota DOT, Pennsylvania DOT, South Dakota DOT, Wyoming DOT, Idaho DOT, Minnesota DOT, Mississippi DOT, South Carolina DOT, Texas DOT, Colorado DOT, Illinois DOT, Iowa DOT, Alabama DOT, Connecticut DOT, and Montana DOT. 65 Road Profiler User’s Group, NCE, Agile Asset Inc., and Northeast Pavement Partnership. 66 Texas Association of Metropolitan Planning Organizations and Association of Metropolitan Planning Organizations, Michigan State Transportation Commission, Michigan Asset Management Council. PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 5929 The reporting of the inventory data elements in section 490.311(c) of the NPRM generated some questions. Fugro Roadware recommended that sections shorter than 0.1 mile be considered for other significant changes in the pavement inventory, such as change in pavement surface type and change in route identification (i.e., where reference posts reset at county lines and overlapping highways start and end). The Georgia DOT urged FHWA to define the method for calculating cracking, rutting, and faulting, including differentiation of surface types. The Kentucky Transportation Cabinet requested clarification on how sections should be broken down when there are discontinuities in the route or surface type within a section. Considering these comments, FHWA revised sections 490.309(a) and 490.311(c)(2) to clarify that State DOTs are required to report all relevant 67 condition metrics for each pavement section. This means that each pavement section and all relevant condition metrics must be spatially coincident (i.e., identical Route_ID, Begin_Point, and End_Point values in HPMS). Recognizing that inventory data items do not perfectly align (or are not spatially coincident) with the pavement sections, FHWA revised section 490.311(c) and added section 490.311(d) in the final rule to clarify that State DOTs are required to report the three inventory data items (Through Lanes, Surface Type, and Structure Type) using the protocols in the HPMS Field Manual. In contrast to the section lengths for the measured pavement metrics, the section length for each of the inventory data items is not restricted to the 0.1 mile length. Instead, it reflects logical start and end points. These inventory data items will be tied to measured pavement conditions reported in the metrics using each State DOT’s linear referencing system, as described in chapter 4 of the HPMS Field Manual. Nine State DOTs 68 the Northeast Ohio Areawide Coordinating Agency and the Southeast Pavement Preservation Partnership provided comments expressing support for 0.1-mile intervals and noted that they collect and report data at 0.10 mile intervals and did not 67 For asphalt pavement sections (Surface_Type is 2,6,7, or 8), relevant condition metrics are IRI, rutting, and Cracking_Percent; for jointed concrete pavement sections (Surface_Type is 3,4,9, or 10), relevant condition metrics are IRI, faulting, and Cracking_Percent; and for Continuously Reinforced Concrete Pavements (CRCP) sections (Surface_Type is 5), relevant condition metrics are IRI and Cracking_Percent. 68 Hawaii DOT, Kentucky DOT, Maryland DOT, Oklahoma DOT, Oregon DOT, Missouri DOT, New Jersey DOT, Tennessee DOT and Washington State DOT. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5930 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations see an undue burden with this proposed requirement. However, many of these State DOTs asked for more clarification on how they should address breaks in the system that would prevent collection at 0.10 mile lengths. The NPRM contained substantial discussion about the importance of the 0.10 mile length data collection and reporting lengths in providing uniformity and increased accuracy in pavement condition assessment. The RIA prepared for the NPRM considered the increased costs of data collection and processing to comply with the requirements. Some State DOTs currently collect and report pavement condition at 0.10 mile intervals to the HPMS. An evaluation of the network level condition outcomes in these State DOTs using 0.20 mile section lengths indicated a minor difference in the percentage of Good condition pavements but a considerable difference in percentage of Poor condition pavements compared to the 0.10 mile length. In the final rule, the 0.10 mile uniform pavement section data collection and reporting is retained because it is needed for a consistency in national performance reporting. Current data collection and processing technologies can easily accommodate it, and it is already an accepted practice in several State DOTs. Furthermore, this requirement does not impose restrictions on State DOT management programs. State DOTs can and should operate pavement management programs as they see fit. Related to the section lengths, the commenters asked for more clarification on how State DOTs should address breaks in the system where collection at 0.10 mile lengths is not practical. These breaks occur due to uneven lengths in highway routes, interruptions to measurements by intersections, change in surface type, bridges, and similar locations where uniform 0.1 mile lengths are not possible. In the NPRM, allowance was made to report conditions for smaller pavement sections if needed, but that none should exceed 0.1 mile in length. It was noted in the comments and confirmed by examination of existing HPMS data that field measurements do not always align exactly with official State route maps. These deviations relate to the accuracy of global positioning devices and other field conditions that can result in sections slightly exceeding 0.1 mile lengths but always within a tolerance of approximately 50 feet. In the final rule, the intent is that State DOTs will report in 0.1 mile sections wherever possible, but are provided an allowance for VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 lengths up to 0.11 mile (580.8 feet) to accommodate the alignment issue. Therefore, FHWA revised sections 490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 490.309(b)(2)(ii)(C) and added sections 490.309(b)(1)(iv)(C) and 490.309(b)(2)(iii)(C). These changes were made so that shorter than 0.10 mile pavement sections are permitted at the beginning of a route, end of a route, bridges, locations where surface type changes, or other locations where a section length of 0.10 mile is not achievable and specified that the maximum length of sections shall not exceed 0.11 mile (580.8 feet). Please note that as discussed in sections 490.309(a) and 490.311(c)(2), State DOTs are required to report spatially coincident (i.e., identical Route_ID, Begin_Point and End_Point values in HPMS) sections for all relevant 69 condition metrics to HPMS. As stated above, the sections of condition metrics (i.e., IRI, rutting, faulting, Cracking_Percent, and PSR) are 0.10-mile long sections (shorter than 0.10 mile sections are permitted at the situation specified above) and not exceeding 0.11 mile, and all relevant condition metrics must be spatially coincident for each section. On the other hand, as discussed above, the section lengths of inventory data items (Through Lanes, Surface Type, and Structure Type) shall be in accordance with the protocols in the HPMS Field Manual so those data items do not necessarily spatially align with the condition metrics sections. However, in order to calculate measures (described in section 490.313) and to determine missing, invalid, or unresolved data (described in 490.313(b)(4)(i)), the data items (i.e., inventory data items, and other related data items) which do not spatially align with condition metrics are required. So, for the purpose of calculating measures and determining missing, invalid, or unresolved data, condition metric data will be dynamically segmented with all three inventory data items (Through Lanes, Surface Type, and Structure Type), functional class data item (Data Item F_ System in HPMS) and NHS data item (Data Item NHS in HPMS). To provide clarification on how sections should be broken down when there are discontinuities in the route in 69 For asphalt pavement sections (Surface_Type is 2,6,7, or 8), relevant condition metrics are IRI, rutting, and Cracking_Percent; for jointed concrete pavement sections (Surface_Type is 3,4,9, or 10), relevant condition metrics are IRI, faulting, and Cracking_Percent; and for Continuously Reinforced Concrete Pavements (CRCP) sections (Surface_Type is 5), relevant condition metrics are IRI and Cracking_Percent. PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 responding to the comment from Kentucky Transportation Cabinet, FHWA differentiates between condition metric sections and dynamically segmented condition metric sections by adding a definition for condition metric sections in section 490.305. The FHWA defines a ‘‘Pavement Section’’ as a nominally 0.1 mile-long reported segment that defines the limits of pavement condition metrics required by FHWA. The revised sections 490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 490.309(b)(2)(ii)(C) and added sections 490.309(b)(1)(iv)(C) and 490.309(b)(2)(iii)(C) used the term ‘‘pavement section.’’ Requiring Full Extent Data Collection on the Full NHS for the Four Condition Metrics The FHWA proposed that the data for all four condition metrics be collected on the full extent of the Interstate and non-Interstate NHS. This proposal introduced and increased the data collection burden for cracking, rutting, and faulting. Comments provided by AASHTO, ARC, the National Asphalt Pavement Association, and the State DOTs of Connecticut, Florida, Georgia, Kentucky, Minnesota, Mississippi, Missouri, and Oregon noted that the requirement for full extent data coverage is ‘‘unnecessary and excessive.’’ They also commented that the full extent data provides only marginally better insight into the system condition with significant financial consequences for State DOTs. Alabama DOT commented that sampling should be permitted on off-system routes, even if the end goal is to eliminate sampling on-system. The Mississippi DOT commented that the cost associated with the proposed requirement is not just in the data collection, but also includes review, analysis, maintenance, and reporting of the data. These requirements create additional burdens to the personnel resources of State DOTs. The Illinois DOT commented that automated crack mapping is still an emerging technology, and it is possible for there to be some inconsistencies in the way that States collect and report this data. They added that manual distress surveys of the entire NHS system are not a viable option. The AASHTO and State DOTs of Connecticut, Georgia, Idaho, Minnesota, Montana, North Dakota, South Dakota, and Wyoming recommended allowing State DOTs to report metric data on samples in lieu of full extent. The AASHTO and Connecticut and Minnesota DOTs argued that sampling is a more cost effective approach than measuring the full extent. The Oregon E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations DOT commented that the full extent requirement is somewhat ‘‘understandable’’ for the Interstate System because there is a minimum pavement condition standard applied nationwide with significant financial consequences. Therefore, full extent measurement ‘‘makes sense’’ to ensure the most accurate data. However, the Oregon DOT recommended a sampling approach for the non-Interstate NHS because the system is not subjected to financial consequences. The Oregon DOT also stated that a sampling approach could also help avoid the inherent data errors associated with full extent IRI data where the data collection vehicle must stop at traffic lights. The Rhode Island DOT commented that State DOTs typically manage and maintain each direction of the Interstate System as separate roadways, but only report one direction to the HPMS. The Pennsylvania DOT commented that they collect data in both directions on divided non-Interstate NHS roads and requested clarification from FHWA on if they will only need to report one direction in the future. In addition, the commenter requested clarification on the frequency with which they need to report the data, since it is collected every year. As discussed in the NPRM, reporting the full extent measurement for the whole NHS is important to determining pavement performance.70 The final rule retains the language in section 490.309(b)(1) that requires State DOTs to collect and report IRI, rutting (asphalt pavements), faulting (jointed concrete pavements), and Cracking Percent annually for the full extent of the mainline highway Interstate System and collect data biennially and report data annually for the full extent of the nonInterstate NHS. As discussed in sections 490.109(d)(1) through (d)(3), State DOTs are required to collect non-Interstate NHS data every two years but State DOTs are required to report data for the entire non-Interstate NHS network to HPMS every year, hence, replacing the reported data from previous data collection cycle with the most recent data collected in HPMS. In response to Pennsylvania DOT’s question on the non-Interstate NHS, FHWA retains the language, as proposed in the NPRM, that only one direction (i.e., inventory direction) data collection and reporting for non-Interstate NHS is required for the pavement metrics and inventory 70 FHWA (2012). Improving FHWA’s Ability to Assess Highway Infrastructure Health Pilot Study Report, FHWA–HIF–12–049. http:// www.fhwa.dot.gov/asset/pubs/hif12049/ hif12049.pdf. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 data (sections 490.309(b)(2)(i)(D), 490.309(b)(2)(ii)(D), 490.309(b)(2)(iii)(D) and 490.309(c)(1)(ii)). Please note that the non-Interstate NHS pavement measures in section 490.313 will be computed using only the data referenced to the inventory direction of the non-Interstate NHS highways in HPMS. If a State DOT chooses to collect pavement data for the non-Interstate NHS on an annual basis, that State DOT will still meet the requirements in section 490.309(b)(2). In this case, the actual 2-year condition/performance (midpoint of a performance period) will be derived from the collected pavement data for the entire non-Interstate NHS in the second year of a performance period, and the actual 4-year condition/ performance (end of a performance period) will be derived from the collected pavement data for the entire non-Interstate NHS in the fourth year of a performance period. In response to comments suggesting use of a sampling approach, a recent statistical study 71 found that, even under controlled conditions, the variability of pavement data was substantial. A sampling program would require sample sizes approaching full data collection to provide a reasonable level of confidence in the results. It is not practical to implement this kind of a sampling program. Using Structure Type To Identify and Exclude Bridges In section 490.313(f)(1) of the NPRM, FHWA proposed that bridges would be excluded prior to computing all pavement condition measures by removing the sections where the Structure Type field value is coded as ‘‘1’’ in the HPMS. This was done to meet the statutory requirement (23 U.S.C. 119(f)(1)(A)) that pavement analyses must be done ‘‘excluding bridges.’’ The AASHTO, Fugro Roadware, and the State DOTs of Alabama, Colorado, Connecticut, Georgia, New Jersey, Oregon, and Texas requested clarification on how the bridge limits would be removed from the 0.10 mile interval continuous pavement performance data, particularly where the bridge limits do not spatially coincide with the 0.10 mile pavement sections. Fugro Roadware recommended that areas with bridge structures simply be invalidated and identified as a bridge. The AASHTO and Connecticut and New York DOTs recommended flexibility for State DOTs to use 71 Evaluation of Pavement Conditions on the Interstate System: Preliminary Summary, Rada 2015. PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 5931 segments other than 0.10 mile at the bridges. Oregon DOT commented that they prefer not to include IRI data for the structures, but State DOTs have been required for several years to report IRI metric data for bridges under the current HPMS reporting requirements. Oregon DOT added that this redundant effort to provide pavement condition data on structures that is not being used by FHWA is inefficient. This creates concern because of the current environment where staff and money are scarce. The AASHTO and Illinois and Montana DOTs commented that there is a discrepancy between pavement data reporting requirements in the current HPMS and the proposed measure calculation process for handling pavement data on bridges. The Hawaii DOT commented that pavements on viaduct structures should be excluded from the pavement condition performance measures. The FHWA concurs since viaduct structures meet the definition for bridges and are excluded in the legislation. The New Hampshire DOT commented that the Federal definition of bridges requires structures to be greater than 20 feet long. However, in New Hampshire there are several shorter bridges that often impact roughness just as larger structures do because many of them contain expansion joints or cause transverse cracking through expansion. The FHWA has evaluated the comments regarding the methodology for excluding bridges for pavement condition measure calculation. The FHWA clarified several of the issues related to bridges on the NHS in the final rule. First, in response to the comment from New Hampshire DOT, the term ‘‘bridge’’ used throughout subparts C and D is consistent with the definition proposed in section 490.405 of the NPRM. The FHWA agrees with New Hampshire DOT that structures less than 20 feet long could impact the condition of pavement sections. As discussed in the NPRM, FHWA recognizes that State DOTs may have different definitions for bridge. However, FHWA believes that these discrepancies would cause problems in calculating pavement measure consistently at the national level by excluding additional structures. The FHWA believes that the use of an established definition would continue to provide consistent and standardized data to be analyzed for the evaluation of State DOT and national progress. Therefore, FHWA moved the definition for the term ‘‘bridge’’ in subpart D (section 490.405) to subpart A (section 490.101) to use it in a consistent manner E:\FR\FM\18JAR5.SGM 18JAR5 5932 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 throughout the rule. As discussed in section 490.405, FHWA did not receive any substantive comments on the definition. The FHWA made an editorial revision to the definition in section 490.101 by striking the phrase ‘‘this section’’ and replacing it with the phrase ‘‘this part’’ to ensure that the definition in subpart A applies to both subparts C and D in the final rule. The FHWA also clarifies that excluding bridges means that bridge limits will be determined by the coded values ‘‘Route_ID,’’ ‘‘Begin_Point,’’ and ‘‘End_Point’’ for the Structure Type Data Item in HPMS where the value is coded ‘‘1.’’ Those determined bridge limits will not be used for calculating pavement performance measures. The FHWA agrees with the comments and recommendations from AASHTO and Connecticut and New York DOTs to provide flexibility for State DOTs to use segments other than 0.10 mile at the bridges. Therefore, FHWA revised sections 490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 490.309(b)(2)(ii)(C), and 490.309(b)(ii)(C) and added sections 490.309(b)(1)(iv)(C) and 490.309(b)(2)(iii)(C) so that shorter than 0.10 mile pavement sections are permitted at bridges. The FHWA also provided flexibility for State DOTs in reporting pavement sections by either: (1) Reporting uniform section lengths of 0.10 mile regardless of presence of bridges (Figure 3); or (2) reporting shorter than 0.10 mile pavement VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 sections adjacent to bridges (Figure 4). The method of excluding the bridges for both options will be the same for both pavement section reporting options. The FHWA notes that if the first option is chosen, the reported IRI, rutting, faulting, and Cracking Percent metric values for a 0.10 mile pavement section will be influenced by the surface condition of the bridge deck. State DOTs should carefully examine the impact of bridge surface condition on the pavement condition measures when choosing the options on reporting pavement sections at (or adjacent to) bridges. The FHWA cautions State DOTs in changing the way they report pavement sections at (or adjacent to) bridges between the time of target establishment and the time of progress evaluation. Such changes may alter the measures reported, which could then impact how an established target relates to actual measured performance. This difference could impact a State DOT’s ability to make significant progress toward achieving targets. Therefore, FHWA recommends that reporting of pavement section pavement sections at (or adjacent to) bridges is consistent between the HPMS data reporting cycles so that evaluating progress toward achieving target is consistent. Finally, unlike the NHS limits and urbanized area boundary, FHWA did not propose that constant bridge limits would be used for excluding bridges PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 throughout performance period. The FHWA did not add language in the final rule specifying constant bridge limits to be used for excluding bridges throughout performance period. However, FHWA expects State DOTs to take necessary actions so that changes (both the number and the limits) in reported Structure Type Data Item in HPMS will be minimal between the data reporting cycles and have minimal impact on changes in pavement condition. In the discussion section for section 490.105(d)(3), ARC commented that changes to the NHS network are likely to be ‘‘infrequent and minimal’’ in impact when compared to the overall network extent. The FHWA expects the majority of changes in reported Structure Type Data Item in HPMS between data reporting cycles will be due to changes in NHS limits. For example, if a State DOT reports Structure Type Data Item in HPMS for only a small fraction of their bridges at the time of target establishment but reports for all bridges in subsequent years, the progress evaluation of targets for pavement condition measures will not be done in a consistent manner. The FHWA encourages State DOTs to take necessary actions to better integrate data between NBI and HPMS prior to establishing performance targets to minimize the impact of changes in HPMS between reporting cycles. E:\FR\FM\18JAR5.SGM 18JAR5 5933 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations IRI = 180 in/mi Cracking%= 5% Rutting= 0 in IRI = 160 in/mi Cracking%= 1% Rutting = 0 in IRI = 190 in/mi Cracking%= 10% Rutting = 0 in IRI = 185 in/mi Cracking%= 6% Rutting = 0 in I I I I I I I (a) Data Reported in full 0.1-mile Sections "'I .... <>. :2 (b) Limits of Bridges (Structure_Type Code= '1') I IRI= 180 in/mi Cracking %=5% Rutting =Din IRI=l80 in/mi Cracking %=5% Rutting= Din IRI = 160 ln/ml Cracking%= 1% Rutting = D In IRI= 190 ln/ml IRI = 1851n/ml Cracking%= 6% Rutting = D In Crackmc %= 10% Rutting =Din (c) Sections for Pavement Measure Calculation VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.017</GPH> mstockstill on DSK3G9T082PROD with RULES5 Figure 3- An example of 0.10 mile pavement section with data measured in full 0.10 mile sections Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 Travel Lane Required for Data Collection In the NPRM, FHWA proposed that data be collected for all four condition metrics in the rightmost travel lane, or one consistent lane if the rightmost travel lane is not accessible. The AMPO stated that a lane-mile requirement could become prohibitively expensive. This commenter suggested a compromise similar to the Interstate requirement where data is collected in each direction for highways divided by a physical median. Similarly, the commenter said data for frontage roads, which serve NHS facilities, should be collected as well and be reported separately. The AASHTO and the Connecticut and Wisconsin DOTs commented that the rightmost lane may not be the most effective for data collection. They agreed that a consistent lane should be used, but preferred that State DOTs make the decision on the lane for data collection. The commenters expressed concerns with using the rightmost lane in mountainous areas. They argued that these lanes are often dedicated to truck travel and not representative of the other lanes on the roadway. They also expressed concern VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 with the challenges of collecting data in urban settings where the rightmost lane is often more congested than other lanes. The Tennessee DOT commented that they currently test the rightmost lane and supported the proposed requirement. The FHWA considered these points and acknowledges that pavement conditions measured in dedicated truck lanes and congested lanes may not be representative of the overall condition of pavements in all lanes. The FHWA amended section 490.309(b) to allow other lanes to be used if the rightmost lane carries traffic that is not representative of the remainder of the lanes or is not readily accessible due to closure, excessive congestion, or other events impacting access. that AASHTO R48–10 is not a reliable solution and should be removed as an option for pavement condition reporting. A review of AASHTO Standards R48–10 and PP–70 suggests that differences in precision exist. While the automated transverse profiling devices are the preferred method for measuring rutting, FHWA realizes that the devices are not yet universally adopted by State DOTs and that a significant number of State DOTs use the 5-point devices in their pavement programs. The NPRM provided for use of either device. No changes are made in the final rule. Devices for Rutting Collection The Florida and Oregon DOTs commented that the proposed process for data collection allows for rutting measurements using either a device that determines rutting from 5 points across the lane, or a device that determines rutting from 1,000 points or more across the lane. They argued that there is a large difference between the two methods. Fugro Roadware commented The FHWA proposed the methodology to be used by State DOTs to calculate the IRI, cracking, rutting, and faulting metrics and the requirements to report these metrics and the three inventory data elements to the HPMS. The condition metrics are used, as defined in section 490.313, to classify pavements as being in Good, Fair, or Poor condition. These methods and metrics were derived primarily from PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 Discussion of Section 490.311 Calculation of Pavement Metrics E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.018</GPH> 5934 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations published standards 72 used in pavement design and adopted by a majority of State DOTs. A number of commenters suggested additional or alternative metrics to be collected and identified challenges with the use of IRI in some local jurisdictions. The FHWA included discussion on these comments and the changes to the final rule in the previous sections of this rulemaking. In the NPRM, FHWA proposed a requirement in section 490.311(b)(1) for State DOTs to determine the IRI metric for all NHS sections. As discussed in the previous section, a number of comments raised concerns with the collection of IRI in urban settings and on lower speed roadways. The FHWA used these comments to adjust the requirement of data collection to allow for an alternative method (PSR) to assess pavement condition on roadways where the posted speed limit is less than 40 mph. The PSR is to be determined using the method prescribed in the HPMS Field Manual, which is a visual overall assessment of pavement condition. The new provision also allows for State DOTs to utilize an alternative assessment method to estimate the PSR using a correlation that is approved by FHWA. In section 490.311(b)(2)(i), FHWA proposed the method to calculate the amount of cracking in each asphalt pavement section. Many commenters noted inconsistencies with the proposed regulations and the HPMS Field Manual, the types of cracks to be included in the metric, and the consideration of cracks that have been sealed. In addition, several commenters noted concerns with the use of provisional AASHTO Standards that have been removed, as discussed previously for section 409.309 (under ‘‘Reference to AASHTO Protocols’’). Fugro Roadware and the Ada County Highway District recommended the HPMS Field Manual metric of percent area of fatigue cracking for use on asphalt roads. The NCE commented that Cracking Percent may be overly simplistic for use in pavement management. The commenter states that Cracking Percent is a much simpler measure than PCI and adopting it in the rule as opposed to PCI ‘‘would be a step backwards.’’ The commenter also remarked that Cracking Percent is not widely used by either local agencies or States. In addition, the commenter expressed concerns with the proposed 72 Mechanistic-Empirical Pavement Design Guide, A Manual of Practice, August 2015, 2nd Edition. American Association of State Highway and Transportation Officials, Washington, DC. Table 7.1 VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 thresholds for pavement measures, stating that they are inappropriate for local roads. Some comments sought clarification on the location of cracks to be included in the metric or how the area of cracked pavement is to be calculated. The language in the HPMS Field Manual has been changed to more clearly state that the location of cracks to be included shall be limited to the wheel paths only. The Louisiana DOT suggested that a wheel path be defined as 3 feet wide to eliminate metric conversion errors. The HPMS Field Manual further clarifies the width and location of each wheel path is in English units. In addition, commenters asked for clarification on the types of cracks to be included in the metric. Suggestions were provided to consider the severity of the crack and to limit the metric to only fatigue related cracking. Stephen Mueller Consultancy suggested that the severity level of cracking (high, medium, or low) be added to the HPMS ‘‘Cracking Percent’’ reporting requirement to be used as one of the pavement condition rating thresholds in the regulation. In addition, the Maine Turnpike Authority commented that severity of cracking will be crucial for making a fair assessment of a road’s performance. The intent of the metric is to only include load associated cracking in the wheel path. The HPMS Field Manual has been revised to clearly state that only fatigue (interconnected cracks) will be included in the metric. The FHWA believes that, for the purpose of the pavement measure being established through this rulemaking, an overall assessment of cracking is adequate to monitor system-wide performance. Consequently, FHWA does not feel that the cracking metric needs to consider the severity of the crack or cracking that is not related to pavement fatigue. The FHWA believes that the majority of fatigue generated cracking is in the wheel paths for asphalt pavements and therefore should be considered in the metric. The HPMS Field Manual has been revised to provide a clarification and guidance in reporting fatigue cracks, regardless of severity, in the metric. Several commenters asked for clarification on the inclusion of sealed cracks in the cracking metric specifically related to asphalt pavements. The NEPPP noted that sealed cracks are often rated more severe using automated methods. The FP2 corporation commented that crack sealing is an effective pavement preservation technique and should not be considered equal to an unsealed crack. The Rhode Island DOT PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 5935 commented that sealed cracks should be considered in the metric. In response to these comments, it should be noted that while sealing pavement cracks is an accepted practice for preserving pavements in Good condition, sealing cracks caused by fatigue does not restore structural capacity or alter the need for investment. The cracking performance metric in the final rule is predicated on measurement of fatigue cracking located only in the wheel path, regardless of whether the cracks are sealed. Therefore, no change was made in this final rule. In section 490.311(b)(2)(ii), FHWA proposed methods to determine the rutting metric for asphalt pavements that permitted the use of either 5-point devices, scanning laser devices, or manual measurements. The Connecticut DOT asked for clarification on the accuracy of rutting measurement and Texas DOT suggested a minimum rut measurement spacing interval be required to determine the rutting average. The Michigan DOT suggested that if the precision level equaled the threshold for Good, then only pavements with zero rutting would be considered Good. The Texas DOT suggested an alternative metric that would represent the extent of rutting, in terms of the percentage of the section exhibiting rutting, to the proposed average value of rutting in a section. The Colorado, Florida, and North Carolina DOTs commented that the two devices identified in the NPRM for measuring rutting do not produce the same results. They recommended that only one device be permitted. The South Carolina DOT commented that it only has a 3point laser system, and asked that FHWA consider the inability of State DOTs to perform the work in-house as required by the new rulemaking. In consideration of these comments and inquiries made to the manufacturers of the measuring devices, the final rule clarified section 490.311(b)(2)(ii) and Item 50 of the HPMS Field Manual. The final rule requires the average rutting measurement to be computed to the nearest 0.01 inch, and that the measured rut values in each wheel path should be averaged first and then used as the basis for the final rutting metric calculation (average of the average wheel path ruts). The FHWA concurs with the comment by Texas DOT related to the minimum spacing for manual rut measurement at 12 inches and has included clarification in the HPMS Field Manual. However, FHWA does not concur with the suggestion to base the rutting measurement on the extent of rutting in a section instead of the averaged area of E:\FR\FM\18JAR5.SGM 18JAR5 5936 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 rutting. While there is merit to the suggested method, it conflicts with typical practices used in a majority of State DOTs and would require major reworking of planning and other performance models, such as the Highway Economics Requirements System, currently in use by FHWA. The final rule retains the use of averaged area as the basis for the rutting metric. In section 490.311(b)(3), FHWA proposed the method to determine the cracking metric for CRCP. Commenters 73 requested a more clear description of how cracking, punchouts, and patching should be measured to determine the percentage of the area for the metric. The Alabama DOT commented that the values for Item 52 are rounded to the nearest 5 percent under the current HPMS Field Manual, meaning that a result of 7.5 percent cracked is rounded to 5 percent and values up to 12.5 percent are rounded to 10 percent cracked. Louisiana DOT made similar comments regarding rounding in the HPMS Field Manual. Item 52 in the HPMS Field Manual was revised to clarify how cracking and other distresses in CRCP are to be measured and reported to the HPMS. In section 490.311(b)(4)(i), FHWA proposed the method to determine the cracking metric for jointed concrete pavements. There were a number of comments 74 requesting clarification about the method of calculation, the types of cracks to be included, and the consideration of sealed cracks to the measure. Item 52 of the HPMS Field Manual (attached to the NPRM and posted to the docket) has been revised to clarify how the cracking metric for jointed concrete pavements is to be calculated and reported to the HPMS. There are no changes in the final rule language related to this issue. In section 490.311(b)(4), FHWA proposed the method to determine the faulting metric for jointed concrete pavements from measured pavement profiles, although there is no prohibition from using manual methods. A number of comments 75 focused on the method to determine faults from pavement profiles, the determination of average faulting, and the accuracy of reporting. The NPRM proposed the use 73 AMPO, Fugro Roadware, Virginia DOT, Illinois DOT, Louisiana DOTD, New Jersey DOT, Portland Cement Association. 74 Colorado DOT, Connecticut DOT, Louisiana DOT, Michigan DOT, Mississippi DOT, New Jersey DOT, New Mexico DOT, New York DOT, Oregon DOT, Rhode Island DOT, Tennessee DOT, Wisconsin DOT, FP2 Inc., NAPA, NCE, Portland Cement Association, Southeastern Pavement Preservation Partnership, and three private citizens. 75 Michigan DOT, Wisconsin DOT, Iowa DOT, Louisiana DOT, PCA, Roadway Profile Users Group. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 of AASHTO Standard R36–13 as the method to identify faults, allowing for both automated and manual detection of faults. Several commenters 76 expressed concerns with the potential for bias using the automated method. They remarked that the automated method would only average joints that exhibit measurable faulting. They noted that AASHTO Standard R36–13 allows for variability in the method of detecting the location of joints, which causes variation in the reported faulting values. In response to these concerns, FHWA has revised the section for Data Item 51 in the HPMS Field Manual to clarify how to calculate and report the average faulting to the HPMS. The Michigan DOT, Alabama DOT, and Louisiana DOTD pointed out a conflict in the threshold proposed to determine Good faulting condition and the accuracy of reporting for the faulting metric. The Louisiana DOT stated that the proposed metrics for faulting appear to be based on pre-2000 historical faulting data, which ignores the significant increase in Truck Traffic and is relatively limited in scope. As Michigan DOT pointed out, if the precision of the reporting of average faulting for a section is 0.05, the process of rounding would eliminate the possibility of a Good classification unless the pavement faulting was zero. For example, if in a section one half of the measurements were 0.02 inch and one half of the measurements were 0.04 inch, the average would be 0.03 inch, which would be rounded up to 0.05 inch. Since the threshold is also 0.05 inch, this section would be classified as Fair per the NPRM, even though all of the measurements were in the Good range. A recheck with the manufacturers of the measuring equipment indicated that the devices would not have a problem providing an average measurement to the 0.01 inch precision. This would eliminate the problem. The basis for the faulting thresholds is the ‘‘end of design life’’ from the AASHTO Mechanistic-Empirical Pavement Design Guide (MEPDG),77 not pre-2000 historical faulting data as suggested by Louisiana DOT. In the final rule, FHWA revised the reporting accuracy of faulting from 0.05 inches to 0.01 inches to address conflicts associated with rounding in the determination of condition levels. In section 490.311(c)(4) and (5), FHWA proposed due dates of April 15th 76 Michigan DOT, Wisconsin DOT, Iowa DOT, Louisiana DOT, Ohio DOT (Tim McDonald), PCA, Roadway Profile Users Group. 77 Mechanistic Empirical Design Guide, A Manual of Practice, Second Edition AASHTO 2015. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 and June 15th to report metrics to the HPMS for the Interstate and nonInterstate NHS, respectively. The AASHTO, Alaska DOT&PF, Illinois DOT, Mississippi DOT, New York DOT, Oregon DOT, Rhode Island DOT, and Texas DOT objected to these due dates. They expressed concern with managing two different submission dates and the challenges of meeting the April 15th deadline for Interstates. The commenters felt that the earlier due date was not necessary and that all of the data should be submitted no later than June 15th. The Wisconsin and the Kentucky DOTs commented that they could meet the proposed April 15th deadline. The Washington DOT agreed with reporting metrics for the entire Interstate System by April 15th. The FHWA included discussion in the NPRM to explain the reasoning for this proposed change. In summary, the accelerated due dates for Interstate pavements and NHS bridges is needed to administer the NHPP condition requirements prescribed in 23 U.S.C. 119(f). These provisions require FHWA to make a determination of compliance in a time frame that would allow for any resulting penalties to be applied by the next fiscal year. The April 15th deadline was proposed to provide sufficient time for the data to be reviewed and for any issues to be addressed before a determination is made. As discussed previously, the determination will be made based on HPMS data extracted on June 15th. State DOTs will have 2 months prior to June 15th to address any unresolved issues with the data submitted to HPMS. The final rule retains the due dates for HPMS submission as proposed. Discussion of Section 490.313 Calculation of Performance Management Measures The FHWA proposed the following: (1) The methods to calculate the condition levels for each of the four condition metrics; (2) the approach to address missing data; (3) a transition in the design of the pavement measure for non-Interstate NHS pavements; and (4) the method to calculate the section 490.307 pavement performance measures. The proposed approach utilized a method that considered the predominant condition level, represented by the four condition metrics, to determine the overall condition of each pavement section. The overall condition was proposed to be used to determine the percentage of the Interstate and non-Interstate NHS in Good and Poor conditions. In addition, the NPRM provided for a transition for non-Interstate NHS pavements that E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 utilized only the IRI metric for the first performance period in determining the pavement measure. Finally, the NPRM also proposed an approach to consider all sections with missing data to be in Poor condition. A number of comments were received on the use of the terms ‘‘Good,’’ ‘‘Fair,’’ and ‘‘Poor’’ and the condition metrics that were proposed to determine condition levels and the final pavement measures. The City of Seattle DOT suggested that FHWA define pavement condition in terms of 3 to 4 predominant assessment systems, arguing that it would provide additional flexibility. The FHWA considered these comments in the review of section 490.307. The discussion in section 490.307 of this preamble responds to comments and describes corresponding changes to the final rule. In section 490.313(b), FHWA proposed thresholds for each of the four condition metrics that would be used to determine Good, Fair, and Poor condition levels. Several comments, primarily from local government agencies,78 suggested that the thresholds be set differently for higher and lower volume roadways. The Louisiana DOT proposed that different performance metrics be identified for pavements that have higher traffic volumes. Maryland DOT generally agreed that the proposed criteria are appropriate, but suggested that alternative thresholds may be appropriate if friction is included as a metric, or if consideration is given to the causes of and repairs to structural cracking versus surface (functional) cracking. The Missouri DOT commented that one approach should be used for all roadways. The FHWA agrees with the comment from Missouri DOT and maintains that a standard definition of condition levels be used for all levels of roadway. The intent of MAP–21 is that State DOTs and MPOs establish targets that reflect different expectations for pavement conditions due to higher and lower traffic volumes and/or other reasons. For example, a State DOT may elect to establish the pavement performance condition target for high traffic volume roads to be significantly 78 City of Fremont, CA, City of Santa Rosa, CA, City of Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of Marin, CA, Metropolitan Transportation Commission, Oversight Committee for the California Local Streets and Roads Needs Assessment, Puget Sound Regional Council, Rural Counties Task Force, California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, County of Los Angeles, Oregon DOT, South Dakota DOT, Seattle DOT, Orange County Transportation Authority, City of Portland, OR, City of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of Tiburon, CA, City of Spokane, WA, California Association of Counties, League of California Cities, Ada County Highway District. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 smoother and less prone to disruption from maintenance activities than conditions on lower volume roads. The FP2 Corporation and State DOTs of Georgia, Rhode Island and Illinois expressed concerns regarding the weighting of pavement measures. They suggested that rather than weighting equally (except for rutting and faulting, which are combined), FHWA should consider weighting rutting and faulting differently. Fatigue cracking and rutting typically have a higher impact on the overall pavement condition rating and deterioration rate than does IRI or faulting. In addition, the State DOTs of Connecticut and Illinois argued that excluding bridges from the IRI calculation conflicts with the current HPMS Field Manual reporting practices. The State DOTs asked if the HPMS Field Manual will be updated. The FHWA appreciates the concerns from FP2 Corporation and the Georgia, Rhode Island and Illinois DOTs about the issues related to weighting of the pavement metrics. The FHWA recognizes that weighting is a typical practice for pavement management in many jurisdictions. However, the evaluation of pavement performance is more of a snapshot of existing conditions than a predictor of future conditions. Because of this, it is dependent more or less equally on each of the parameters described in the NPRM and maintained in the final rule. With reference to the bridges, it should be noted that the HPMS Field Manual made changes related to excluding bridges as required by 23 U.S.C. 119(f)(1)(A). Revisions to the HPMS Field Manual incorporated in the final rule retain these changes. In section 490.313(b)(1), FHWA proposed IRI thresholds of less than 95 for Good condition and more than 170 for Poor condition with an exception for urbanized areas over 1 million in population. The IRI equal to 95 threshold reflects the generally accepted point where a road surface is no longer considered smooth; an IRI equal to 170 is the point where a road surface is considered unacceptably rough. A threshold of 220 for Poor was proposed for urbanized areas over 1 million in population, citing that a greater tolerance for increased roughness, lower travel speeds, utilities and construction difficulties existing in these areas. Several commenters 79 objected to this 79 Alaska DOT&PF, AASHTO, CalTrans, Association of Municipal Planning Officials, Connecticut DOT, Idaho DOT, Illinois DOT, Iowa DOT, Louisiana DOT, Mississippi DOT, Missouri DOT, Montana DOT, New Jersey DOT, North Dakota DOT, Oklahoma DOT, South Dakota DOT, Tennessee DOT, Washington State DOT, Wyoming PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 5937 provision. They argued that population should not be part of the definition of pavement roughness and that if adopted, it should be extended to all urban areas. The AASHTO and Connecticut DOT also requested clarification on the definition of urban, suggesting that urban areas should include more than the 1 million population threshold proposed in the NPRM. The Orange County Transportation Authority, PSRC, Road Profilers Users Group, Tennessee DOT, and Washington DOT suggested that the threshold for IRI on pavements be based on speed, not population. New Jersey DOT argued that the Interstate IRI should never be greater than 170, regardless of whether or not it is urban. CEMEX USA suggested that a ‘‘Poor IRI threshold of greater than 170 in/mile’’ be used for both rural and urban Interstate applications. Similarly, the Northeast Areawide Coordinating Agency, the Metropolitan Transportation Commission, and the Portland Cement Association agreed that urbanized and non-urbanized areas should have the same thresholds. Florida DOT and Illinois DOT also noted that there is potential confusion over census boundaries, adjusted/ approved boundaries, and metropolitan planning areas. The FHWA agrees that a separate threshold should not be established for urban areas, primarily because of the point raised by Florida DOT on confusion about boundaries for urbanized areas with a population over 1 million. The exception provided for in the NPRM (section 490.313(b)(2)) has been removed from the final rule. The change requires that all pavements will be considered in Poor IRI condition when the IRI is greater than 170. In section 490.313(b)(2), FHWA proposed cracking thresholds of less than or equal to 5 percent for Good condition and greater than 10 percent for Poor condition. The New Mexico DOT commented that the definition of Cracking Percent is unclear, particularly for flexible pavements. In addition, the commenter stated the proposed threshold is too low. The Louisiana DOT commented that the thresholds for Cracking Percent be reviewed. The commenter stated that the usefulness of Cracking Percent is extremely limited. In addition, the commenter proposed that total length of cracks in a section be used as opposed to Cracking Percent. The AASHTO and Alabama DOT DOT, Puget Sound Regional Council, Road Profilers Users Group, North East Ohio Areawide Coordinating Agency, CEMEX, USA, Brian Domsic, Ohio DOT, Larry Scofield. E:\FR\FM\18JAR5.SGM 18JAR5 5938 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations commented that the proposed cracking thresholds for asphalt and jointed concrete pavements were more appropriate for Interstates and intended for project level assessments, citing references in the AASHTO MEPDG for different design thresholds. The FP2 Corporation proposed alternative cracking thresholds of less than 10 percent for Good condition and greater than 20 percent for Poor condition. In response to the comments, the threshold for Poor due to cracking is relaxed in section 490.313(b)(2) of the final rule (Table 1). This change aligns with the AASHTO MEPDG 80 for arterial highways and reflects actual practices States DOTs use for design and management of NHS highways. TABLE 1—CRACKING PERCENT PAVEMENT CONDITION RATING THRESHOLDS Metric range (percent) Surface type Metric Asphalt Pavement ............................................................. Cracking Percent .............................................................. Jointed Concrete Pavement ............................................. Cracking Percent .............................................................. CRCP ................................................................................ Cracking Percent .............................................................. <5 5–20 >20 <5 5–15 >15 <5 5–10 >10 Rating Good. Fair. Poor. Good. Fair. Poor. Good. Fair. Poor. mstockstill on DSK3G9T082PROD with RULES5 No comments were received on the proposed cracking condition thresholds for CRCP (section 490.313(b)(2)(iii). Therefore, they have been incorporated as proposed. In section 490.313(b)(3), FHWA proposed asphalt pavement rutting thresholds of less than 0.20 inch for Good condition and greater than 0.40 inch for Poor condition. Several commenters 81 objected to these standards. They argued that the thresholds were not reasonable in areas where tire studs and snow chains are used and that 0.75 inch was a more acceptable threshold. Connecticut DOT suggested that increments of 0.25 inches be used for the thresholds, as opposed to the proposed 0.10 inch increments. Cemex USA and PCA commented that the rutting threshold of 0.10 should be the threshold for Poor condition as this is the level where hydroplaning would begin to occur. The Ohio DOT commented that the proposed rutting threshold of 0.10 would minimize the risk of hydroplaning. For 0.10 mile segments that have relatively uniform rutting, the threshold is appropriate, however, the threshold is inappropriate for 0.10 mile intervals that contain high stress areas. The FHWA acknowledges the issues related to the use of tire studs and snow chains; however, as noted by Cemex USA and PCA, the presence of rutting has a potential safety impact to users of the system regardless of the stress in the pavement. Although hydroplaning is possible at rutting level as low as 0.10 inch, the documented practices for State DOTs 82 identify rutting above 0.20 inch as cause for concern and above 0.40 inch as needing immediate attention. Moreover, these levels are supported by the design thresholds in the MEPDG,83 which has been widely adopted by State DOTs. The final rule retains the proposed thresholds for asphalt pavement rutting. In section 490.313(b)(3)(ii), FHWA proposed faulting thresholds for jointed concrete pavement of less than 0.05 inch for Good condition and greater than 0.15 inch for Poor condition. There were a number of comments 84 about this proposal. Some commenters argued that the thresholds were too stringent, particularly to define Good conditions. Some noted that there appears to be a conflict in the proposed threshold of 0.05 inch for Good condition and in the 0.05 inch accuracy of reporting for faulting (discussed earlier in section 490.311(b)). Others suggested that the 0.05 inch threshold for Good faulting would be difficult to maintain using sound construction, preservation, and maintenance activities. The suggested thresholds for Good ranged from 0.05 inch to 0.25 inch. In the NPRM, FHWA proposed a minimum requirement for reporting faulting in the HPMS to a precision level of 0.05 inch, reflecting measuring capabilities from legacy equipment no longer in use. Current devices are accurate to 0.002 inches 85 for individual measures and routinely deliver average values to a precision level of 0.01 inch. The HPMS permits State DOTs to report values more precisely than 0.10 inch and several report values to 0.01 inch or even 0.001 inch precision levels. The FHWA revised section 490.313(b)(3)(ii) to provide a 0.01 inch precision level for reporting average faulting, reflecting the existing state of the practice. The FHWA also revised section 490.313(b)(3)(ii)(A) to set the threshold for Good at 0.10 inch, as discussed in the research.86 The FHWA retains the threshold for Poor at 0.15 inch since the same research indicates that a highway with an average of this faulting level would be considered unsatisfactory to all users and not easily repaired. In response to the concerns with collecting IRI data on lower speed roadways and the request from local governments to consider alternative condition assessment methods, FHWA 80 The Mechanistic-Empirical Pavement Design Guide: A Manual of Practice from AASHTO (2008). AASHTO distributed this document to State DOTs upon publication. The document is currently available for purchase on the AASHTO Web site. A copy has been placed on the docket and is available for viewing by the public. 81 AASHTO, Colorado DOT, Connecticut DOT, Rhode Island DOT, Oregon DOT and North Dakota DOT. 82 American Association of State Highway and Transportation Officials, ‘‘Report of the AASHTO Joint Task Force on Rutting,’’ Washington, DC, 1989. 83 Mechanistic-Empirical Pavement Design Guide, A Manual of Practice, August 2015, 2nd Edition. American Association of State Highway and Transportation Officials, Washington, DC. Table 7.1. 84 AASHTO, Idaho DOT, Connecticut DOT, Tennessee DOT, Mississippi DOT, North Dakota DOT, Oregon DOT, Rhode Island DOT, Virginia DOT, Louisiana DOTD, Portland Cement Association, Cemex USA, FP2 Corporation, Fugro Roadware, and Southeast Pavement Preservation Partnership. 85 This is also the standard sensor accuracy required in AASHTO Standard M328–10. 86 Improving FHWA’s Ability to Assess Highway Infrastructure Health FHWA–HIF–13–042. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations has established thresholds to define Good, Fair, and Poor condition levels based on PSR in section 490.313(c)(4). In developing these thresholds, FHWA utilized relationships developed by Michael Darter.87 Mr. Darter’s research suggests a rough correlation between estimated PSR values and measured IRI. In the final rule, the usage of PSR is restricted only to locations where posted speed limits are less than 40 mph on any NHS highway. The intent of this restriction is to provide an alternative method for areas with ‘‘stopand-go’’ traffic and where constant speeds needed for proper operation of the measuring devices are not attainable. The PSR is calculated based on a defined process 88 that uses pavement conditions that include cracking, rutting, and faulting. The overall performance condition rating for these sections is determined directly from the reported PSR values. The comments from the local agencies 89 indicated that some used methods other than PSR, such as PCI, to rate pavements. The final rule provides that equivalent methods to determine pavement condition can be used with prior approval from FHWA of the pavement data collection method and the technique to convert values to PSR. In section 490.313(b)(4), FHWA proposed that roadway sections with missing, unresolved, or invalid data would be considered in Poor condition for each respective condition metric. The FHWA received comments from 41 groups 90 objecting to the proposal. The majority of the commenters expressed concern that the proposed action would give a false impression of the condition of the network and would mislead the public. Commenters identified common reasons for missing data, including actual or planned construction, road closures, disasters, and similar kinds of events. Most suggested that in any given year it would be unrealistic for a State DOT to reach more than 95 percent of their network, even under the best of conditions. The commenters offered alternative approaches to the proposed method, including: (1) An allowance of 5939 the network to be missed for valid reasons; (2) using previous year reported metrics when data is missing; (3) base the measure only on the sections that were tested and (4) an allowance for construction projects that will improve pavement surface be automatically categorized as Good until a formal rating can be given. The Illinois and Washington DOTs did not specifically object to the proposal, but asked if segments under improvement would default to Poor. In response, FHWA revised section 490.313(b)(4)(i) to allow no more than 5 percent of the network lane miles, not including bridges, unpaved and ‘‘other’’surface types (such as cobblestone, planks, brick), to be represented with missing, unresolved, or invalid data due to the reasons noted in Table 2 below. The codes provided in Table 2 are to be documented in the HPMS submission whenever data is missing for any of the required relevant condition metrics or inventory data elements. TABLE 2—HPMS CODES FOR MISSING DATA Code 1 2 3 4 Description ........................ ........................ ........................ ........................ 5 ........................ Construction—Roadway was under construction. Closure—Roadway was closed to traffic. Disaster—Roadway was located in an area declared as a disaster zone. Deterioration—Roadway is too deteriorated to measure; is already designated as ‘‘Poor’’ and is in the STIP for Capital Improvement Program purposes. Other—Please describe in comments. mstockstill on DSK3G9T082PROD with RULES5 The FHWA will determine that a reported section in HPMS has a missing, invalid or unresolved data on June 15, 2019, and annually thereafter for Interstate System (section 490.317(b)) and on August 15, 2018 and biennially thereafter for non-Interstate NHS (sections 490.109(d)(2) and 490.109(d)(4)). Once State DOTs submit data to HPMS by April 15 for the Interstate System (sections 490.311(c)(4) and 490.311(d)(2)) and by June 15 for the non-Interstate NHS (sections 490.311(c)(5) and 490.311(d)(3)), FHWA will identify the data sections that do not meet the data requirements specified in sections 490.309 and 490.311(c) or do not provide sufficient data to determine its Overall Condition specified in sections 490.313(c) through (f) and FHWA will classify those data sections as ‘‘missing or invalid data.’’ The FHWA will then notify State DOTs the list of those data sections classified as missing or invalid data. Upon FHWA notification, State DOTs will have an opportunity to rectify by FHWA data extraction dates (June 15 for the Interstate System and August 15 for non-Interstate NHS) for determining minimum condition level for the Interstate System and significant progress determination for nonInterstate NHS. If a State DOT does not rectify FHWA identified missing or invalid data by FHWA data extraction dates, then those unrectified data will be classified as ‘‘unresolved data.’’ The FHWA will issue guidance on classifying ‘‘missing, invalid or unresolved data.’’ 87 ‘‘Relationships between IRI and PSR’’, AlOmari and Darter, ULIU–ENG–92–2013 (1992). 88 Carey, W.N. and Irick, P.E. ‘‘The Pavement Serviceability Concept’’ Bulletin 250, Highway Research Board, 1960. 89 City of Fremont, CA, City of Santa Rosa, CA, City of Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of Marin, CA, Metropolitan Transportation Commission, Oversight Committee for the California Local Streets and Roads Needs Assessment, Puget Sound Regional Council, Rural Counties Task Force, California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, County of Los Angeles, Oregon DOT, South Dakota DOT, Seattle DOT, Orange County Transportation Authority, City of Portland, OR, City of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of Tiburon, CA, City of Spokane, WA, California Association of Counties, California League of Cities, South Jersey Transportation Planning Organization, Portland Cement Association, American Concrete Pavement Association, Northwest Pavement Management Association, Fugro Roadware, NCE, Brian Domsic, John Harvey. 90 Alabama Department of Transportation, Alaska DOT&PF, California (Caltrans), Connecticut DOT, Delaware DOT, Georgia DOT, Idaho DOT, Iowa DOT, Kentucky TTC, Louisiana DOT, Maryland DOT, Michigan DOT, Minnesota DOT, Mississippi DOT, Missouri DOT, Montana DOT, New Jersey DOT, New York State DOT, North Carolina DOT, North Dakota DOT, Oregon DOT, Pennsylvania DOT, Rhode Island DOT, South Dakota DOT, Tennessee DOT, Texas DOT, Virginia DOT, Washington State DOT, Wyoming DOT, AASHTO, AMPO, National Association of Regional Councils (NARC), New York State Association of Metropolitan Planning Organizations, Northeast Pavement Preservation Partnership, Southeast Pavement Preservation Partnership, Texas Association of Metropolitan Planning Organizations, New York Metropolitan Transportation Council, Atlanta Regional Commission, Community Planning Association of Southwestern Idaho, Knoxville Regional TPO, Fugro Roadware. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 5940 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations The percentage will be determined by total lane-miles with missing, invalid, or unresolved for the network divided by the total lane-miles of the network (excluding the lane-miles of bridges, unpaved surface type, and ‘‘other’’ surface type). As shown above, the criteria for determining missing, invalid, or unresolved values did not include the data completeness of Structure Type data item. However, FHWA expects State DOTs to report comparable data contained their NBI data. Please see discussion sections for 490.313(f)(1) related to excluding bridges. The FHWA plans to check the reasonableness of total lane-miles of bridges reported in HPMS with the reported NBI data. The final rule prohibits reporting data collected during the previous data collection cycles because it does not accurately represent current pavement conditions required for reporting performance. Similarly, pavements under construction are not in ‘‘Good’’ condition and should not be reported as such. A review of recent submissions to the HPMS indicates that timely and complete data submissions have been problematic for some State DOTs, although 23 CFR 420.105(b) has required State DOTs to ‘‘provide data that supports FHWA’s responsibilities to the Congress and to the public’’ for many years. Failure to comply with this rule results in inadequate data to report performance, as required in section 490.107 for the NHS, and insufficient data to enforce the provisions of 23 U.S.C. 150(c)(3)(iii) for minimum conditions on the Interstate System. Because of the importance of the Interstate System to demonstrate progress toward the national goals in 23 U.S.C. 150(b), the final rule requires that State DOTs have at least 95 percent of the Interstate pavement data available, and demonstrate that no more than 5 percent of the pavements are in Poor condition to avoid imposition of the penalties under section 490.317. In addition, FHWA revised section 490.109(e)(4) so that FHWA will determine that a State DOT has not made significant progress toward the achievement of an NHPP target if a State DOT does not comply with the data completeness requirement under this section. (See discussion on section 490.109(e)(4) for more detail.) Finally, the equation to calculate the measure was revised. It is now based on the total lane-miles collected and reported, not the total lane-miles in the system. In sections 490.313(c) and (d) FHWA proposed that the method to determine the overall condition of the pavement be based on the conditions levels for each metric. The AMPO and the State DOTs of Colorado and Illinois commented that the condition metrics should not be considered equally in the determination of overall condition. The North Dakota DOT commented that faulting and IRI are both indicators of roughness and therefore only one should be considered in the condition of jointed concrete pavements. The FHWA notes that no data on pavement performance, as defined in the NPRM and in the final rule, exists at the present time. The MEPDG 91 suggests that the selected parameters are equally important in predicting future pavement conditions. The FHWA is committed to reevaluating the process through a future rulemaking once sufficient data has been collected. At this point there is no change in the proposed approach to determining the overall condition. The FHWA established sections 490.313(c)(4) and 490.313(d)(4) to require the overall condition to be equal to the PSR condition level for roadways with posted speed limits less than 40 mph where State DOTs have reported PSR in lieu of the IRI, cracking, rutting, and faulting metrics. If a State DOT elects to collect PSR for pavement sections meeting these requirements, the overall condition of the section will be determined directly from the PSR values, as described in Table 3. TABLE 3—OVERALL PAVEMENT CONDITION RATING THRESHOLDS USING PSR METRIC Metric Metric range All Pavements ......................................... mstockstill on DSK3G9T082PROD with RULES5 Surface type PSR ........................................................ ≥4.0 ........................................................ >2.0 and <4.0 ......................................... ≤2.0 ........................................................ Rating Good. Fair. Poor. The FHWA proposed a transition period in section 490.313(e) for implementing cracking, rutting, and faulting metrics for full extent nonInterstate NHS pavement measures to allow State DOTs time to implement the data requirements. During the proposed transition period, the overall condition rating for all pavement types on the non-Interstate NHS would be based on IRI rating only. The FHWA received one comment on the proposed transition approach. The Washington DOT disagreed with the proposed transition approach. The Washington DOT remarked that the sole reporting of full extent IRI may ‘‘exaggerate the Poor condition.’’ They provided an example in which IRI-based measure calculation yielded 17 percent Poor, but the measure calculation using all four metrics yielded 6.4 percent Poor for their for their non-Interstate NHS network. The Washington DOT recommended that the overall condition rating during the transition period should be based on HPMS sample sections for all four metrics. They argued that their approach ensures consistency in condition reporting across the entire first performance period. They also stated that MPOs would have no choice but to adopt the statewide targets (section 490.105(f)(3)) because the HPMS sample data would not be sufficient to represent their metropolitan planning area, and therefore they would not be able to establish their own unique targets. The FHWA appreciates the comment and the recommendation from Washington DOT. As stated in the NPRM, FHWA recognized that complete data for establishing baseline condition/ performance for the first performance period will not be available for many State DOTs. The IRI metric data is already required for all NHS routes and can be used by State DOTs and MPOs to estimate the baseline condition/ performance during the non-Interstate NHS pavement measure transition period. The FHWA understands Washington DOT’s concerns about the discrepancies between IRI and four metrics based measures. However, on a national basis, the pavement performance metrics using sampled sections of the NHS is substantially less 91 The Mechanistic-Empirical Pavement Design Guide: A Manual of Practice from AASHTO (2008). AASHTO distributed this document to State DOTs upon publication. The document is currently available for purchase on the AASHTO Web site. A copy has been placed on the docket and is available for viewing by the public. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations reliable and less representative of actual pavement conditions. For these reasons, FHWA retains section 490.313(e) in the final rule. (See discussion sections for sections 490.105(e)(7) and 490.109(e)(3) for more details on phase-in target establishment requirements and significant progress determination for the pavement condition measures.) The New Jersey Department of Transportation requested clarification about how to report pavement conditions adjacent to bridges and other obstacles in the roadway. Alaska DOT noted that a significant portion of the NHS in Alaska is not paved and requested clarification about reporting conditions and rating performance on those routes. Fugro Roadware recommended that sections with pavement surfaces that are not asphalt, PCCP, or CRCP be identified as alternative pavement types and should be excluded from the network length to determine the percent of Good, Fair, and Poor for Interstate and other NHS roadways. In response to these requests, Section 490.313(f) includes exemptions for the sections of highway where the Structure is identified as a bridge and exempts sections that where the Surface Type is identified as unpaved or a type where pavement conditions cannot be measured, such as cobblestone or brick. The exemption for bridges conforms to the legislative requirement that measurement of performance not include bridges. mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.315 Establishment of Minimum Level for Condition of Pavements on the Interstate System The MAP–21 requires the Secretary to establish minimum condition levels for pavements on the Interstate System to be maintained by State DOTs. The FHWA proposed the requirement that no more than 5 percent of Interstate pavements be classified as Poor. State DOTs are subject to a statutory penalty that would obligate a portion of NHPP funds and transfer a portion of STP funds to address Interstate pavement conditions if they fail to meet this minimum condition requirement for 2 consecutive years. Passage of the FAST Act in 2015 reduced the time from 2 consecutive years to 1 year. The AASHTO and a number of State DOTs 92 submitted comments suggesting the following: 92 New York State DOT, Connecticut DOT, Delaware DOT, Oregon DOT, Maine DOT, New Hampshire DOT, Vermont DOT, Ohio DOT, New York Association of Municipal Planning Organizations, Alaska DOT&PF, Connecticut DOT, VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 • States would not be able to meet the 5 percent requirement. • FHWA should establish the threshold at 10 percent (or higher) or not establish a threshold at all. • State DOTs should set their own requirement as part of the target setting process. The requirement should be distinct by region. • The minimum pavement condition requirements should consider a range of pavement condition thresholds that accommodate regional variation. • The rule should establish criteria that reflect a rational assessment of a State’s Transportation Asset Management Plan.93 • Funds should not be diverted from one program to another as a penalty for not meeting the minimum condition standard. • The FHWA should delay implementation of the minimum standard for 48 months from the effective date of the rule.94 • The FHWA should incorporate safety measures into the minimum condition for the Interstate System. In the NPRM, FHWA cited a review of the reported conditions in recent HPMS submissions which suggested that at least 40 of the 52 jurisdictions could meet the 5 percent standard. The existing HPMS data is not as comprehensive as was proposed in the NPRM, but suggests that most State DOTs already prioritize funding to maintain Interstates at a high level. The FHWA believes that setting the threshold higher than 5 percent Poor is not justified by any available data and does not accomplish the national goal of keeping the Interstate System in a state of good repair. Acknowledging that there is virtually no existing data on performance, FHWA made a commitment in the NPRM to review the data submission from State DOTs for the first performance period and conduct a separate rulemaking to change the minimum standard if justified by the assessment of Interstate pavement conditions. In response to the suggestion that State DOTs set their own minimum standard for Interstate highways, the statute clearly indicates the requirement for a national standard as part of the NHPP and specifically directs FHWA to establish it. The minimum standard is seen as the minimum tolerable condition for the Interstate system to meet the national goals set in the legislation. Georgia DOT, Texas DOT, New York Metropolitan transportation Council. 93 New York DOT. 94 AASHTO, Connecticut DOT, New Jersey DOT. PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 5941 Recent submissions to the HPMS suggested that State DOTs prioritized Interstate pavement conditions in every State and did not show significant differences in any region, except in Alaska. Alaska’s recent submissions to HPMS showed rates of roughness, cracking, and rutting many times more than other parts of the country. The Alaska DOT&PF commented that Interstate highways in Alaska do not resemble Interstate highways elsewhere in the Nation. They cited the obvious climatic issues present in an Arctic and sub-Arctic environment such as embankment failures due to melting permafrost, cracking, and settlement due to extreme temperatures and the need for studded tire use for 7 months of the year. More importantly, Alaska DOT&PF noted that the Interstate routes were not constructed under the expansion of the National System of Interstate and Defense Highways funding that was used to construct much of the Interstate system in other States. When the Interstate System was designated in Alaska in 1976,95 the routes typically were two lanes, did not have access control, and had been constructed under a variety of standards, none of which met Interstate requirements. In addition, Alaska DOT&PF requested that Section 490.315 only apply to ‘‘signed’’ Interstates. Furthermore, they requested that nonIntestate roads that are not paved or that have similar design features as Interstates should not be subject to the performance measures for pavement either. Although Alaska DOT&PF requested an overall exemption from the minimum standard requirement, MAP– 21 does not provide that option. However, the regional conditions and issues brought to light by the Alaska DOT&PF suggest that a greater allowance for Poor pavements is appropriate. A review of the recent HPMS submissions from Alaska DOT&PF suggests that a standard of no more than 10 percent Poor should be achievable and appropriate for the conditions, as provided for in section 490.315(b). Commenters expressed mixed opinions on the establishment of a minimum condition threshold that would become more stringent over time. Several commenters expressed concern that pressure to meet a difficult minimum condition threshold may push State DOTs to implement a ‘‘worstfirst’’ approach to pavement preservation, which would run counter to the asset management principles and 95 23U.S.C. E:\FR\FM\18JAR5.SGM 103(c)(1)(B)(ii). 18JAR5 5942 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations planning approach advocated by FHWA.96 However, AASHTO and the State DOTs of California, Louisiana, and Oregon recommended FHWA evaluate the effects of the national level performance measures and targets. They suggested that FHWA consider a graduated approach to setting minimum condition levels to ensure that these policies have a positive impact on management approaches. The New York State DOT indicated that the establishment of penalties and minimum conditions should take into consideration sound performance and asset management policies. The New York State DOT suggested a delay until State DOTs adopt such measures. The FHWA agrees that sound performance and asset management policies will aid State DOTs in establishing and achieving desired performance targets. However, it is clear that the intent of 23 U.S.C. 150(b)(2)(iii) and 23 U.S.C. 119(f)(1) is to keep Interstate pavements in a state of good repair in order to achieve the national goals outlined in the statute. The imposition of penalties that transfer Federal funds to Interstate programs is intended as a last resort for State DOTs that have not met this expectation. Delaying this effort would be contrary to the intent of the legislation. In terms of implementation, the final rule establishes that State DOTs must start collecting Interstate pavement data for the HPMS according to the requirements in the rule not later than January 1, 2018, with the first reporting to HPMS not later than April 15, 2019. The FAST Act eliminated the ‘‘two consecutive reporting periods’’ provisions that were outlined in the NPRM. Therefore, the first evaluation of the Interstate pavement conditions for minimum condition levels will occur based on information in the HPMS database as of June 15, 2019. Delaying this determination is contrary to the intent of the FAST Act. There are no changes to this section in the final rule except for modifying the 5 percent minimum requirement for Poor pavement condition to 10 percent in the State of Alaska. mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.317 Penalties for Not Maintaining Minimum Interstate System Pavement Condition The FHWA proposed a methodology to annually assess the condition of Interstate pavements to determine 96 State DOTs of Arkansas, Oregon and Mississippi, the Southern California Association of Governments, the Seattle Department of Transportation. VerDate Sep<11>2014 22:37 Jan 17, 2017 Jkt 241001 compliance with the minimum condition requirements in 23 U.S.C. 119(f). The MAP–21 specifically applies penalties to State DOTs that do not meet the minimum requirements for pavement condition. These penalties adjust the funding requirements for the Interstate System until the minimum condition standards are met. The AASHTO and the NCPP outlined concerns from State DOTs over the application and subsequent consequences of not meeting the minimum condition requirements established by Congress and proposed by FHWA in the NPRM with the following arguments: • Penalties should be eliminated in their entirety because they can lead to a ‘‘worst-first’’ management approach. • The FHWA should allow longer timeframes for reporting periods before imposing mandatory penalties. • The transition to the proposed full extent data collection requirements for pavements needs to be fully implemented before assessing penalties for minimum condition. • Minimum condition and penalties should consider important factors like the current conditions for Interstate pavements or other stressors, such as impacts of State-specific climates. • The FHWA should defer the imposition of any penalties and minimum condition thresholds to the fullest extent possible. Penalties should be a last resort and only utilized if a State DOT has not adopted sound performance and asset management policies and methods. • The FHWA should be cautious if establishing a minimum condition goal based primarily on a limited amount of data. • Attainment of minimum condition thresholds without sufficient and reliable Federal funding will be difficult for some States 97 and therefore detrimental to off-NHS needs. Several State DOTs 98 agreed with AASHTO’s comments and suggested that no standard was needed or that the minimum condition standard should be set at a level that would be much easier to meet. The Michigan State Transportation Commission (STC) and Michigan’s Transportation Asset Management Council (TAMC) suggested that the ‘‘5 percent Poor’’ (or 95 percent Good/Fair) goal for Interstate pavements should be removed from the rule, arguing that setting such a high standard 97 New York DOT, National Asphalt Paving Association (NAPA). 98 New York State DOT, Connecticut DOT, Delaware DOT, Oregon DOT, Maine DOT, New Hampshire DOT, Vermont AOT, New York Association of Municipal Planning Organizations. PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 for Interstate pavements will undermine State DOTs’ ability to improve the condition or ensure the performance of the miles of NHS pavement under their control. Title 23 U.S.C. 150(a) contains a declaration of policy directing the NHPP to provide efficient investment of Federal transportation funds by focusing on national transportation goals. These goals emphasize the importance of national routes to the economy, safety, and other concerns of the Nation. By including the requirements for a minimum level of condition for Interstate pavements and the penalty provisions in 23 U.S.C. 119(f), the statute focuses on the Interstate system as an essential part of achieving the stated goals. The statute is also clear that redirection of Federal funds is a last resort when Interstate highways do not meet the expectations for state of good repair. A review of the Highway Statistics table for 2013 99 indicates that the percentage of State maintained highways that are Interstate lane miles averages 2.5 percent, with no State having more than 7 percent of the State maintained lane miles on the Interstate System. Even in the worst case, maintaining the Interstate lane miles to achieve 95 percent in Fair or better condition would not require the level of investment that would drive a program to a ‘‘worst-first’’ approach. On the contrary, good maintenance and preservation, as currently practiced by many State DOTs, would minimize requirements for major investment on these routes, most likely well below the threshold of 5 percent in Poor condition. With respect to the timelines for implementation, the final rule takes into account the time State DOTs will need to acquire data collection equipment or arrange for contract data collection in section 490.309(a). The AASHTO and the concurring State DOTs 100 noted that there may be climatic and other stressors affecting conditions of Interstate pavements. This may be true, but there is no evidence other than State HPMS submissions to estimate whether this variation actually exists. An examination of the 2013 submissions to HPMS suggests that no distinct variations in IRI or other reported pavement characteristics based on regional conditions were reported except in Alaska. Based on this finding 99 Highway Statistics 2013 Table HM–60. DOT, Connecticut DOT, Kentucky DOT, New Jersey DOT, New York State DOT, Tennessee DOT, Texas DOT, Alaska DOT&PF, and Georgia DOT. 100 Alabama E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations and the estimation that the majority of State DOTs will meet the minimum pavement condition standard, the final rule was not changed except to accommodate Alaska, as described above. However, due to the limited availability of data on performance, FHWA committed to reexamine the pavement performance parameters after the first performance period and open a new rulemaking effort to make changes, if justified. The MAP–21 language ties together the requirements for asset management plans and performance measurement. As previously stated, State DOTs are expected to have an asset management plan and sound performance policies within a certain period of time designated in the respective rules. In establishing the implementation schedule for data collection and performance evaluation under subpart C, care was taken to give State DOTs enough time to develop and implement the necessary programs to ensure pavement performance. The FHWA agrees with AASHTO that the imposition of the penalty is a last resort effort necessary to ensure acceptable performance of the Interstate System to achieve the national goals for the NHPP. mstockstill on DSK3G9T082PROD with RULES5 Discussion of Section 490.319 Requirements Other The FHWA proposed the Data Quality Management program requirements in section 490.319(c) to implement 23 U.S.C.150(c)(3)(A)(iv) for pavement condition data. As FHWA indicated in the NPRM, the structure of the data quality Management Program is left up to State DOTs but this section proposed that the plan must have methods to ensure that equipment is working properly, people are trained, data quality is being checked, and that a method of error resolution is documented. However, AASHTO and a few State DOTs 101 objected to the language. They suggested that a data quality management program was not called for in the legislation; that no specific details are mentioned in the legislation; and that there is concern with the variability among FHWA Division Office approvals. The Oregon DOT requested clarification on which FHWA office would review and approve the Data Quality Management Program, noting that the requirement for a State DOT to seek approval for any change to the 101 Alaska DOT&PF, Connecticut DOT, Idaho DOT, Montana DOT, New York DOT, North Dakota DOT, Oregon DOT, South Dakota DOT, Washington DOT, Wyoming DOT. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Program seemed excessive. In their joint letter, the State DOTs of Idaho, Montana, North Dakota, South Dakota, and Wyoming suggested that the requirements for Data Quality Management be revised so that States must certify they have a data quality management program and provide a description to FHWA. Conversely, the Alaska DOT&PF supported the provision to have a Data Quality Management Program and suggested that the Program be approved prior to States using the data for the performance measures. The FHWA disagrees with the comments from AASHTO and those concurring State DOTs. The FHWA believes that MAP–21 gives it the discretion to establish requirements for implementing 23 U.S.C. 150(c)(3)(A)(iv). The FHWA also believes the data quality management program requirements in section 490.319(c) will ensure quality data and provide a sufficient level of consistency in report expectations. The FHWA believes the proposed language is consistent with the nine principles 102 in the NPRM preamble, which were considered in the development of the proposed regulation. Additionally, a recent FHWA study 103 on data quality indicated that most State DOTs have implemented parts of programs to ensure data quality but have not documented or formalized their use in the data collection process. As stated in the NPRM, the intent of this section was to ensure that the important step of formalization in the program occurs. The FHWA retains the language that leaves the content of the data quality management plan up to State DOTs because FHWA recognizes that every State DOT has unique methods, needs, and opportunities in the data collection. The FHWA approval of each State DOT’s data quality management plan is to be based on its ability to deliver the specific outcomes identified in the NPRM and retained in the final rule. Specific guidance will be provided to Division Offices to ensure consistency in the Pavement Data Quality Plan requirements. 102 Nine principles used in the development of proposed regulations for national performance management measures under 23 U.S.C. 150(c), www.regulatons.gov, Docket FHWA–2013–0053. 103 ‘‘Practical Guide for Quality Management of Pavement Condition Data Collection’’ FHWA–HIF– 14–006. PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 5943 C. Subpart D National Performance Management Measures for Assessing Bridge Condition Discussion of Section 490.401 Purpose To implement the provisions of 23 U.S.C. 150(c)(3)(A)(ii)(III), FHWA proposed a statement of purpose which required the establishment of performance measures for State DOTs to use to assess the condition of bridges carrying the NHS which includes onand off-ramps connected to the NHS. This is done to carry out the NHPP. The FHWA revised section 490.401 to provide clarity as to which highway bridges are subject to this regulation. The FHWA received two comments on section 490.401. The Oregon DOT argued that the proposed rule would create a conflict by giving the Federal Government the authority to interfere with a State DOT’s ability to independently manage its highway infrastructure assets. The Virginia DOT provided a statement of support. The Virginia DOT argued that the proposed rule would promote a preservation approach to managing highway bridges and is an improvement over the ‘‘worst-first’’ approach. The overall purpose of this rule and the underlying statutory provisions is to ensure that Federal transportation funds are efficiently invested and that the condition of highway infrastructure assets are maintained in a state of good repair, while increasing accountability and transparency of the Federal-aid highway program. (See 23 U.S.C. 150(a) and (b).) Although recipients of Federalaid highway funds are expected to make transportation investments with a focus on national goals, the authority to establish performance targets and make project selections is still maintained by State DOTs. The FHWA retains the language in section 490.401, as proposed in the NPRM, with a minor revision that provides clarity as to which highway bridges are subject to this regulation. The stated purpose is consistent with statutory language in MAP–21 and clear in the purpose of the performance measures. Discussion of Section 490.403 Applicability To implement the statutory provisions under 23 U.S.C. 150(c)(3)(A)(ii)(III), FHWA proposed that subpart D be applicable to bridges carrying the NHS which includes on- and off-ramps connected to the NHS. The FHWA received comments from AASHTO, ARC, and 12 State DOTs (Arkansas, Colorado, Connecticut, Iowa, E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5944 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Maine, Michigan, Missouri, New Hampshire, North Dakota, Oklahoma, Tennessee, and Vermont) generally stating that State DOTs should not be responsible for the reporting of data, establishment of targets, asset condition, and managing of assets that are beyond their control. The FHWA retains the language in section 490.403 with a minor revision that provides clarity as to which highway bridges are subject to this regulation. Section 23 U.S.C. 150(c)(3))(A)(ii)(III) of Title 23 of the U.S. Code requires the establishment of measures for ‘‘States to use to assess the condition of bridges on the National Highway System’’ for the purpose of carrying out the NHPP. The Section does not define the terms ‘‘National Highway System’’ or ‘‘States.’’ The MAP–21 did not provide FHWA with the authority to change the definition of State or NHS. Thus, the definitions in 23 U.S.C. 101(a)(15) and 23 U.S.C. 101(a)(25) have been used in this Rule. Therefore, a State DOT is not alleviated of the responsibilities under sec. 150 for the NHPP. As stated in the NPRM, FHWA recognizes that there is a limit to the direct impact State DOTs and the MPOs can have on the performance outcomes within the State and the metropolitan planning area, respectively. The FHWA encourages State DOTs to consult with relevant entities (e.g., Federal Land Management Agencies, MPOs, local transportation agencies, and tribal governments) as they report performance data and establish targets. Consultation will help State DOTs to better assess condition of bridges carrying the NHS, which includes on- and off-ramps connected to the NHS and better identify and consider factors outside of their direct control that could impact future condition/performance. (See discussion on ownership in discussion section for section 490.105(d).) The FHWA received comments from six State DOTs (Connecticut, Illinois, Iowa, Michigan, Minnesota, and Missouri) generally stating that the applicability of subparts C and D should be consistent. Specifically, they commented that the regulations apply only to mainline highway bridges carrying the NHS and that highway bridges on on- and off-ramps that connect to the NHS should not be subject to these regulations. Historically, FHWA has provided guidance stating that ramps are to be considered to be the same functional classification as the highest facility VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 served.104 Although the NHS is not solely based on functional classification, but is instead defined by 23 U.S.C. 103, the practice of assigning the highest system served for a ramp is consistent with the FHWA guidance referenced above. Therefore, this section is applicable to the NHS (defined by 23 U.S.C. 103), which includes highway bridges that carry the NHS and bridges on on- and off-ramps connecting to NHS. The FHWA received comments from five State DOTs (Connecticut, Illinois, Mississippi, Virginia, and Washington) seeking clarification on their responsibility for highway bridges on the NHS that cross the border with a neighboring State. One commenter expressed concern that there would be a ‘‘double-counting’’ of the deck area of highway bridges on the NHS when the bridge performance measures are calculated. Another commenter recommended that the responsibility of a highway bridge that crosses a border with a neighboring State should be based on the percentage of ownership. The commenter further stated that a State that does not own or share such a bridge should not be held responsible. In regards to the responsibility for highway bridges carrying the NHS that cross a border with a neighboring State, State DOTs should refer to the above discussion on responsibility for the reporting of data, establishment of targets, asset condition, and managing of assets that are beyond the control of State DOTs and MPOs. State DOTS should also refer to the discussion on ownership in the discussion of section 490.105(d). Based on these previous discussions, border bridges are to be regarded in the same manner as any other highway bridge carrying the NHS that is within a State’s boundaries. In calculating the deck area, the total deck area of all the border bridges that cross a State’s border will be included in the calculation of an individual State DOT’s bridge performance measures and the percentage of the deck area of bridges classified as Structurally Deficient. However, there will be no ‘‘double-counting’’ of deck area as FHWA has not proposed a summation or aggregate calculation of all State DOTs’ bridge performance measures or percentage of the deck area of bridges classified as Structurally Deficient into national percentages. 104 U.S. Department of Transportation, Federal Highway Administration. Highway Performance Monitoring System, Guidance for the Functional Classification of Highways http:// www.fhwa.dot.gov/policy/ohpi/hpms/ fchguidance.cfm. PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 The New York DOT suggested that an exception to the bridge performance measures be established for very large or historic bridges as they would ‘‘never be replaced’’ and ‘‘should be treated as perpetual maintenance exceptions.’’ Title 23 U.S.C. 150(c)(3))(A)(ii)(III) provided no exception for certain sized or aged highway bridges. Therefore, any highway bridge that carries the NHS or ramp that connects to the NHS, and meets the section 490.405 definition of a bridge, is subject to the requirements of subparts A and C. Discussion of Section 490.405 Definitions To implement 23 U.S.C. 119(f)(2) and 23 U.S.C. 150(c)(3)(A)(ii)(III), FHWA proposed definitions for the terms ‘‘bridge’’ and ‘‘structurally deficient.’’ The FHWA did not receive any substantive comments regarding the definition for bridge. However, as discussed in section 490.309 (Using Structure Type to Identify and Exclude Bridges), FHWA moved the definition of bridge from this section to subpart A (i.e., section 490.101) to ensure the term is used in a consistent manner throughout this rule. The FHWA received comments from AASHTO (with support from Michigan and Maryland DOT), NYSAMPO and 12 State DOTs (Alabama, California, Connecticut, Idaho, Montana, New York, North Carolina, North Dakota, South Dakota, Texas, Washington, and Wyoming) suggesting changes to the proposed definition of the bridge classification ‘‘structurally deficient.’’ One suggestion was to lower the threshold for the NBI Items (Items 58Deck, 59-Superstructure, 60Substructure, and 62-Culverts) that are used to classify a bridge as structurally deficient. The suggestion was to lower the threshold from a condition rating of four—poor condition, which is described in FHWA’s Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges as Poor: advanced section loss, deterioration, spalling, or scour, to three—serious condition which is described as loss of section, deterioration, spalling, or scour have seriously affected primary structural components; local failures are possible; fatigue cracks in steel or shear cracks in concrete may be present. Additional suggested changes included removing NBI Item 58-Deck from the calculation of the classification, and changing the definition and calculation of ‘‘Structurally Deficient’’ to be the same as the performance measure ‘‘Percentage E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations of NHS bridges classified as in Poor condition.’’ The Missouri and New Hampshire DOTs supported the proposed definition. The Colorado DOT noted that the proposed definition is identical to the historical definition. Three other State DOTs (Connecticut, Iowa, and New Jersey) suggested discontinuing the use of the classification and developing a new term that better serves the purpose of the provisions. The Georgia DOT requested clarification on the differences between the classification of structurally deficient and the bridge performance measure of Poor. The Oregon DOT commented that the proposed definition for the classification of structurally deficient was more ‘‘amenable to element level’’ bridge data rather than bridge components (i.e., deck, superstructure, substructure, and culverts). The PSRC recommended that the calculation of the bridge performance measure for Poor equate to the proposed definition and methodology for the classification of structurally deficient. The FHWA retains the term ‘‘structurally deficient’’ in the final rule as the statutory language in MAP–21 uses it. Section 119(f)(2) of Title 23 U.S.C. requires FHWA to determine the total deck area of bridges in each State on the NHS that have been classified as structurally deficient, and to apply a penalty, when necessary, based on an established percentage of that classification. The statutory language does not grant FHWA the authority to disregard the use of the term ‘‘structurally deficient.’’ The FHWA revised the definition and methodology for the classification of structurally deficient so that it equates to the performance measure of bridges classified as in Poor condition. The revision also addresses the concern that the proposed definition was more amenable to element level bridge data rather than the NBI component level data that is used for classification. The revised definition considers only the physical condition of the bridge. As proposed in the NPRM, the classification of structurally deficient goes beyond the metrics of the bridge performance measures and physical condition. It also considers the level of service the bridge provides as compared to a bridge that is built to current standards. Equating the classification of structurally deficient with bridges classified as in Poor condition provides consistency as it aligns the NHPP provisions for the condition of NHS bridges (23 U.S.C. 119(f)(2)), which use the classification of structurally VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 deficient. Section 150(c)(3) of Title 23 of the U.S. Code requires the establishment of performance measures for State DOTs to use to assess the condition of bridges on the NHS and for the purpose of carrying out the NHPP. Additionally, the differences in the population of bridges on the NHS that are classified as structurally deficient by the historical definition and method in NPRM versus in Poor condition are minimal as the calculation methods are similar. According to FHWA’s NBI for the 10-year period of 2005 to 2014, the maximum difference between the methodology proposed in the NPRM and the one in the final rule by both the percentage of number of bridges and percentage of deck area of bridges is 0.2 percent. Lowering the threshold for NBI Items 58, 59, 60, and 62 from a condition rating of four to three and removing NBI Item 58 from the calculation of the classification of structurally deficient were not considered. This would represent fundamental changes to a historical classification method and would result in vastly different populations of bridges carrying the NHS, which includes on- and off-ramps connected to the NHS, than what was intended to be addressed by 23 U.S.C. 119(f)(2). The Minnesota DOT suggested providing ‘‘clear and concise definitions’’ for the terms so that ‘‘there is consistency in the interpretation’’ of the regulations. The FHWA agrees and believes that clarity is provided in the regulations. The Missouri DOT requested the NBI algorithms used to calculate and determine if a highway bridge is to be classified as structurally deficient. As discussed above, FHWA revised the definition and methodology for the classification of structurally deficient so that it is the same calculation used for classifying bridges as in Poor condition. The historical NBI algorithms that were used to calculate NBI Items 67 (Structural Evaluation) and 71 (Waterway Adequacy) will not be used. Discussion of Section 490.407 National Performance Management Measures for Assessing Bridge Condition To implement the statutory provisions under 23 U.S.C. 150(c)(3)(A)(ii)(III), FHWA proposed two performance management measures for assessing the condition of bridges on the NHS: (1) Percentage of NHS bridges classified as in Good condition; and (2) percentage of NHS bridges classified as in Poor condition. The ASCE and the Georgia DOT supported the proposed section. PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 5945 The AASHTO expressed general support of the proposed three classifications and two performance management measures for assessing the condition of bridges on the NHS. However, AASHTO, AMPO, and eight State DOTs (Idaho, Montana, Oregon, North Dakota, Rhode Island, South Dakota, Texas, and Wyoming) recommended that additional language be provided to the classifications and performance measures to communicate and focus on the needs of bridges rather than the condition. For example: (1) Good condition bridges should be described as bridges that need routine or cyclic maintenance; (2) Fair condition bridges should be described as bridges that need condition based preventative maintenance; and (3) Poor condition bridges should be described as bridges that need rehabilitation and or replacement. While providing such additional language may be beneficial when communicating the needs of bridges, the recommended language may be interpreted as limiting the types of projects that can be performed on bridges in certain conditions. The determination of what projects or activities to perform on a bridge is at the discretion of its owner. The Federal-aid highway program provides such flexibility. Eligible bridge projects, regardless of the condition of the bridge, are defined in each of the programs. For example, under the NHPP, the list of eligible projects that includes bridge activities, can be found under 23 U.S.C. 119(d). Although flexibility exists, it should be noted that as part of performance management, recipients of Federal-aid highway funds must make transportation investments to achieve performance targets that make progress toward national goals. The national performance goal for bridges is to maintain their condition in a state of good repair. The additional language is also inconsistent with the statutory language that requires FHWA to establish performance measures. In 23 U.S.C. 150(c)(3)(A)(ii)(III), the Secretary is required to establish measures for States to use to assess the condition of bridges on the National Highway System. A bridge condition measure describes the existing, in-place bridge’s physical condition as compared to its as-built physical condition. The statute does not provide that an assessment of needs such as maintenance, rehabilitation, or replacement be used to measure the performance of bridges. Instead, ‘‘the condition of bridges’’ is the performance measure. Therefore, FHWA retains the language in the final rule for the three E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5946 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations classifications and two performance management measures for assessing the condition of bridges carrying the NHS, which includes on- and off-ramps connected to the NHS. The AMPO, California DOT, California State Association of Counties, COMPASS, Metropolitan Transportation Commission, the NYMTC, and an anonymous citizen suggested that additional factors other than those proposed (NBI Items 58, 59, 60, and 62) be included in the calculation of the performance measures. Suggestions included factors that considered level of use, vehicle speed on the bridge, and seismic and scour vulnerability. As stated above, the statute that required the establishment of performance measures for bridges on the NHS did not provide for any factors other than ‘‘condition.’’ Level of use, such as average daily traffic and vehicle speed, are not considered measures of the condition of a bridge. Instead, these factors are measures of functionality. Such measures are used to describe a bridge in relation to the level of service it provides to its highway. Similarly, seismic and scour vulnerability are not considered measures of condition. They would be considered measures of risk for certain types of extreme events. A bridge’s physical condition is one of many factors (e.g., bridge design, location, and others) that should be considered when determining vulnerability or risk to extreme events. However, vulnerability and risk to extreme events are not measures of condition. Therefore, FHWA retains the language for the metrics to be used in calculating the bridge performance measures. The Connecticut DOT commented that the performance measures should not be weighted only by deck area as this may incentivize bridge owners to prioritize plans and projects for larger bridges over smaller ones. The Connecticut DOT also suggested that having an additional set of performance measures that are weighted by number of bridges instead ‘‘will ensure that the State also addresses smaller bridges.’’ This dual set of performance measures ‘‘will be helpful for both States and FHWA to assess and report a more accurate description of the nation’s infrastructure.’’ The AMPO had a similar comment stating, ‘‘There is uncertainty about the use of percent of bridge deck area instead of percent of all bridges. This is probably more of a concern for States with longer bridges (i.e., Louisiana as opposed to Montana). For instance if the Lake Pontchartrain Causeway (26.2 miles) ended up rating as Poor this ends up being the VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 approximate equivalent of 8,300 culverts being rated as Poor. The end result might force Louisiana to improve the Causeway at the expense of other work.’’ Requiring additional bridge performance measures weighted by the number of bridges would be inconsistent with one of the nine principles in the NPRM preamble which were considered in the development of the proposed regulation (Minimize the Number of Measures). While performance measures weighted by the number of bridges provide an amount of bridges in certain conditions, performance measures weighted by deck area provide a greater perspective on the extent of the condition of bridges as the size of a bridge is taken into account. Therefore, FHWA retains the language for the two performance measures for assessing the condition of bridges on the NHS, as weighting the performance measures by deck area provides more information through a minimum number of required performance measures. The FHWA recognizes that performance measures based on deck area may influence State DOTs to prioritize plans and projects for larger bridges over smaller ones so as to achieve improved conditions at a greater rate. However, FHWA is confident that this and the related asset management rulemaking to establish minimum standards for State DOTs to develop their bridge management systems and investment strategies will ensure that State DOTs choose the most efficient investments for Federal transportation funds. This final rule, in combination with the State Asset Management Plan rule (RIN 2125–AF57), will ensure that State DOTs focus on national transportation goals, increase accountability and transparency, and improve investment decisions regardless of bridge size. The Idaho DOT recommended that a statement be provided in the final rule to clarify that States and MPOs are not precluded ‘‘from implementing (whether already in effect or new) systems that include assets in addition to NHS assets, such as non-NHS bridges, provided that the State meets Federal requirements as to the assets that are required to be included in the Federal performance management system by the Federal rule. Moreover, as to non-NHS assets, the rule should not require a State to have to utilize the specifics of the Federal rule.’’ The Oregon DOT provided a similar comment stating, ‘‘States must consider all bridges regardless of the system when setting up maintenance, preservation, or replacement programs. State plans to PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 use available transportation funds should be developed based on priorities that consider the system, traffic volume, and condition, but non-NHS needs must also be addressed in order to maintain economic viability and mobility across an entire transportation system. If the national measures are really intended to be used to measure system improvement resulting from investments, both NHS and non-NHS systems should be reported so a comprehensive view of a state’s investment strategies will be presented.’’ The applicability of subpart D is described in section 490.403. Subpart D is only applicable to bridges carrying the NHS, which includes on- and offramps connected to the NHS. Therefore, provided that the requirements of this final rule are met, State DOTs and MPOs may go beyond these minimum requirements when implementing a performance management system or program. (See the Final Rule for Asset Management Plan for further information on implementing a performance management program on non-NHS bridges.) The Ohio DOT inquired about the process by which State DOT bridge performance targets will be submitted to FHWA; the criteria for changing a bridge performance target; and whether performance targets are to be approved by FHWA. The requirements for reporting on performance targets are described in section 490.107. In general, State DOTs submit their performance targets to FHWA through an electronic template to be provided by FHWA. The process for adjusting a 4-year target is described in section 490.105 and the required reporting for that adjusted target is in section 490.107. If a State DOT decides to adjust its 4-year target, it must include a discussion in their Mid Performance Period Progress Report on the basis for the adjustment and how the adjusted target supports expectations documented in longer range plans (e.g., State asset management plan and the long-range statewide transportation plan). Regarding FHWA approval of performance targets, MAP–21 did not provide FHWA the authority to approve or reject State DOT and MPO targets. The Metropolitan Transportation Commission commented that it ‘‘uses and supports the use of the National Bridge Investment Analysis System to analyze bridge maintenance needs.’’ They also ‘‘recommended that FHWA make the tool available and provide appropriate training.’’ The NYSAMPO expressed concern that the use of performance measures for bridges (i.e., Poor and Good) will E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations encourage the use of a ‘‘worst-first’’ approach to investment, and limit the flexibility of State DOTs to employ asset management strategies and approaches. The AMPO expressed a similar concern that ‘‘the proposed process encourages a ‘‘worst-first’’ approach rather than focusing on strategically important facilities.’’ The FHWA acknowledges that indiscriminately attempting to improve condition could lead to a ‘‘worst-first’’ approach to investment, but believes that the framework provided by MAP– 21 will support a more strategic investment strategy in most cases. 23 U.S.C. 150(a) directs the NHPP to provide a means of efficient investment of Federal transportation funds by focusing on national transportation goals. These goals emphasize the importance of national routes to the economy, safety, and other concerns in the entire Nation. In a recent FHWA report to Congress (National Bridge and Tunnel Inventories Report—February 2015), it was shown that for the 10-year period of 2005–2014, the percentage deck area of bridges on the NHS classified as structurally deficient improved from 8.5 percent to 6.0 percent.105 Therefore, even in the worst case, maintaining bridge conditions on the NHS to achieve 90 percent in Fair or better condition would likely not require the level of investment that would drive a program to a ‘‘worst-first’’ approach. On the contrary, good maintenance and preservation, as currently practiced in many State DOTs, would keep the requirements for major investment on these routes at a minimum, most likely well below the allowable 10 percent classified as structurally deficient. The Texas DOT commented that three classifications for assessing bridge condition were presented in the NPRM: (1) Percentage of NHS bridges classified as in Good condition; (2) percentage of NHS bridges classified as in Fair condition; and (3) percentage of NHS bridges classified as in Poor condition. They recommended ‘‘not defining the Fair condition criteria and not making the States generate and maintain a value that is not utilized in the performance measures.’’ Although the classification of bridges in Fair condition and its calculation is retained in the final rule, State DOTs and MPOs are not required to establish or report on performance targets for this classification. The reason FHWA retains 105 U.S. Department of Transportation, Federal Highway Administration. Report to Congress, National Bridge and Tunnel Inventories Report, Fall 2015, has been posted to the Docket. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 the language is that system-wide monitoring of assets will be done for the three classifications, not just the two bridge performance measures. The Fair classification is a simple calculation from the other two; therefore, there is no requirement for reporting on this classification. The Colorado DOT commented that the proposed measures are ‘‘lag’’ measures focused on the percentage of structurally deficient deck area on the NHS. Therefore, they do not forecast or predict when a bridge will become structurally deficient. The Colorado DOT suggested that predictive structurally deficient performance measures should be proposed instead. Examples of these performance measures are leaking expansion joints over substructure elements, unsealed decks, failed deck seals, debris collections that accelerate deterioration, and failed steel protection systems. The Colorado DOT also commented that the proposed performance measures do not directly address the risks of bridges that are scour critical or do not meet current design standards. As discussed in sections 490.405 and 490.411, FHWA revised the definition and methodology for the classification of structurally deficient so that it equates to the performance measure of bridges classified as in Poor condition. Also previously discussed, other than condition, the 23 U.S.C. 150 required the establishment of performance measures for bridges on the NHS but did not provide for any other factors such as forecasting or predicting. The suggested predictive performance measures go beyond describing the existing, in-place physical condition of a bridge. Forecasting or predicting bridge conditions is a bridge management tool or process rather than a measurement of performance. (See the Asset Management Plan final rule (RIN 2125– AF57), as the minimum standards for developing management systems will include forecasting deterioration.) As for the additional factors based on risk, such as scour critical and not meeting current design standards, these are not considered a measure of condition. Therefore, FHWA retains the metrics in section 490.407 to be used in calculating the bridge performance measures. Discussion of Section 490.409 Calculation of National Performance Management Measures for Assessing Bridge Condition To implement 23 U.S.C. 150(c)(3)(A)(ii)(III), FHWA proposed calculation methods to carry out the bridge condition related requirements of PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 5947 this part and make the significant progress determination in section 490.109. The FHWA revised section 490.409(b) to provide clarity as to which highway bridges are subject to this regulation. The Metropolitan Transportation Commission expressed support for the proposed classification approach for determining the condition of a bridge, where the lowest rating received for any component of a bridge determines the overall condition. Three State DOTs (New York, North Carolina, and North Dakota) suggested that an alternative method to the proposed minimum of condition rating method be used for national performance measures under the NHPP. They suggested the weighted average method, which consists of calculating an overall condition rating based on a weighted average of NBI Items 58, 59, and 60. Another method that was offered was to simply not include NBI Item 58 in the calculation of the classification. An additional recommendation was to define Fair as ‘‘a bridge that is not structurally deficient and also having at least one NBI score of 5.’’ The recommendation stated that ‘‘a Good bridge would be defined as a bridge that is not structurally deficient and also having a minimum NBI score of 6.’’ As was noted in the NPRM, FHWA performed a study (Improving FHWA’s Ability to Assess Highway Infrastructure Health) that evaluated five different methods (four different weighted average methods and one minimum condition rating method) to assign bridge condition based on the classifications of Good, Fair, or Poor.106 The study concluded that for the Interstate System: (1) Percentages of bridges classified as Good, Fair, or Poor were consistent for all methods with little variation; (2) minimum condition rating method resulted in the highest percentage of bridges in Poor condition; (3) percentages of bridges classified as Good, Fair, or Poor based on the four weighted average methods are not sensitive to the weights; and (4) bridge deck conditions alone are not typically the driving factor in the Good, Fair, or Poor calculations. The FHWA further assessed the different methods and observed that the magnitude in differences between condition ratings for individual NBI items was somewhat nullified when a final average or weighted average method was 106 FHWA (2012). Improving FHWA’s Ability to Assess Highway Infrastructure Health Pilot Study Report, FHWA–HIF–12–049. http:// www.fhwa.dot.gov/asset/pubs/hif12049/ hif12049.pdf. E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5948 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations employed. This observation was also noted in the 2012 study.107 The masking or obscuring of possible Poor bridge conditions is a major concern with the final average or weighted average methods. This concern also applies to the suggested method of a Fair bridge ‘‘having at least one NBI score of 5’’ and ‘‘a Good bridge . . . having a minimum NBI score of 6.’’ Although these methods could be further refined, the development, subjectivity, and complexity of such methods makes them less desirable than the simple minimum condition rating method. This is especially true because analyses indicate that a refined weighted method would result in the same general classification as the minimum condition rating method. As for the suggested method to not include NBI Item 58 in the calculation of the classification, the deck is a critical component of a bridge as it provides the surface upon which vehicles travel. Omitting such a fundamental component of a bridge would not provide an accurate assessment of its overall condition or performance. Therefore, FHWA retains the language in section 490.409 for the calculations of the three bridge classifications and the two bridge performance measures. However, FHWA made a minor revision that provides clarity as to which highway bridges are subject to this regulation. The South Jersey Transportation Planning Organization argued that the proposed minimum condition rating method was controlled by lowest rating of a bridge’s three NBI Items (58, 59, and 60) substructure, regardless of whether any of the proposed metrics were rated the same or not. They suggested that the method ‘‘may have a disadvantage in that some categories may be much more expensive to repair, and as such, give a distorted view of the over-all bridge repairs needed.’’ As discussed above, in assessing various methods for determining the classification of a bridge, FHWA is concerned with the masking or obscuring of possible Poor bridge conditions when an average or weighted average method is used. Although these methods could be further refined, the development, subjectivity, and complexity of such methods makes them less desirable than the simple minimum condition rating method. As previously stated, analyses indicate that a refined weighted method would result in the same general classification as the minimum condition rating method. Regarding the possible distortion of 107 Ibid. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 estimated costs and overall bridge repair needs, other than ‘‘condition,’’ the statute did not provide for any other factors such as costs or needs. Four State DOTs (Delaware, Idaho, North Carolina, and North Dakota) disagreed with the proposed calculation methods for the bridge classifications of Good and Fair. Suggestions included making the calculation methods flexible to allow State DOTs to define the classifications and the method of calculations for themselves and to include the NBI condition rating of six in the Good classification. The NBI zero to nine scale for condition ratings for the classifications of Good, Fair, and Poor are based on the historical practice of generalization of the scale and the logical distinctions that are made between the descriptions for the various condition ratings. For example, according to FHWA’s Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, a condition rating of six is described as ‘‘satisfactory condition, structural elements show some minor deterioration.’’ While some commenters have suggested including this condition rating as Good, doing so would be an inaccurate assessment of the condition of the bridge as Good indicates that there are some minor problems, which is different than minor deterioration. Additionally, the comparative analysis study of bridge conditions conducted through NCHRP 20–24(37)E (Measuring Performance Among State DOTs, Sharing Best Practices—Comparative Analysis of Bridge Conditions), recommended defining: (1) Poor as bridges with deck, superstructure, or substructure ratings less than or equal to four; (2) Good as bridges with deck, superstructure or substructure ratings greater than or equal to seven; and (3) all other bridges as Fair condition.108 Therefore, FHWA retains the language of the NPRM, with a minor revision that provides clarity as to which highway bridges are subject to this regulation, for the calculation of the classifications of Good, Fair, and Poor. The Knoxville Regional Transportation Planning Organization suggested that ‘‘reconfiguring the NBI condition rating approach from its current zero to nine rating to a Good, Fair, or Poor rating would not be favorable.’’ They argued that it would be ‘‘complicated to convert the data to fit to the new scale.’’ They also suggested 108 Transportation Research Board of the National Academies, National Cooperative Highway Research Program, NCHRP 20–24(37)E, Measuring Performance Among State DOTs, Sharing Best Practices, http://onlinepubs.trb.org/onlinepubs/ nchrp/docs/NCHRP20-24(37)E_FR.pdf. PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 that ‘‘if the Good, Fair, or Poor rating scale was still used, perhaps there could be a matrix created for the conversion that would further define the new condition rating scale.’’ The FHWA retains the language of the NPRM, with a minor revision that provides clarity as to which highway bridges are subject to this regulation, for the calculation of the three bridge classifications. In section 490.409, the calculation of the classifications are provided in detail, including specific information on how to convert the numerical NBI condition rating to a classification of Good, Fair, or Poor condition (i.e., a conversion matrix is provided). The Missouri DOT argued against the use of the bridge deck area that is reported with element level bridge data, stating that no deck area for culverts is reported with element level data. The deck area calculation for culverts and culverts where the roadway is on a fill are in sections 490.409(c)(1) and 490.409(c)(2) (see formulas and explanations for the terms ‘‘length’’ and ‘‘width.’’) In general, the deck area of a culvert is the product of NBI Items 49 (Structure Length) and 52 (Deck Width). For culvert where the roadway is on a fill, the deck area of a culvert is the product of NBI Items 49 and 32 (Approach Roadway Width). The California and North Dakota DOTs suggested a change to the proposed calculation of deck area for culverts. The change involves replacing NBI Item 32 with the culvert element length in the calculation. The NBI does not include an item for culvert element length. In order for such an item to be used for the calculation of deck area, an additional collection burden would be placed on State DOTs. Currently, the NBI includes Item 32, which provides an accurate measurement to calculate a deck area that is influenced by the roadway. By using the proposed alternative of culvert element length, deck area calculations may be exaggerated. For example, culverts where the roadway is on a significant amount of fill can be much longer than the width of roadway that is supported. This would result in a calculated deck area that is much larger than an area influenced only by the roadway. Therefore, FHWA retains the language of the NPRM, with a minor revision that provides clarity as which highway bridges are subject to this regulation, for calculating the deck area of bridges, including culverts. The California DOT also stated, the proposed deck area calculation ‘‘assumes that every bridge is rectangular in shape. This assumption E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations ignores ramp area, curved configurations, and other irregular deck shapes. The MAP–21 requires the submission of bridge deck area in the elements that could be used to directly report bridge deck area including all irregular configurations. Use of the element deck areas would improve the accuracy of the measure.’’ The MAP–21 did not require State DOTs to report a bridge deck area element as part of 23 U.S.C. 144(d)(2). The Colorado DOT asked whether the areas of approach slabs will be included in the calculation of a bridge’s deck area. The deck area of bridge will be calculated as described in section 490.409. The calculation does not include the areas of approach slabs. The Iowa DOT suggested that a formula similar to FHWA’s former Sufficiency Rating be used instead to classify bridge condition. Formulas such as the Sufficiency Rating were tools to assist in the identification and prioritization of bridge projects and needs. They are not necessarily indicators of physical condition as they included other factors such as level of service and functional obsolescence. As discussed in section 490.407, the statutory language focused the bridge performance measures on the factor of condition, with the national performance goal of maintaining bridge condition in a state of good repair. It did not provide other factors to be considered for the bridge performance measures or the national performance goal. Therefore, FHWA retains the language in section 490.409 for the metrics to be used in calculating the bridge performance measures. The Wyoming DOT recommended that the final rule significantly scale back or modify a number of its requirements, such as additional data collection. In regards to the bridge performance measures, there is no additional data collection burden as the data that is currently collected under 23 CFR 650.305 (National Bridge Inspection Standards) will be used to meet the data requirements for this subpart. The AMPO expressed concern that the combination of bridge data submission requirements (e.g., NBI data and element level bridge data) ‘‘will effectively require States to collect duplicative data at considerable cost.’’ The comment went on to state that the rule should, ‘‘Require States to use either the NBI or the new methodology for all bridge related reporting requirements, but not both.’’ As was stated above, there is no additional data collection burden in regards to the bridge performance measures as the data VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 that is collected under the NBIS will be used. In regards to element-level data, 23 U.S.C. 144(d)(2) requires the collection of such for bridges on the NHS. This type of data is not duplicative of the NBI data as this data provides more detailed information. The New York City DOT commented that there is no reference to biennial inspections as the primary source of bridge related information. The commenter further stated that ‘‘riskbased scheduling at varying intervals of up to 6 years is proposed at the discretion of the owner. Rather, one could keep the biennial inspection interval fixed, but vary the inspection scope. This would be highly appropriate in large structures with components of very different exposure to aggressive influences.’’ The NPRM did not propose any such change to the NBIS which define the intervals at which highway bridges are to be inspected. The NPRM did state that the NBI is the definitive source for national bridge information and that the NBI by definition is an FHWA database containing bridge information and inspection data for all highway bridges on public roads, on and off Federal-aid highways, including tribally owned and Federally owned bridges, that are subject to the NBIS. The California DOT questioned if a scour critical bridge should be considered ‘‘Poor’’ under the provisions of this rule. The California DOT also requested clarification if FHWA’s policy directive related to the Highway Bridge Program of lowering the substructure condition rating (NBI 60) to match the scour code (NBI 113) for scour critical bridges is still in effect as MAP–21 eliminated the Highway Bridge Program. Under this rule, a highway bridge is classified as in Poor condition based on the criteria of section 490.409(b)(3). There is no FHWA policy related to the Highway Bridge Program, which directed the matching of the codes for NBI items 60—Substructure and 113 Scour Critical Bridges. However, the errata to FHWA’s Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, Report No. FHWA– PD–96–001, December 1995, does state, ‘‘The rating factor given to Item 60 should be consistent with the one given to Item 113 whenever a rating factor of 2 or below is determined for Item 113— Scour Critical Bridges.’’ The Louisiana DOT requested that an example State be created and the principals of the bridge measures be applied to it, as it would better their understanding of how the practice will be used. The FHWA will issue guidance on step-by-step procedures that detail PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 5949 the data and the calculations for the national performance measures for 23 U.S.C. 150, which includes the bridge performance measures. The FHWA made an editorial change in section 490.409(b)(1) through (3) to remove the phrase ‘‘of any’’ to provide clarity in the regulatory text that Good, Fair, or Poor classification of a bridge is determined based on the lowest rating of three NBI items (58, 59, and 60) for that bridge. These paragraphs in the final rule now state: ‘‘. . . When the lowest rating of the three NBI items for a bridge (Items 58—Deck, 59— Superstructure, 60—Substructure) is . . .’’ This editorial change did not alter the intent of the original text in the NPRM. Discussion of Section 490.411 Establishment of Minimum Level for Condition for Bridges To implement the statutory provisions under the NHPP for the condition of NHS bridges, FHWA incorporated the minimum condition level established by 23 U.S.C. 119(f)(2). The FHWA revised the NPRM language in section 490.411(a) to provide clarity as to which highway bridges are subject to this regulation. The AASHTO, with support from six State DOTs (Idaho, Montana, North Dakota, South Dakota, Oklahoma, and Wyoming), suggested changes to the proposed methodology for the classification of structurally deficient. Their suggestion was to lower the threshold of the classification for NBI Items 58, 59, 60, and 62 from a condition rating of four (Poor condition, advanced section loss, deterioration, spalling or scour) to three (serious condition, loss of section, deterioration, spalling, or scour have seriously affected primary structural components. Local failures are possible. Fatigue cracks in steel or shear cracks in concrete may be present). The AASHTO and Alabama DOT also suggested removing NBI Items 67 (Structural Evaluation) and 71 (Waterway Adequacy) from the factors in the determination process. The New Hampshire DOT ‘‘strongly’’ disagreed with AASHTO’s recommendation of lowering the threshold. The New Hampshire DOT argued that the general public and elected officials currently have a good understanding of the classification of structurally deficient and changing the definition would cause confusion. Additionally, New Hampshire DOT expressed that such a change would result in having ‘‘many thousands fewer ‘‘Structurally Deficient’’ bridges, which also implies that there are fewer bridges E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5950 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations that need to be replaced or substantially rehabilitated.’’ The Missouri DOT recommended not using element level data as it ‘‘is cumbersome and results in a large amount of data, which is not meaningful and is complicated to convert to a Good, Fair, or Poor condition rating.’’ The Georgia DOT requested clarification on whether the NHPP penalty provision is based on the classification of structurally deficient or the bridge performance measure of Poor. The AASHTO comment also included a suggestion, which four State DOTs supported (Connecticut, Iowa, New Jersey, and New York), that FHWA should note in the final rule that the use of current NBI data for calculating bridge performance measures and classifying bridges on the NHS as structurally deficient is temporary and that there is a transition plan to use element level bridge data. The New York City DOT similarly commented that the ‘‘proposed performance measures are obsolete on arrival’’ as ‘‘FHWA is adopting the AASHTO element level inspection with ratings 1–4.’’ The comment also stated that the ‘‘The AASHTO system, while element—level is not span—specific. Thus, even if updated to element level inspections, NBI will not reflect the complexity of the multi-span bridges.’’ As previously discussed, FHWA revised the definition and methodology for the classification of structurally deficient so that it is the same calculation used for classifying bridges as in Poor condition. Although element level bridge data is now being reported to the NBI, the analysis and development as to how this data could be used to calculate the proposed bridge performance measures and classify bridges on the NHS as structurally deficient needs to be conducted and completed. Once completed, element level bridge data, and any other pertinent bridge information or metric that provides an improved indicator for bridge condition, may be considered in revising this regulation in the future. Additionally, it is anticipated that element level data for all of the bridges on the NHS will not be in the NBI until 2019 due to the nature of inspection intervals, which can be up to 48 months. Therefore, the current NBI, with its extensive historical data sets and availability, is the most appropriate metric for assessing the condition of bridges on the NHS and classifying them as Structurally Deficient. Four State DOTs (Alabama, Maryland, Minnesota, and Missouri) supported the use of the current NBI Items instead of element level bridge data. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 The Colorado DOT asked whether the area of approach slabs will be included in the calculation of a bridge’s deck area. The deck area of bridge will be calculated as described in section 490.411. The calculation does not include the area of approach slabs. The Georgia DOT commented that the March 15 submission date for the most current NBI data on highway bridges to FHWA would result in changes to business practices and require additional resources. The Virginia DOT recommended that the NBI data submittal date remain as April 1 of each year as currently established as it allows for all State bridges inspected in the previous year to be entered in the data base within (and is consistent with) the 90-day period established by 23 CFR 650.315(b) and (c) for Structure Inventory and Appraisal data on State bridges. The FHWA retains the March 15 submission date. Reporting by March 15 is needed in order to administer the NHS bridge minimum condition provision and issue any penalties by the next fiscal year. Discussion of Section 490.413 Penalties for Not Maintaining Bridge Condition To implement the penalty for not maintaining the condition of NHS bridges under the NHPP, FHWA incorporated the minimum condition level for bridges on the NHS established by 23 U.S.C. 119(f)(2). The penalty is as follows: If FHWA determines for the 3year period preceding the date of the determination, that more than 10.0 percent of the total deck area of bridges in the State on the NHS is located on bridges that have been classified as Structurally Deficient, then during the fiscal year following the determination, the State DOT shall obligate and set aside in an amount equal to 50 percent of funds apportioned to such State for fiscal year 2009 to carry out 23 U.S.C. 144 (as in effect the day before enactment of MAP–21) from amounts apportioned to a State for a fiscal year under 23 U.S.C. 104(b)(1) only for eligible projects on bridges on the NHS. The set-aside and obligation requirement shall remain in effect for each subsequent fiscal year until such time as less than 10 percent of the total deck area of bridges in the State on the NHS is located on bridges that have been classified as Structurally Deficient as determined by FHWA. The ASCE, a private citizen (Nicholas Cazares), and Missouri DOT expressed support for this section. The FHWA received various comments regarding the statutory provisions under the NHPP for the PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 penalty of not maintaining the condition of NHS bridges. The NYSAMPO and the State DOTs of Rhode Island and Texas argued that the implementation of a penalty to maintain a minimum condition is inconsistent with the principles of asset management. They argued that the penalty would promote a ‘‘worst-first’’ philosophy, delay the achievement of a state of good repair, and distort a State DOT’s ability to properly invest. Additionally, the New York DOT suggested eliminating the penalty. The Connecticut DOT argued that the 10 percent threshold and 50 percent formula amount for the structurally deficient classification and the set-aside are arbitrary. They commented that the penalty provisions appear ‘‘to have no basis in engineering principles or generally accepted asset management practices.’’ Similarly, ASCE endorsed a goal of 8 percent instead of 10 percent. The Oregon and Texas DOTs suggested an alternative to the set-aside penalty. They suggested that a State DOT submit to FHWA an investment plan to reduce the percentage of deck area of bridges on the NHS classified as structurally deficient. The SCAG suggested that the penalty provisions should not be implemented without the apportionment of additional funds to locals because the penalty imposed on a State DOT would in turn reduce the availability of Federal funds for locals. The FHWA essentially incorporated the minimum condition level for bridges on the NHS into the final rule consistent with 23 U.S.C. 119(f)(2). The MAP–21 did not provide FHWA the authority to eliminate the penalty provisions or change the threshold for structurally deficient or the set-aside amount. Three State DOTs (Colorado, Connecticut, and New York) and AASHTO argued that October 1, 2016, the initial date of determination of compliance with the minimum condition requirements specified in 23 U.S.C. 119(f)(2), is ‘‘too soon’’ and ‘‘State DOTs will have no time to assess their current situation and then implement reasonable projects to attempt to affect their meeting the 10 percent threshold.’’ The MAP–21 and 23 U.S.C. 119(f)(2) have been in effect since July 6, 2012. The FHWA provided guidance ahead of the NPRM on the provisions of 23 U.S.C. 119(f)(2) and its implementation on September 25, 2012. In implementing the 23 U.S.C. 119(f)(2) provisions, the NPRM proposed a definition and computation for the classification of structurally deficient that was unchanged from the programmatic term that was used for E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations over 30 years to administer the Highway Bridge Program. Bridge owners have been aware and knowledgeable of this well-established classification of structurally deficient, which was one of three statuses used to determine eligibility and apportion funds to State DOTs from the Highway Bridge Program. The initial date of determination proposed in the NPRM provides more than 3 years for owners of NHS bridges to assess the condition of their bridges and implement projects in response to a possible penalty. This was based on data Federal agencies, State DOTs, and tribal governments were already collecting and submitting to FHWA for inclusion into the NBI and for a classification that has been wellknown for decades. However, FHWA revised NPRM implementing the statutory provisions of 23 U.S.C. 119(f)(2) in response to the comments. The revisions were also made due to the revisions to the definition and computation of the classification of structurally deficient and the new methods of calculation for the deck area of culverts and border bridges. In sections 490.405, 490.411(b), and 490.411(c), FHWA provides a transition period for implementing the statutory provisions under the NHPP for the penalty of not maintaining the condition of NHS bridges. This transition period provides State DOTs and MPOs additional time to adjust to the revised definition and computation for the classification of structurally deficient and the new calculations for deck area of culverts and border bridges. Initially, the statutory provisions will be implemented using the historical definition and method of determination for the classification of structurally deficient as used under the Highway Bridge Program, as proposed in the NPRM. Beginning in calendar year 2018 (i.e., the NBI submittal for March 15, 2018), the statutory provisions will be implemented with the revised definition and computation for the classification of structurally deficient and the new methods of calculations for the deck area of culverts and border bridges. The Mississippi and North Dakota DOTs argued that States should not be responsible for assets that are beyond their control and therefore not incur any penalties that may be due to those assets’ conditions. As discussed previously, FHWA recognizes that there is a limit to the direct impact State DOTs and the MPOs can have on performance outcomes within State and the metropolitan planning area, respectively. However, there is no such limit on the use of NHPP funds for any highway bridge that VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 is on the NHS. Recipients of NHPP apportionments (i.e., State DOTs) can provide other owners of bridges on the NHS with NHPP funds (and Surface Transportation Block Grant Program funds) to improve the condition of bridges. Therefore, FHWA encourages State DOTs to consult and coordinate with relevant entities (e.g., Federal land Management agencies, MPOs, local transportation agencies, and tribal governments) as they report performance data and establish targets. This will allow the State DOTs to better assess condition of bridges on the NHS and better identify and consider factors outside of their direct control that could impact future condition/performance. (See the previous discussion of responsibility for the reporting of data, establishment of targets, asset condition, and managing of assets that are beyond the control of State DOTs and MPOs and the discussion of ownership in the discussion section for section 490.105(d).) The FHWA retains the language in section 490.413 as the statutory language in 23 U.S.C. 119 clearly identifies State DOT’s apportionment under 23 U.S.C. 104(b)(1) when implementing the penalty. Because the statutory language does not provide that the terms ‘‘National Highway System’’ or ‘‘States,’’ as used in this provision, mean anything different than the terms as defined in 23 U.S.C. 101(a)(15) and 23 U.S.C. 101(a)(25). The Missouri DOT requested clarification on the 3-yearperiod preceding the date of the determination. The determination of compliance with the minimum condition requirements specified in 23 U.S.C. 119(f)(2) would be carried out by FHWA for fiscal year 2017 and annually thereafter. The timing is based on an assessment of minimum condition compliance of NBI data submitted in 2014, 2015, and 2016. If for each of those years the percentage deck area of bridges on the NHS classified as structurally deficient is greater than 10.0 (e.g., 12.5, 11.3, and 10.5), then the penalty would be assessed for fiscal year 2017 and annually thereafter until the percentage is less than 10.0. VII. Rulemaking Analyses and Notices The FHWA considered all comments received before the close of business on the extended comment closing date indicated above. The comments are available for examination in the docket (FHWA–2013–0053) at www.regulations.gov. The FHWA also considered comments received after the comment closing date to the extent practicable. PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 5951 Responses to Public Comments on the NPRM’s Regulatory Impact Analysis The FHWA carefully considered the comments related to: (1) Underestimated costs; (2) alternate cost estimates; (3) the cost for processing additional cracking data and maintaining a data quality management program; (4) the cost of IRI-only data collection on the non-Interstate NHS; (5) the cost of historical pavement condition performance management practices; (6) estimating the cost of establishing performance targets with incomplete knowledge about the availability of tools; (7) understated benefits; (8) the need for a quantitative analysis; (9) unfunded mandates; (10) Americans with Disabilities Act (ADA) issues; and (11) right-of-way (ROW) issues. The FHWA’s responses to these comments are discussed below. Agile Assets Corporation, NYMTC, TEMPO, Transportation for America, and the State DOTs of Michigan, Mississippi, North Carolina, and Oregon commented that FHWA may have underestimated the costs of the proposed rule. The FHWA reviewed the process used to estimate costs. To develop estimates of the costs of the proposed rule, FHWA interviewed Federal, State, and local practitioners and SMEs. The FHWA researched existing literature on bridge and pavement condition, and reviewed Federal and State agency Web sites for information on current bridge and pavement condition data collection and reporting practices. In the final rule, FHWA retains the NPRM’s methodology and assumptions, which are listed in Section 3 and described in detail in Section 4 of the final rule’s RIA. The original and updated RIA can be found in the docket for this rulemaking. The estimated level of effort and costs to comply with the rule represent nationwide estimates of current practices as derived from interviews with Federal, State, and local practitioners. Therefore, these estimates represent average costs for a State DOT. The FHWA understands that the actual costs incurred may be higher for some State DOTs and MPOs, and lower for others. The Michigan and Oregon DOTs provided alternative estimates for the costs they argue were underestimated in the NPRM. Oregon DOT commented that one additional full-time employee would be needed for pavement data collection as a result of the rule, at an incremental cost of $150,000 per year. Michigan DOT argued that data collection costs would increase by $100,000 per year. Michigan DOT also E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5952 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations asserted that processing additional cracking data and maintaining a data quality management program would potentially double current costs but did not provide an estimate. The FHWA compared its estimated costs from the NPRM to the estimates provided by the commenters. The FHWA estimated that the cost to collect data on the Interstate and non-Interstate would be approximately $97,000 per State DOT per year (see Sections 4.2.1 and 4.2.3 of the final RIA). After additional consultation with SMEs, FHWA revised the final rule’s RIA to a cost of $150,000 per State DOT per year for data collection as recommended by commenters and SMEs. In response to Michigan DOT’s comments on the costs for processing additional cracking data and maintaining a data quality management program, FHWA reviewed the process used to estimate the cost. In the NPRM, FHWA estimated that a State DOT would incur costs of approximately $37,000 per year for a new cracking data collection program (see Sections 4.2.2 and 4.2.4 of the RIA). In addition, FHWA estimated new quality management programs would cost a State DOT approximately $62,000 per year, while upgrading an existing program would cost approximately $31,000 per year (see Section 4.2.7 of the RIA). In the final rule RIA, FHWA maintains these assumptions. Mississippi DOT commented that the NPRM RIA incorrectly assumed that the costs of IRI-only data collection on the non-Interstate NHS would be offset by efficiencies in other areas. The FHWA reexamined and confirmed the estimated costs of IRI-only data collection on the non-Interstate NHS as presented in Section 4.2.3 of the RIA. Therefore, FHWA did not revise this portion of the RIA for the final rule. AgileAssets Corporation commented that agencies would continue to use their historical pavement condition performance management practices in addition to new requirements in the NPRM. They also argued that State DOTs would incur additional costs associated with historical pavement condition performance management practices. The FHWA reviewed the analytical approach used in the RIA. The FHWA prepared the NPRM’s RIA in accordance with the guidance provided in OMB Circular A–4, ‘‘Regulatory Analysis.’’ As such, the analysis accounts for the incremental costs of the rule; that is, those costs incurred above and beyond the costs in the absence of the rule. As discussed in Section 4.1.2 of the NPRM’s RIA, FHWA estimated that State DOTs would incur $53 VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 million for reporting on the new performance measures. Therefore, the RIA costs are maintained for this final rule. Michigan DOT commented that estimating the cost to establish performance targets with incomplete knowledge about the availability of analytical tools to determine achievable levels of performance would be costly to develop if State DOTs did not already have them. The FHWA notes that the requirements of this performance measure rule do not explicitly require tools to analyze alternative investment strategies and decisionmaking.109 Therefore FHWA did not account for them. A private citizen (Nicholas Cazares) commented that benefits were understated in the NPRM’s RIA, as it does not account for the benefits to local economies that will be derived from improvements in transportation. Specifically, Mr. Cazares cited faster commutes due to widened roads or the construction of new bridges (e.g., reduced travel delays and CO2 emissions). ‘‘The California DOT noted the benefits of pavement preservation efforts. The commenter remarked that preservation efforts extend the life of assets in Good and Fair condition and would reduce the number of pavements in the Poor condition category.’’ The FHWA disagrees that the benefits were understated in the NPRM’s RIA. The benefits were estimated based on a break-even analysis. The nonquantifiable benefits derived from the implementation of the rule could include improved pavement and bridge conditions, which would result in improved traffic flow. In the benefits analysis for the NPRM, FHWA also acknowledged that there may be many non-quantitative benefits derived from the implementation of the rule, such as time savings that would result from trucks no longer having to be rerouted from bridges with severe weight restrictions (see Section 5 of the RIA) and reduced traffic and emissions in the RIA for the third performance measure rulemaking (docket number FHWA– 2013–0054). The FHWA reviewed the approach taken in the NPRM’s RIA. In the NPRM, FHWA prepared break-even analyses to quantify the benefits of the rulemaking. The break-even analyses provided estimates of the thresholds that must be reached in order for the rule to be cost109 For more discussion on planned activities, please see the section ‘‘Suggestions for how FHWA can best assist States and MPOs to maximize opportunities for successful implementation of the proposed performance measures.’’ PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 beneficial, an approach endorsed by OMB Circular A–4. The FHWA determined that this approach, rather than a quantifiable approach, is appropriate for evaluating the costs of the rule. For more information on the break-even analyses, agencies should refer to the benefits discussion later in this section, or Section 5 of the RIA document on this docket. The Mississippi DOT and an anonymous commenter questioned the unfunded mandates aspect of the rulemaking. Specifically, Mississippi DOT disagreed with FHWA’s determination that the rule was not an unfunded mandate. In the final rule, FHWA did not change its determination that the rule is not an unfunded mandate. According to the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4, 109 Stat. 48), a rule would contain an unfunded mandate if any of its requirements result in expenditures of $151 million or more in any 1 year for either State, local, or tribal governments, in the aggregate, or by the private sector (See the discussion on UMRA in Section VII, Rulemaking Analyses and Notices, of this document). The costs in the NPRM did not meet this threshold. An anonymous citizen argued that repaving and certain pavement maintenance activities would require bringing facilities in conformance with the ADA. The commenter argued that since the ADA, ROW, and facility upgrade costs were omitted from the cost analysis, the costs of the rule were underestimated. The commenter also warned that upgrades to bring the pavements into conformance with ADA, and the related costs, may result in the taking of private property under Executive Order (E.O.) 12630 and may violate UMRA. The FHWA notes that the NPRM required agencies to report on the condition of pavement. The methods used for pavement maintenance are not expected to change as a result of the rule. Therefore, costs related to ADA or ROW issues, such as those called for in 23 CFR 625.4 and 49 CFR 37.9, are outside the scope of the rule, and would not have taking implications under E.O. 12630 or violate UMRA. Furthermore, current practices regarding upgrading facilities are routinely subject to efficiency determinations that qualify for exemptions on a case-by-case basis, as described in 23 CFR 625.3. The current requirements for upgrading facilities or exception practices are not impacted by the implementation of this rule. Executive Order 12866 (Regulatory Planning and Review), Executive Order E:\FR\FM\18JAR5.SGM 18JAR5 5953 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations 13563 (Improving Regulation and Regulatory Review), and Departments of Transportation Regulatory Policies and Procedures. The FHWA determined that this final rule constitutes an economically significant regulatory action within the meaning of E.O. 12866 and DOT regulatory policies and procedures. This action complies with E.O.s 12866 and 13563. This action is considered ‘‘economically significant’’ because this rulemaking will result in the transformation of the Federal-aid highway program so that the program focuses on national goals, provides for a greater level of accountability and transparency, and provides a means for the most efficient investment of Federal transportation funds. The FHWA completed an RIA in support of the final rule. The RIA estimated the economic impact, in terms of costs and benefits, on Federal, State, and local governments and private entities regulated under this action, as required by E.O.s 12866 and 13563. However, the RIA did not attempt to directly quantify the changes from the improved decisionmaking. The economic impacts are measured on an incremental basis, relative to current pavement and bridge condition reporting practices. The RIA identified the estimated costs and benefits resulting from the final rule in order to inform policymakers and the public of its relative value. The complete RIA may be accessed from the docket (docket number FHWA–2013– 0053). The cornerstone of MAP–21’s highway program transformation is the transition to a performance-based program. The MAP–21 requires State DOTs to invest resources in projects to meet or make significant progress toward meeting performance targets that will make progress toward national goals. The national performance goal area established for infrastructure condition is to maintain the highway infrastructure asset system in a state of good repair. In order to carry out this mandate, MAP–21 requires FHWA to promulgate a rule to establish pavement and bridge condition performance measures and standards. As required by MAP–21, the final rule identifies the following pavement and bridge performance measures for which State DOTs and MPOs must collect and report data, establish targets for performance, and make progress toward achievement of targets: 1. Percentage of lane miles of the Interstate System in Good condition; 2. Percentage of lane miles of the Interstate System in Poor condition; 3. Percentage of lane miles of the nonInterstate NHS in Good condition; 4. Percentage of lane-miles of the nonInterstate NHS in Poor condition; 5. Percentage of NHS bridges classified as in Good condition; and 6. Percentage of NHS bridges classified as in Poor condition. Estimated Cost of the Final Rule To estimate costs, FHWA assessed the level of effort, expressed in labor hours and categories, and the capital needed to comply with each component of the final rule. Level of effort by labor category is monetized with loaded wage rates to estimate total costs. Table 4 displays the total cost of the final rule for the 10-year study period (2016–2025). Total costs are estimated to be $156.0 million undiscounted, $120.1 million discounted at 7 percent, and $138.5 million discounted at 3 percent. The costs in the table assume that approximately half of the estimated 409 MPOs will establish their own targets, and the rest would adopt State DOT targets. It is assumed that State DOTs and MPOs serving Transportation Management Areas (TMA) 110 will use staff to establish performance targets. Conversely, it is assumed that MPOs not serving a TMA will agree to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT targets. Therefore, they will not incur any incremental costs. There are currently an estimated 201 MPOs serving TMAs.111 The FHWA made this assumption because larger MPOs may have more resources available to develop performance targets. The FHWA believes that this is a conservative estimate, as larger MPOs may elect not to establish their own targets for a variety of reasons, including resource availability. TABLE 4—TOTAL COST OF THE FINAL RULE 10-yr total cost Cost components mstockstill on DSK3G9T082PROD with RULES5 Undiscounted Section 490.105–109—General Information, Target Establishment, Reporting on Progress, and Making Significant Progress ............................................................................................. Coordination between State DOTs and MPOs ........................................................................... Establish and Update Performance Targets ............................................................................... Assess Significant Progress Toward Achieving Performance Targets ....................................... Reporting on Performance Targets Progress ............................................................................. Section 490.309—Data Requirements—Interstate IRI, Rutting, and Faulting ............................ Tracking costs: Establish measurement for rutting ..................................................................... Tracking costs: Establish measurement for faulting ................................................................... Data processing costs: Additional rutting data ............................................................................ Data processing costs: Additional faulting data .......................................................................... Section 490.309—Data Requirements—Interstate Cracking ...................................................... Fully Automated State DOTs: Additional Data Quality Control Costs ........................................ Semi-Automated State DOTs: Additional Data Processing & Quality Control Costs ................. Manual & State DOTs not currently collecting: Training costs to adopt automated methods .... Manual & State DOTs not currently collecting: Data quality control costs ................................. Section 490.309—Data Requirements—Non-Interstate NHS IRI, Rutting, and Faulting ........... Data Collection costs: Increase IRI Measurement to Cover 100 percent of non-Interstate NHS miles ................................................................................................................................ Data processing costs: Additional rutting and faulting data collected ........................................ 110 A TMA is an urbanized area having a population of over 200,000 or otherwise requested by the Governor and the MPO and officially designated by FHWA or FTA. 23 U.S.C. 134(k). 111 The FHWA updated the estimated total number of MPOs to 409, which is less than the 420 VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 MPOs used at the time that the NPRM was published. The estimated number of MPOs serving TMAs is now 201, less than the estimate of 210 in the NPRM. At the time the RIA was prepared for the NPRM, FHWA assumed that the 36 new urbanized areas resulting from the 2010 Census PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 7% 3% $74,095,514 867,367 31,750,717 40,693,075 784,356 5,108,641 523,963 1,047,926 1,964,862 1,571,890 16,259,029 1,309,908 4,286,328 1,820,915 8,841,879 6,203,492 $51,535,918 867,367 22,897,706 27,281,269 489,576 3,839,263 393,771 787,541 1,476,639 1,181,312 12,671,493 984,426 3,221,275 1,820,915 6,644,877 4,473,781 $63,073,229 867,367 27,448,308 34,119,523 638,032 4,488,508 460,360 920,720 1,726,349 1,381,079 14,506,400 1,150,899 3,766,014 1,820,915 7,768,571 5,362,882 618,044 681,152 445,716 491,227 534,296 588,852 would have MPOs designated for them. In reality, some of the newly designated urbanized areas merged with existing MPOs, resulting in the designation of fewer new MPOs than expected. E:\FR\FM\18JAR5.SGM 18JAR5 5954 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations TABLE 4—TOTAL COST OF THE FINAL RULE—Continued 10-yr total cost Cost components Undiscounted 7% 3% Tracking costs: Establish measurement for rutting ..................................................................... Tracking costs: Establish measurement for faulting ................................................................... Section 490.309—Data Requirements—Non-Interstate NHS Cracking ..................................... Additional data quality control costs for new data collection ...................................................... Section 490.309—Data Requirements—Capital Costs ............................................................... Profiler .......................................................................................................................................... Faulting Software ......................................................................................................................... Cracking Video Equipment and Software Purchase ................................................................... Section 490.313—Calculation of performance management measures ..................................... Reprogramming of software to allow Performance Calculations ................................................ FHWA’s Management of Data Submissions ............................................................................... Filtering out Bridge Pavement from Pavement Data .................................................................. Section 490.319—Other Requirements ....................................................................................... Develop a Quality Management Program ................................................................................... Run New Quality Management Program .................................................................................... Improve Quality Management Program ...................................................................................... Section 490.407—Calculation of bridge performance measures ................................................ Update Software to generate Good/Fair/Poor condition ............................................................. FHWA’s Management of Data Submissions ............................................................................... 2,724,609 2,179,687 4,322,696 4,322,696 16,600,000 9,100,000 1,000,000 6,500,000 8,482,450 6,517,588 261,982 1,702,880 17,074,492 45,688 3,274,770 13,754,034 6,883,091 6,517,588 365,503 1,964,910 1,571,928 3,117,405 3,117,405 15,891,841 8,391,841 1,000,000 6,500,000 7,994,228 6,517,588 196,885 1,279,754 12,843,230 45,688 2,461,066 10,336,476 6,792,272 6,517,588 274,684 2,355,408 1,884,327 3,736,946 3,736,946 16,254,041 8,754,041 1,000,000 6,500,000 8,243,938 6,517,588 230,180 1,496,169 15,007,381 45,688 2,877,249 12,084,444 6,838,723 6,517,588 321,135 Total Cost of Final Rule ....................................................................................................... 155,979,715 120,109,737 138,462,355 mstockstill on DSK3G9T082PROD with RULES5 The final rule’s 10-year undiscounted cost ($156.0 million in 2014 dollars) decreased relative to the proposed rule ($196.4 million in 2012 dollars). As discussed below, FHWA made a number of changes that affected cost. General Updates In the final rule RIA, FHWA updated all costs to 2014 dollars from the 2012 dollars used in the proposed rule RIA. In addition, FHWA updated labor costs to reflect current BLS data. These general updates increased the estimated cost of the final rule relative to the proposed rule. The FHWA deferred the effective date from 2015 to 2016. All costs that related to activities that were scheduled to begin in 2015 will now begin in 2016. Furthermore, the start dates for the performance period, reporting cycles, and phase-in requirements will be delayed by 2 years, with the first performance period beginning in 2018 rather than 2016. The data requirements for non-Interstate NHS IRI, rutting, faulting, and cracking will be deferred 1 year to 2019. The deferment decreased the number of years State DOTs and MPOs will incur costs within the 10year analysis period. Therefore, the estimated costs that State DOTs and MPOs will incur to comply with the requirements of this final rule have decreased relative to the proposed rule. The FHWA also updated the estimated total number of MPOs to 409, which is less than the 420 MPOs used at the time that the NPRM was published. The estimated number of MPOs serving TMAs is now 201, less VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 than the estimate of 210 in the NPRM. The number of non-TMA MPOs is 208, less than the estimate of 210 in the NPRM. At the time the RIA was prepared for the NPRM, FHWA assumed that the 36 new urbanized areas resulting from the 2010 Census would have MPOs designated for them. However, some of these newly designated urbanized areas merged with existing MPOs, resulting in the designation of fewer new MPOs than expected. The FHWA estimates that, on average, only the 201 larger MPOs serving TMAs will establish their own quantifiable performance targets. The FHWA also estimates that the 208 smaller MPOs serving non-TMAs will choose to agree to plan and program projects so that they contribute toward the accomplishment of State DOT pavement and bridge condition-related performance targets. Therefore, only the 201 larger MPOs serving TMAs will incur costs to reprogram and upgrade their software to be able to perform calculations of the performance measures. The reduction in the number of MPOs decreased the estimated costs to comply with the requirements of the final rule relative to the proposed rule. of benefits, Fugro Roadware, a firm that manufactures and operates equipment that is used to measure the pavement conditions on State and municipal networks, asserted that the ‘‘entire pavement and traffic assessment management process has been shown to improve the quality of road networks without an overall increase of funding . . .’’ Need for Quantitative Analysis A number of State DOTs and MPOs took issue with the assumptions and levels of cost analysis associated with the requirements of the NPRM reflected in the benefit-cost analysis.112 In terms The Colorado DOT argued that FHWA did not adequately justify its statement that benefits would outweigh the costs. They urged FHWA to conduct a quantitative analysis to support its claim. This rulemaking constitutes a change to Federal regulations and was therefore subjected to an economic analyses according to E.O. 12866, (Regulatory Planning and Review) (58 FR 51735), as supplemented by E.O. 13563 (Improving Regulation and Regulatory Review) (76 FR 3821). These E.O.s direct each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. The FHWA completed and included an RIA in support of this final rule on the establishment of national performance management measures for pavement and bridge conditions. The RIA summary estimates the economic impact, in terms of costs and benefits, on Federal, State, and local governments and private entities regulated under this 112 TEMPO, Atlanta Regional Commission, Transportation for America, and State DOTs of Colorado, North Carolina, Mississippi, Oklahoma, Michigan, Georgia, Louisiana, and Oregon. Comments on Costs and Benefits in the Regulatory Impact Analysis PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 5955 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations action, as required by E.O.s 12866 and 13563. The economic impacts are measured on an incremental basis, relative to current highway infrastructure condition performance reporting practices. To estimate costs for the rule, FHWA assessed the level of effort, expressed in labor hours and categories, and the capital investments needed to comply with each component of the rule. Level of effort by labor category is monetized with loaded wage rates to estimate total costs. These estimates were developed with input from State and MPO interviews. This document presents the summary of the analysis. The complete quantitative analysis can be found in the docket. Section 490.105 Through 109 General Information, Target Establishment, Reporting on Progress, and Making Significant Progress The RIA estimates the cost of coordination between State DOTs and MPOs, establishing and updating performance targets, reporting on performance targets progress, and assessing significant progress toward achieving performance targets under sections 490.105 through 490.109. The cost of these sections decreased from $93.3 million for the proposed rule to $74.1 million for the final rule. In addition to the general updates described above, the decrease in cost is partially offset by the additional costs of coordinating the establishment of targets in accordance with 23 CFR part 450. Section 490.309 Data Requirements: Interstate IRI, Rutting, and Faulting The RIA estimates the cost of data requirements for Interstate IRI, rutting, and faulting under section 490.309. The cost of this section decreased from $30.7 million for the proposed rule to $5.1 million for the final rule. In addition to the general updates described above, the decrease in costs is attributable to FHWA’s response to public comments on the burden associated with pavement data collection requirements. In response to public comment, FHWA relaxed the proposed requirement that would have required State DOTs to collect IRI data both directions. The final rule requires IRI data collection in at least one direction, which results in lower data collection costs. Break-Even Analysis Currently, State DOTs differ in the way they measure the condition of their pavement. The FHWA does not believe their current methods are inadequate, but they are inconsistent. The differences hinder accurate analysis of infrastructure conditions at the national level. The final rule establishes uniform condition measures for the purpose of carrying out the NHPP to assess condition of pavements on the NHS (excluding the Interstate System), pavements on the Interstate System, and bridges carrying the NHS, which includes on- and off-ramps, connected to the NHS. In addition, the final rule establishes processes that: (1) State DOTs and MPOs use to report measures and establish performance targets and (2) FHWA uses to assess progress that State DOTs have made toward achieving targets. The FHWA expects that the final rule will result in certain benefits. The final rule will yield greater accountability because the MAP–21-mandated reporting will increase visibility and transparency. In addition, the rule will help focus the Federal-aid highway program on achieving balanced performance outcomes. These benefits resulting from the rule (i.e., greater accountability and greater focus on making progress toward the national goal for infrastructure condition) will lead to improved pavement and bridge conditions. The benefits resulting from performance measurement, while real and substantial, are difficult to quantify. Therefore, FHWA quantified these benefits of the rule by performing breakeven analyses, as described in OMB Circular A–4. A break-even analysis calculates the threshold a specific variable must achieve in order for benefits to equal costs, holding every other variable in the analysis constant. For pavements and bridges, FHWA focused its break-even analyses on VOC savings because users typically garner the greatest concentration of benefits from transportation projects. The FHWA estimated the number of road miles of deficient pavement that will have to be improved and the number of posted bridges that will have to be avoided in order for the benefits of the rule to justify the costs. Table 5 presents the results from the pavement break-even analysis. The results represent the savings in VOC to automobile and truck drivers from pavement conditions that are improved from Poor to Good. The analysis shows that the rule will need to result in the net improvement of approximately 71 miles of pavement (i.e., to Good condition) per year, or 710 miles over 10 years, that will otherwise not have been improved without the rule.113 The annual break-even point represents approximately 0.3 percent of the NHS miles currently estimated to be in Poor condition. Based on recent trends in improving road condition, FHWA believes 71 miles of pavement per year or 710 miles over 10 years as a result of this rule is achievable. TABLE 5—BREAK-EVEN IMPROVEMENT OF PAVEMENT CONDITIONS [Improved from poor] Current NHS miles estimated to be in poor condition Approximate number of annual poor NHS miles needing improvement from poor Annual poor VMT (total VMT * 11.8%) a b c=a÷b d e=c*d 562,187,982 ..................................................................... mstockstill on DSK3G9T082PROD with RULES5 Annual improved VMT from poor needed Percent of poor VMT needing improvement 193,346,999,390 0.29% 24,386 71 * Please refer to the Summary Report for details on the methodology used in the analysis. 113 The estimated annual break-even point accounts for the benefit in the year the improvement is made. Although the benefit from improved pavement will extend over multiple VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 years, the benefit declines year-to-year as the condition of the pavement declines. So, for the purposes of the analysis, we assume that 71 miles of poor pavement will need to be improved per year PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 in order for the rule to break even (rather than 71 miles total over the 10-year period). E:\FR\FM\18JAR5.SGM 18JAR5 5956 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations bridge postings that need to be avoided in order to make the benefits of the rule justify the cost. The break-even analysis estimates that three separate 1-year long bridge postings need to be avoided over 10 years in order for benefits to justify costs. As a basis for comparison, NBI data indicate that there were approximately 85 year-long NHS bridge postings for trucks in 2012. Over the 10-year period of 2003–2012, the number of NHS bridges posted for trucks declined from Table 6 presents the results from the bridge break-even analysis, which calculates the number of year-long bridge postings that will need to be reduced as a result of the rule in order for the benefits of the bridge condition requirements to justify the costs. The FHWA estimated the average cost per year of a bridge posting in column E. With the undiscounted cost of the bridge requirements and this average cost of a bridge posting, the analysis estimates the number of year-long 145 to 85. Trends in the United States, demonstrated by bridge owners, provide evidence that posted bridges receive priority consideration in work schedules. With the increased performance requirements of the final rule, it is reasonable to assume that, at a minimum, a reduction in the posted load limit of one bridge annually nationwide would be achieved to provide the needed benefit to justify the costs of complying with this rule. TABLE 6—BREAK-EVEN BRIDGE DETOURS Equivalent number of year-long posts that need to be avoided Annual number of year-long posts that need to be avoided e = d * 2,301 ADT * 365.25 f=a÷e g = f ÷ 10 years $16,692,683 3 0.3 Undiscounted 10year cost of bridge rule Average truck user cost per VMT Average distance per detour (miles) Average cost of detour per trucks Average cost per year of each bridge posting a b c d=b×c $1.90 11 $19.86 $43,930,849 * Please refer to the Summary Report for details on the methodology used in the analysis. Relative to the proposed rule, the threshold for the pavement break-even analysis decreased in the final rule. Specifically, the number of NHS miles in Poor condition needing improvement to Fair condition decreased from 435 to 71 in the final rule. The break-even point decreased due to an adjustment to the incremental maintenance and repair cost per VMT, a decrease in the undiscounted 10-year cost of the pavement rule, and an increase in the total VMT that are in Poor condition. The threshold for the bridge breakeven analysis increased in the final rule relative to the proposed rule. Specifically, the number of 1-year long bridge postings that need to be reduced increased from 2 to 3 in the final rule. The break-even point increased due to the following updates to input data: • The average detour for bridges posted with weight limits of at least 40 percent below the legal load decreased from 20 miles to 10.45 miles, and • The percentage of trucks of total average annual daily traffic on posted bridges decreased from 12.6 percent to 9.7 percent. mstockstill on DSK3G9T082PROD with RULES5 Regulatory Flexibility Act To comply with the Regulatory Flexibility Act (Pub. L. 96–354, 5 U.S.C. 601–612), FHWA evaluated the effects of this action and determined that it would not have a significant economic impact on a substantial number of small entities. The rule affects State governments and MPOs. State DOTs are not included in the definition of small entity in 5 U.S.C. 601. VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 The MPOs are considered governmental jurisdictions. The small entity standard for these entities is whether the affected MPOs serve less than 50,000 people. The MPOs impacted by this rule serve urbanized areas with populations of more than 50,000. Therefore, MPOs that incur economic impacts under this rule do not meet the definition of a small entity. The FHWA certifies that this regulatory action would not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 The FHWA determined that this final rule would not impose unfunded mandates as defined by the UMRA. This rule does not contain a Federal mandate that may result in expenditures of $151 million or more in any 1 year (2 U.S.C. 1532) for either State, local, and tribal governments in the aggregate, or by the private sector. Additionally, the definition of ‘‘Federal mandate’’ in UMRA excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility. Executive Order 13132 (Federalism Assessment) The FHWA analyzed this final rule in accordance with the principles and criteria contained in E.O. 13132. The FHWA determined that this action would not have sufficient federalism PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rule would not preempt any State law or regulation or affect the States’ ability to discharge traditional State governmental functions. Executive Order 12372 (Intergovernmental Review) The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. This E.O. applies because State and local governments would be directly affected by the proposed regulation, which is a condition on Federal-aid highway funding. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205 (Highway Planning and Construction) for further information. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from OMB prior to conducting or sponsoring a collection of information. The FHWA analyzed this final rule and determined that it contains collection of information requirements for the purposes of the PRA. The final rule provides definitions and outlines processes for bridge and pavement performance measures and reporting. Some burdens in the rule will be realized in other reporting areas as described below. The PRA activities are already covered by existing OMB clearances. The reference numbers for E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations those clearances are: HPMS information collection, OMB No. 2125–0028 with an expiration of May 31, 2019; and NBI, OMB No. 2125–0501 with an expiration date of April 30, 2018. Any increase in PRA burdens caused by MAP–21 in these areas was addressed in PRA approval requests associated with those rulemakings. This rule requires the submission of biennial performance reports. The FHWA analyzed this rule under the PRA and has determined the following: Respondents: Approximately 684 applicants consisting of State DOTs, MPOs, Washington, DC, and Puerto Rico. Frequency: Biennially. Estimated Average Burden per Response: Approximately 416 hours to complete and submit the report. Estimated Total Annual Burden Hours: Approximately 54,496 hours annually. National Environmental Policy Act The FHWA analyzed this action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and determined that it would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20). Executive Order 12630 (Taking of Private Property) The FHWA analyzed this rule under E.O. 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights). The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under E.O. 12630. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden. mstockstill on DSK3G9T082PROD with RULES5 Executive Order 13045 (Protection of Children) Executive Order 13175 (Tribal Consultation) The FHWA analyzed this action under E.O. 13175. The FHWA believes 22:01 Jan 17, 2017 Jkt 241001 Executive Order 12898 (Environmental Justice) The E.O. 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise any environmental justice issues. Executive Order 13211 (Energy Effects) The FHWA analyzed this action under E.O. 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). The FHWA determined that this is not a significant energy action under E.O. 13211 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Regulation Identifier Number A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects in 23 CFR Part 490 The FHWA analyzed this rule under E.O. 13045 (Protection of Children from Environmental Health Risks and Safety Risks). The FHWA certifies that this action would not cause an environmental risk to health or safety that might disproportionately affect children. VerDate Sep<11>2014 that the action: (1) Would not have substantial direct effects on one or more Indian tribes; (2) would not impose substantial direct compliance costs on Indian tribal governments; and (3) would not preempt tribal laws. The final rule addresses obligations of Federal funds to State DOTs for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required. Bridges, Highway safety, Highways and roads, Incorporation by reference, and Reporting and recordkeeping requirements. Issued in Washington, DC, on January 6, 2017, under authority delegated in 49 CFR 1.85. Gregory G. Nadeau, Administrator, Federal Highway Administration. In consideration of the foregoing, FHWA amends 23 CFR part 490 as follows: PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 5957 PART 490—NATIONAL PERFORMANCE MANAGEMENT MEASURES 1. The authority citation for part 490 continues to read as follows: ■ Authority: 23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85. ■ 2. Revise subpart A to read as follows: Subpart A—General Information Sec. 490.101 Definitions. 490.103 Data requirements. 490.105 Establishment of performance targets. 490.107 Reporting on performance targets. 490.109 Assessing significant progress toward achieving the performance targets for the National Highway Performance Program. 490.111 Incorporation by reference. Subpart A—General Information § 490.101 Definitions. Unless otherwise specified, the following definitions apply to this part: Bridge as used in this part is defined in § 650.305 of this title, the National Bridge Inspection Standards. Full extent means continuous collection and evaluation of pavement condition data over the entire length of the roadway. Highway Performance Monitoring System (HPMS) is a national level highway information system that includes data on the extent, condition, performance, use, and operating characteristics of the Nation’s highways. Mainline highways means the through travel lanes of any highway. Mainline highways specifically exclude ramps, shoulders, turn lanes, crossovers, rest areas, and other pavement surfaces that are not part of the roadway normally travelled by through traffic. Measure means an expression based on a metric that is used to establish targets and to assess progress toward achieving the established targets (e.g., a measure for flight on-time performance is percent of flights that arrive on time, and a corresponding metric is an arithmetic difference between scheduled and actual arrival time for each flight). Metric means a quantifiable indicator of performance or condition. Metropolitan Planning Area (MPA) as used in this part is defined in § 450.104 of this title, Transportation Planning and Programming Definitions. National Bridge Inventory (NBI) is an FHWA database containing bridge information and inspection data for all highway bridges on public roads, on and off Federal-aid highways, including tribally owned and Federally owned E:\FR\FM\18JAR5.SGM 18JAR5 5958 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations bridges, that are subject to the National Bridge Inspection Standards (NBIS). Non-urbanized area means a single geographic area that comprises all of the areas in the State that are not ‘‘urbanized areas’’ under 23 U.S.C. 101(a)(34). Performance period means a determined time period during which condition/performance is measured and evaluated to: Assess condition/ performance with respect to baseline condition/performance; and track progress toward the achievement of the targets that represent the intended condition/performance level at the midpoint and at the end of that time period. The term ‘‘performance period’’ applies to all proposed measures in this part, except the measures proposed for the Highway Safety Improvement Program (HSIP) in subpart B of this part. Each performance period covers a 4-year duration beginning on a specified date (provided in § 490.105). Target means a quantifiable level of performance or condition, expressed as a value for the measure, to be achieved within a time period required by the Federal Highway Administration (FHWA). mstockstill on DSK3G9T082PROD with RULES5 § 490.103 Data requirements. (a) In general. Unless otherwise noted below, the data requirements in this section applies to the measures identified in subparts C and D of this part. Additional data requirements for specific performance measures are identified in 23 CFR sections— (1) 490.309 for the condition of pavements on the Interstate System; (2) 490.309 for the condition of pavements on the non-Interstate NHS; (3) 490.409 for the condition of bridges on the NHS; (4) [Reserved] (b) Urbanized area data—The State DOTs shall submit urbanized area data, including boundaries of urbanized areas, in accordance with the HPMS Field Manual (incorporated by reference, see § 490.111) for the purpose of the additional targets for urbanized and non-urbanized areas in § 490.105(e). The boundaries of urbanized areas shall be identified based on the most recent U.S. Decennial Census, unless FHWA approves adjustments to the urbanized area as provided by 23 U.S.C. 101(a)(34), and these adjustments are submitted to HPMS, available at the time when the State DOT Baseline Performance Period Report is due to FHWA. (c) [Reserved] (d) National Highway System data. The State DOTs shall document and submit the extent of the NHS in VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 accordance with the HPMS Field Manual. § 490.105 targets. Establishment of performance (a) In general. State departments of transportation (State DOT) shall establish performance targets for all measures specified in paragraph (c) of this section for the respective target scope identified in paragraph (d) of this section with the requirements specified in paragraph (e) of this section, and the Metropolitan Planning Organizations (MPO) shall establish performance targets for all measures specified in paragraph (c) of this section for respective target scope identified in paragraph (d) of this section with the requirements specified in paragraph (f) of this section. (b) Highway Safety Improvement Program measures. State DOTs and MPOs shall establish performance targets for the Highway Safety Improvement Program (HSIP) measures in accordance with § 490.209. (c) Applicable measures. State DOTs and MPOs that include, within their respective geographic boundaries, any portion of the applicable transportation network shall establish performance targets for the performance measures identified in 23 CFR sections— (1) 490.307(a)(1) and 490.307(a)(2) for the condition of pavements on the Interstate System; (2) 490.307(a)(3) and 490.307(a)(4) for the condition of pavements on the National Highway System (NHS) (excluding the Interstate); and (3) 490.407(c)(1) and 490.407(c)(2) for the condition of bridges on the NHS. (d) Target scope. Targets established by the State DOT and MPO shall, regardless of ownership, represent the transportation network, including bridges that cross State borders, that are applicable to the measures as specified in paragraphs (d)(1) and (2) of this section. (1) State DOTs and MPOs shall establish Statewide and metropolitan planning area wide targets, respectively, that represent the condition/ performance of the transportation network that is applicable to the measures, as specified in 23 CFR sections— (i) 490.303 for the condition of pavements on the Interstate System measures specified in §§ 490.307(a)(1) and (a)(2); (ii) 490.303 for the condition of pavements on the National Highway System (NHS) (excluding the Interstate) measures specified in §§ 490.307(a)(3) and (a)(4); and PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 (iii) 490.403 for the condition of bridges on the NHS measures specified in §§ 490.407(c)(1) and (c)(2). (2) [Reserved] (3) For the purpose of target establishment in this section, reporting targets and progress evaluation in § 490.107 and significant progress determination in § 490.109, State DOTs shall declare and describe the urbanized area boundaries within the State boundary in the Baseline Performance Period Report required by § 490.107(b)(1). Any changes in urbanized area boundaries during a performance period would not be accounted for until the following performance period. (e) State DOTs shall establish targets for each of the performance measures identified in paragraph (c) of this section for respective target scope identified in paragraph (d) of this section as follows: (1) Schedule—State DOTs shall establish targets not later than 1 year of the effective date of this rule and for each performance period thereafter, in a manner that allows for the time needed to meet the requirements specified in this section and so that the final targets are submitted to FHWA by the due date provided in § 490.107(b). (2) Coordination. State DOTs shall coordinate with relevant MPOs on the selection of targets in accordance with 23 U.S.C. 135(d)(2)(B)(i)(II) to ensure consistency, to the maximum extent practicable. (3) Additional targets for urbanized and non-urbanized areas. In addition to statewide targets, described in paragraph (d)(1) of this section, State DOTs may, as appropriate, for each statewide target, establish additional targets for portions of the State. (i) A State DOT shall declare and describe in the Baseline Performance Period Report required by § 490.107(b)(1) the boundaries used to establish each additional target. Any changes in boundaries during a performance period would not be accounted for until the following performance period. (ii) State DOTs may select any number and combination of urbanized area boundaries and may also select a nonurbanized area boundary for the establishment of additional targets. (iii) The boundaries used by the State DOT for additional targets shall be contained within the geographic boundary of the State. (iv) State DOTs shall evaluate separately the progress of each additional target and report that progress as required under §§ 490.107(b)(2)(ii)(B) and (b)(3)(ii)(B). E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations (4) Time horizon for targets. State DOTs shall establish targets for a performance period as follows: (i) The performance period will begin on: (A) January 1st of the year in which the Baseline Performance Period Report is due to FHWA and will extend for a duration of 4 years for the measures in paragraphs (c)(1) through (c)(3) of this section; and (B) [Reserved] (ii) The midpoint of a performance period will occur 2 years after the beginning of a performance period described in paragraph (e)(4)(i) of this section. (iii) State DOTs shall establish 2-year targets that reflect the anticipated condition/performance level at the midpoint of each performance period for the measures in paragraphs (c)(1) through (c)(3) of this section. (iv) State DOTs shall establish 4-year targets that reflect the anticipated condition/performance level at the end of each performance period for the measures in paragraphs (c)(1) through (c)(3) of this section. (5) Reporting. State DOTs shall report 2-year targets, 4-year targets, the basis for each established target, progress made toward the achievement of targets, and other requirements to FHWA in accordance with § 490.107, and the State DOTs shall provide relevant MPO(s) targets to FHWA, upon request, each time the relevant MPOs establish or adjust MPO targets, as described in paragraph (f) of this section. (6) Target adjustment. State DOTs may adjust an established 4-year target in the Mid Performance Period Progress Report, as described in § 490.107(b)(2). State DOTs shall coordinate with relevant MPOs when adjusting their 4year target(s). (7) Phase-in of new requirements for Interstate System pavement condition measures. The following requirements apply only to the first performance period and the measures in §§ 490.307(a)(1) and (a)(2): (i) State DOTs shall establish their 4year targets, required under paragraph (e)(4)(iv) of this section, and report these targets in their Baseline Performance Period Report, required under § 490.107(b)(1); (ii) State DOTs shall not report 2-year targets, described in paragraph (e)(4)(iii) of this section, and baseline condition/ performance in their Baseline Performance Period Report; and (iii) State DOTs shall update the baseline condition/performance in their Baseline Performance Period Report, with the 2-year condition/performance in their Mid Performance Period VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Progress Report, described in § 490.107(b)(2)(ii)(A). State DOTs may also adjust their 4-year targets, as appropriate. (f) The MPOs shall establish targets for each of the performance measures identified in paragraph (c) of this section for the respective target scope identified in paragraph (d) of this section as follows: (1) Schedule. The MPOs shall establish targets no later than 180 days after the respective State DOT(s) establishes their targets, described in paragraph (e)(1) of this section. (i) The MPOs shall establish 4-year targets, described in paragraph (e)(4)(iv) of this section, for all applicable measures, described in paragraphs (c) and (d) of this section. (ii) [Reserved.] (2) Coordination. The MPOs shall coordinate with relevant State DOT(s) on the selection of targets in accordance with 23 U.S.C. 134(h)(2)(B)(i)(II) to ensure consistency, to the maximum extent practicable. (3) Target establishment options. For each performance measure identified in paragraph (c) of this section, MPOs shall establish a target by either: (i) Agreeing to plan and program projects so that they contribute toward the accomplishment of the relevant State DOT target for that performance measure; or (ii) Committing to a quantifiable target for that performance measure for their metropolitan planning area. (4) MPOs serving a multistate metropolitan planning area.—For each performance measure identified in paragraph (c)(1) through (c)(3) of this section, MPOs, with metropolitan planning areas extending across multiple State boundaries shall follow these requirements: (i) For each measure, MPOs may choose different target establishment options, provided in paragraph (3) of this section, for each portion of the metropolitan area within each State. (ii) If MPOs choose the option to agree to plan and program projects to contribute toward State DOT targets, in accordance with paragraph (3)(i) of this section, for a measure, then they shall plan and program projects in support of State DOT targets for each portion of the metropolitan area within each State. (5)–(6) [Reserved] (7) MPO response to State DOT target adjustment.—For the established targets in paragraph (3) of this section, if the State DOT adjusts a 4-year target in the State DOT’s Mid Performance Period Progress Report and if, for that respective target, the MPO established a target by supporting the State DOT PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 5959 target as allowed under paragraph (f)(3)(i) of this section, then the MPO shall, within 180 days, report to the State DOT whether they will either: (i) Agree to plan a program of projects so that they contribute to the adjusted State DOT target for that performance measure; or (ii) Commit to a new quantifiable target for that performance measure for its metropolitan planning area. (8) Target adjustment. If the MPO establishes its target by committing to a quantifiable target, described in paragraph (f)(3)(ii) of this section, then the MPOs may adjust its target(s) in a manner that is mutually agreed upon by the State DOT and MPO. (9) Reporting. The MPOs shall report targets and progress toward the achievement of their targets as specified in § 490.107(c). After the MPOs establish or adjust their targets, the relevant State DOT(s) must be able to provide these targets to FHWA, upon request. § 490.107 targets. Reporting on performance (a) In general. All State DOTs and MPOs shall report the information specified in this section for the targets required in § 490.105. (1) All State DOTs and MPOs shall report in accordance with the schedule and content requirements under paragraphs (b) and (c) of this section, respectively. (2) For the measures identified in § 490.207(a), all State DOTs and MPOs shall report on performance in accordance with § 490.213. (3) State DOTs shall report using an electronic template provided by FHWA. (b) State Biennial Performance Report. State DOTs shall report to FHWA baseline condition/performance at the beginning of a performance period and progress achievement at both the midpoint and end of a performance period. State DOTs shall report at an ongoing 2-year frequency as specified in paragraphs (b)(1), (b)(2), and (b)(3) of this section. (1) Baseline Performance Period Report—(i) Schedule. State DOTs shall submit a Baseline Performance Period Report to FHWA by October 1 of the first year in a performance period. State DOTs shall submit their first Baseline Performance Period Report to FHWA by October 1, 2018, and subsequent Baseline Performance Period Reports to FHWA by October 1 every 4 years thereafter. (ii) Content. The State DOT shall report the following information in each Baseline Performance Period Report: (A) Targets. 2-year and 4-year targets for the performance period, as required E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5960 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations in § 490.105(e), and a discussion, to the maximum extent practicable, of the basis for each established target; (B) Baseline condition/ performance.—Baseline condition/ performance derived from the latest data collected through the beginning date of the performance period specified in § 490.105(e)(4)(i) for each target, required under paragraph (b)(1)(ii)(A) of this section; (C) Relationship with other performance expectations.—A discussion, to the maximum extent practicable, on how the established targets in paragraph (b)(1)(ii)(A) of this section support expectations documented in longer range plans, such as the State asset management plan for the NHS required by 23 U.S.C. 119(e) and the long-range statewide transportation plan provided in part 450 of this chapter; and (D) Urbanized area boundaries and population data for targets.—For the purpose of determining target scope in § 490.105(d) and establishing additional targets for urbanized and non-urbanized areas in § 490.105(e)(3), State DOTs shall document the boundary extent for all applicable urbanized areas and the latest Decennial Census population data, based on information in HPMS. (2) Mid Performance Period Progress Report—(i) Schedule. State DOTs shall submit a Mid Performance Period Progress Report to FHWA by October 1 of the third year in a performance period. State DOTs shall submit their first Mid Performance Period Progress Report to FHWA by October 1, 2020, and subsequent Mid Performance Period Progress Reports to FHWA by October 1 every 4 years thereafter. (ii) Content. The State DOT shall report the following information in each Mid Performance Period Progress Report: (A) 2-year condition/performance. The actual condition/performance derived from the latest data collected through the midpoint of the performance period, specified in § 490.105(e)(4), for each State DOT reported target required in paragraph (b)(1)(ii)(A) of this section; (B) 2-year progress in achieving performance targets. A discussion of State DOT’s progress toward achieving each established 2-year target in paragraph (b)(1)(ii)(A) of this section. The State DOT shall compare the actual 2-year condition/performance in paragraph (b)(2)(ii)(A) of this section, within the boundaries and limits documented in paragraphs (b)(1)(ii)(D) and (b)(1)(ii)(E) of this section, with the respective 2-year target and document in the discussion any reasons for VerDate Sep<11>2014 22:39 Jan 17, 2017 Jkt 241001 differences in the actual and target values; (C) Investment strategy discussion. A discussion on the effectiveness of the investment strategies developed and documented in the State asset management plan for the NHS required under 23 U.S.C. 119(e); (D) [Reserved] (E) Target adjustment discussion.— When applicable, a State DOT may submit an adjusted 4-year target to replace an established 4-year target in paragraph (b)(1)(ii)(A) of this section. If the State DOT adjusts its target, it shall include a discussion on the basis for the adjustment and how the adjusted target supports expectations documented in longer range plans, such as the State asset management plan for the NHS, and the long-range statewide transportation plan. The State DOT may only adjust a 4-year target at the midpoint and by reporting the change in the Mid Performance Period Progress Report. (F) 2-year significant progress discussion for the National Highway Performance Program (NHPP) targets.— State DOTs shall discuss the progress they have made toward the achievement of all 2-year targets established for the NHPP measures in § 490.105(c)(1) through (c)(3). This discussion should document a summary of prior accomplishments and planned activities that will be conducted during the remainder of the Performance Period to make significant progress toward that achievement of 4-year targets for NHPP measures; (G) Extenuating circumstances discussion on NHPP 2-year targets.— When applicable, a State DOT may include a discussion on the extenuating circumstance(s), described in § 490.109(e)(5), beyond the State DOT’s control that prevented the State DOT from making 2-year significant progress toward achieving NHPP target(s) in paragraph (b)(2)(ii)(F) of this section; and (H) NHPP target achievement discussion.—If FHWA determines that a State DOT has not made significant progress toward the achievement of NHPP targets in a biennial FHWA determination, then the State DOT shall include a description of the actions they will undertake to better achieve NHPP targets as required under § 490.109(f). If FHWA determines under § 490.109(e) that the State DOT has made significant progress, then the State DOT does not need to include this description. (3) Full Performance Period Progress Report—(i) Schedule. State DOTs shall submit a progress report on the full performance period to FHWA by October 1 of the first year following the PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 reference performance period. State DOTs shall submit their first Full Performance Period Progress Report to FHWA by October 1, 2022, and subsequent Full Performance Period Progress Reports to FHWA by October 1 every 4 years thereafter. (ii) Content. The State DOT shall report the following information for each Full Performance Period Progress Report: (A) 4-year condition/performance.— The actual condition/performance derived from the latest data collected through the end of the Performance Period, specified in § 490.105(e)(4), for each State DOT reported target required in paragraph (b)(1)(ii)(A) of this section; (B) 4-year progress in achieving performance targets.—A discussion of the State DOT’s progress made toward achieving each 4-year target established in paragraph (b)(1)(ii)(A) or in paragraph (b)(2)(ii)(E) of this section, when applicable. The State DOT shall compare the actual 4-year condition/ performance in paragraph (b)(3)(ii)(A) of this section, within the boundaries and limits documented in paragraph (b)(1)(ii)(D) and (b)(1)(ii)(E) of this section, with the respective 4-year target and document in the discussion any reasons for differences in the actual and target values; (C) Investment strategy discussion.— A discussion on the effectiveness of the investment strategies developed and documented in the State asset management plan for the NHS required under 23 U.S.C. 119(e); (D) [Reserved] (E) 4-year significant progress evaluation for NHPP targets.—State DOTs shall discuss the progress they have made toward the achievement of all 4-year targets established for the NHPP measures in § 490.105(c)(1) through (c)(3). This discussion shall include a summary of accomplishments achieved during the Performance Period to demonstrate whether the State DOT has made significant progress toward achievement of 4-year targets for NHPP measures. (F) Extenuating circumstances discussion on NHPP targets.—When applicable, a State DOT may include discussion on the extenuating circumstance(s), described in § 490.109(e)(5), beyond the State DOT’s control that prevented the State DOT from making a 4-year significant progress toward achieving NHPP targets, described in paragraph (b)(3)(ii)(E) of this section; (G) NHPP Target Achievement Discussion.—If FHWA determines that a State DOT has not made significant progress toward the achievement of E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations NHPP targets in a biennial FHWA determination, then the State DOT shall include a description of the actions they will undertake to better achieve NHPP targets as required under § 490.109(f). If FHWA determines in § 490.109(e) that the State DOT has achieved significant progress, then the State DOT does not need to include this description. (c) MPO Report. The MPOs shall establish targets in accordance with § 490.105 and report targets and progress toward the achievement of their targets in a manner that is consistent with the following: (1) The MPOs shall report their established targets to their respective State DOT in a manner that is documented and mutually agreed upon by both parties. (2) The MPOs shall report baseline condition/performance and progress toward the achievement of their targets in the system performance report in the metropolitan transportation plan in accordance with Part 450 of this chapter. mstockstill on DSK3G9T082PROD with RULES5 § 490.109 Assessing significant progress toward achieving the performance targets for the National Highway Performance Program. (a) In general. The FHWA will assess each of the State DOT targets separately for the NHPP measures specified in § 490.105(c)(1) through (c)(3) to determine the significant progress made toward the achievement of those targets. (b) Frequency. The FHWA will determine whether a State DOT has or has not made significant progress toward the achievement of NHPP targets as described in paragraph (e) of this section at the midpoint and the end of each performance period. (c) Schedule. The FHWA will determine significant progress toward the achievement of a State DOT’s NHPP targets after the State DOT submit the Mid Performance Period Progress Report for progress toward the achievement of 2-year targets, and again after the State DOT submit the Full Performance Period Progress Report for progress toward the achievement of 4-year targets. The FHWA will notify State DOTs of the outcome of the determination of the State DOT’s ability to make significant progress toward the achievement of its NHPP targets. (d) Source of data/information. The FHWA will use the following sources of information to assess NHPP condition and performance progress: (1) Data contained within the HPMS on June 15 of the year in which the significant progress determination is made that represents conditions from the prior year for targets established for VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 Interstate System pavement condition measures, as specified in § 490.105(c)(1); (2) Data contained within the HPMS on August 15 of the year in which the significant progress determination is made that represents conditions from the prior year for targets established for non-Interstate NHS pavement condition measures, as specified in § 490.105(c)(2); (3) The most recently available data contained within the NBI as of June 15 of the year in which the significant progress determination is made for targets established for NHS bridge condition measures, as specified in § 490.105(c)(3). (4) Baseline condition data contained in HPMS and NBI of the year in which the Baseline Period Performance Report is due to FHWA that represents baseline conditions for the performance period. (e) Significant progress determination for individual NHPP targets—(1) In general. The FHWA will biennially assess whether the State DOTs has achieved or made significant progress toward each target established by the State DOT for the NHPP measures described in § 490.105(c)(1) through (c)(3). The FHWA will assess the significant progress of each statewide target separately using the condition/ performance data/information sources described in paragraph (d) of this section. The FHWA will not assess the progress achieved for any additional targets a State DOT may establish under § 490.105(e)(3). (2) Significant progress toward individual NHPP targets.—The FHWA will determine that a State DOT has made significant progress toward the achievement of each 2-year or 4-year NHPP target if either: (i) The actual condition/performance level is better than the baseline condition/performance; or (ii) The actual condition/performance level is equal to or better than the established target. (3) Phase-in of new requirements for Interstate System pavement condition measures.—The following requirements shall only apply to the first performance period and the Interstate System pavement condition targets, described in § 490.105(e)(7): (i) At the midpoint of the first performance period, FHWA will not make a determination of significant progress toward the achievement of 2year targets for Interstate System pavement condition measures. (ii) The FHWA will classify the assessment of progress toward the achievement of targets in paragraph (e)(3)(i) of this section as ‘‘progress not PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 5961 determined’’ so that they will be excluded from the requirement under paragraph (e)(2) of this section. (4) Insufficient data and/or information. The FHWA will determine that a State DOT has not made significant progress toward the achievement of an individual NHPP target if: (i) A State DOT does not submit a required report, individual target, or other information as specified in § 490.107 for the each of the measures in § 490.105(c); (ii) The data contained in HPMS does not meet the requirements under § 490.313(b)(4)(i) by the data extraction date specified in paragraph (d)(1) of this section for the each of the Interstate System pavement condition measures in § 490.105(c)(1); (iii) The data contained in HPMS does not meet the requirements under § 490.313(b)(4)(i) by the data extraction date specified in paragraph (d)(2) of this section for the each of the non-Interstate NHS pavement condition measures in § 490.105(c)(2); (iv) A State DOT reported data is not cleared in the NBI by the data extraction date specified in paragraph (d)(3) of this section for each of the NHS bridge condition measures in § 490.105(c)(3); or (v) The data was determined insufficient, as described in paragraphs (e)(4)(ii) through (iv) of this section, in the year in which the Baseline Period Performance Report is due to FHWA for the measures in § 490.105(c), and the actual condition/performance level is not equal to or better than the established target. (5) Extenuating circumstances. The FHWA will consider extenuating circumstances documented by the State DOT in the assessment of progress toward the achievement of NHPP targets in the relevant State Biennial Performance Report, provided in § 490.107. (i) The FHWA will classify the assessment of progress toward the achievement of an individual 2-year or 4-year target as ‘‘progress not determined’’ if the State DOT has provided an explanation of the extenuating circumstances beyond the control of the State DOT that prevented it from making significant progress toward the achievement of a 2-year or 4year target and the State DOT has quantified the impacts on the condition/ performance that resulted from the circumstances, which are: (A) Natural or man-made disasters that caused delay in NHPP project delivery, extenuating delay in data E:\FR\FM\18JAR5.SGM 18JAR5 5962 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations mstockstill on DSK3G9T082PROD with RULES5 collection, and/or damage/loss of data system; (B) Sudden discontinuation of Federal Government furnished data due to natural and man-made disasters or sudden discontinuation of Federal Government furnished data due to lack of funding; and/or (C) New law and/or regulation directing State DOTs to change metric and/or measure calculation. (ii) If the State DOT’s explanation, described in paragraph (e)(5)(i) of this section, is accepted by FHWA, FHWA will classify the progress toward achieving the relevant NHPP target(s) as ‘‘progress not determined,’’ and those targets will be excluded from the requirement in paragraph (e)(2) of this section. (f) Performance achievement. If FHWA determines that a State DOT has not made significant progress toward achieving the NHPP targets, then State DOTs shall include as part of the performance target report under sec. 150(e) [the Biennial Performance Report] a description of the actions the State DOT will undertake to achieve the targets related to the measure in which significant progress was not achieved as follows: (1) If significant progress is not made for either target established for the Interstate System pavement condition measures, § 490.307(a)(1) and (a)(2), then the State DOT shall document the actions they will take to achieve Interstate Pavement condition targets; (2) If significant progress is not made for either target established for the NonInterstate System pavement condition measures, § 490.307(a)(3) and (a)(4), then the State DOT shall document the actions they will take to achieve NonInterstate Pavement condition targets. (3) If significant progress is not made for either target established for the NHS bridge condition measures, § 490.407(c)(1) and (c)(2), then the State DOT shall document the actions they will take to achieve the NHS bridge condition targets. (4)–(5) [Reserved] (6) The State DOT should, within 6 months of the significant progress determination, amend its Biennial Performance Report to document the information specified in this paragraph to ensure actions are being taken to achieve targets. § 490.111 Incorporation by reference. (a) Certain material is incorporated by reference into this Part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, VerDate Sep<11>2014 23:05 Jan 17, 2017 Jkt 241001 FHWA must publish a notice of change in the Federal Register and the material must be available to the public. All approved material is available for inspection at the Federal Highway Administration, Office of Highway Policy Information (202–366–4631) 1200 New Jersey Avenue SE., Washington, DC 20590, www.fhwa.dot.gov and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030 or go to http:// www.archives.gov/federal_register/ code_of_federal_regulations/ibr_ locations.html. (b) The Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590, www.fhwa.dot.gov. (1) Highway Performance Monitoring System (HPMS) Field Manual, IBR approved for §§ 490.103, 490.309, 490.311, and 490.319. (2) Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, includes: Errata Sheet for Coding Guide 06/2011, Report No. FHWA–PD–96–001, December 1995, IBR approved for §§ 490.409 and 490.411. (c) The American Association of State Highway and Transportation Officials, 444 North Capitol Street NW., Suite 249, Washington, DC 20001, (202) 624–5800, www.transportation.org. (1) AASHTO Standard M328–14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Inertial Profiler, 2014, 34th/2014 Edition, IBR approved for § 490.309. (2) AASHTO Standard R57–14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Operating Inertial Profiling Systems, 2014, 34th/2014 Edition, IBR approved for § 490.309. (3) AASHTO Standard R48–10 (2013), Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Determining Rut Depth in Pavements, 2014, 34th/2014 Edition, IBR approved for § 490.309. (4) AASHTO Standard R36–13, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Evaluating Faulting of Concrete Pavements, 2014, 34th/2014 Edition, IBR approved for § 490.309. (5) AASHTO Standard R43–13, Standard Specification for Transportation Materials and Methods PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 of Sampling and Testing, Standard Practice for Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, IBR approved for § 490.311. ■ 3. Add subpart C to read as follows: Subpart C—National Performance Management Measures for the Assessing Pavement Condition Sec. 490.301 Purpose. 490.303 Applicability. 490.305 Definitions. 490.307 National performance management measures for assessing pavement condition. 490.309 Data requirements. 490.311 Calculation of pavement metrics. 490.313 Calculation of performance management measures. 490.315 Establishment of minimum level for condition of pavements. 490.317 Penalties for not maintaining minimum Interstate System pavement condition. 490.319 Other requirements. Subpart C—National Performance Management Measures for the Assessing Pavement Condition § 490.301 Purpose. The purpose of this subpart is to implement the following statutory requirements of 23 U.S.C. 150(c)(3) to: (a) Establish measures for State DOTs and MPOs to assess the condition of pavements on the Interstate System; (b) Establish measures for State DOTs and MPOs to assess the condition of pavements on the NHS (excluding the Interstate); (c) Establish minimum levels for pavement condition on the Interstate System, only for purposes of carrying out 23 U.S.C. 119(f)(1); (d) Establish data elements that are necessary to collect and maintain standardized data to carry out a performance-based approach; and (e) Consider regional differences in establishing the minimum levels for pavement conditions on the Interstate System. § 490.303 Applicability. The performance measures in this subpart are applicable to the mainline highways on the Interstate System and on the non-Interstate NHS. § 490.305 Definitions. The following definitions are only applicable to this subpart, unless otherwise provided: Asphalt pavements means pavements where the top-most surface is constructed with asphalt materials. These pavements are coded in the HPMS as having any one of the following Surface Types: E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Code 2 6 7 8 Surface_type ........................ ........................ ........................ ........................ Bituminous. Asphalt-Concrete (AC) Overlay over Existing AC Pavement. AC Overlay over Existing Jointed Concrete Pavement. AC (Bituminous Overlay over Existing CRCP). Continuously Reinforced Concrete Pavements (CRCP) means pavements where the top-most surface is constructed of reinforced Portland cement concrete with no joints. These Code CRCP—Continuously Reinforced Concrete Pavement. Cracking means an unintentional break in the continuous surface of a pavement. Cracking Percent means the percentage of pavement surface exhibiting cracking as follows: (1) For asphalt pavements, Cracking Percent is the percentage of the area of the pavement section, exhibiting visible cracking. (2) For jointed concrete pavements, Cracking Percent is the percentage of concrete slabs exhibiting cracking. (3) For CRCP, the Cracking Percent is the percentage of pavement surface with longitudinal cracking and/or punchouts, spalling or other visible defects. Faulting means a vertical misalignment of pavement joints in Portland Cement Concrete Pavements. International Roughness Index (IRI) means a statistic used to estimate the amount of roughness in a measured longitudinal profile. The IRI is computed from a single longitudinal profile using a quarter-car simulation, as described in the report: ‘‘On the Calculation of IRI from Longitudinal Road Profile’’ (Sayers, M.W., Transportation Research Board 1501, Transportation Research Board, Washington, DC 1995). Jointed concrete pavements means pavements where the top-most surface is constructed of Portland cement concrete with joints. It may be constructed of either reinforced or unreinforced (plain) concrete. It is coded in the HPMS as having any one of the following Surface Types: mstockstill on DSK3G9T082PROD with RULES5 Code Surface_type 3 ........ Jointed Plain Concrete Pavement (includes whitetopping). Jointed Reinforced Concrete Pavement (includes whitetopping). Unbonded Jointed Concrete Overlay on PCC Pavement. Bonded PCC Overlay on PCC Pavement. 9 ........ 10 ...... VerDate Sep<11>2014 pavements are coded in the HPMS as having the following Surface Type: Surface_type 5 ........................ 4 ........ 5963 22:01 Jan 17, 2017 Jkt 241001 Pavement means any hard surfaced travel lanes of any highway. Pavement section means a nominally 0.1 mile-long reported segment that defines the limits of pavement condition metrics required by FHWA. Present Serviceability Rating (PSR) means an observation based system used to rate pavements. Punchout means a distress specific to CRCP described as the area between two closely spaced transverse cracks and between a short longitudinal crack and the edge of the pavement (or a longitudinal joint) that is breaking up, spalling, or faulting. Rutting means longitudinal surface depressions in the pavement derived from measurements of a profile transverse to the path of travel on a highway lane. It may have associated transverse displacement. Sampling as applied to pavements, means measuring pavement conditions on a short section of pavement as a statistical representation for the entire section. Sampling is not to be used to measure or rate NHS pavement conditions. § 490.307 National performance management measures for assessing pavement condition. (a) To carry out the NHPP, the performance measures for State DOTs to assess pavement condition are: (1) Percentage of pavements of the Interstate System in Good condition; (2) Percentage of pavements of the Interstate System in Poor condition; (3) Percentage of pavements of the non-Interstate NHS in Good condition; and (4) Percentage of pavements of the non-Interstate NHS in Poor condition. (b) State DOTs will collect data using the methods described in § 490.309 and will process this data to calculate individual pavement metrics for each section of pavement that will be reported to FHWA as described in § 490.311. State DOTs and FHWA will PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 use the reported pavement metrics to compute an overall performance of Good, Fair, or Poor, for each section of pavement as described in § 490.313. § 490.309 Data requirements. (a) The performance measures identified in § 490.307 are to be computed using methods in § 490.313 from the four condition metrics and three inventory data elements contained within the HPMS that shall be collected and reported following the HPMS Field Manual, which is incorporated by reference into this subpart (see § 490.111). State DOTs shall report four condition metrics for each pavement section: IRI, rutting, faulting, and Cracking_Percent. State DOTs shall also report three inventory data elements as directed in the HPMS Field Manual: Through Lanes, Surface Type, and Structure Type. All pavement data collected after January 1, 2018 for Interstate highways and January 1, 2020 for non-Interstate National Highway System routes shall meet the requirements of this section. (b) State DOTs shall collect data in accordance with the following relevant HPMS requirements to report IRI, rutting (asphalt pavements), faulting (jointed concrete pavements), and Cracking percent. State DOTs will be permitted to report present serviceability rating (PSR) for specific locations in accordance with the HPMS requirements as an alternative where posted speed limits are less than 40 miles per hour. (1) For the Interstate System the following shall apply for all the pavement condition metrics: (i) State DOTs shall collect data— (A) From the full extent of the mainline highway; (B) In the rightmost travel lane or one consistent lane for all data if the rightmost travel lane carries traffic that is not representative of the remainder of the lanes or is not readily accessible due E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5964 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations to closure, excessive congestion, or other events impacting access; (C) Continuously collected in a manner that will allow for reporting in nominally uniform pavement section lengths of 0.10 mile (528 feet); shorter pavement sections are permitted only at the beginning of a route, end of a route, at bridges, at locations where surface type changes or other locations where a pavement section length of 0.10 mile is not achievable; the maximum length of pavement sections shall not exceed 0.11 mile (580.8 feet); (D) In at least one direction of travel; and (E) On an annual frequency. (ii) Estimating conditions from data samples of the full extent of the mainline highway is not permitted. (iii) State DOTs may collect and report pavement condition data separately for each direction of divided highways on the Interstate System. Averaging across directions is not permitted. When pavement condition data is collected in one direction only, the measured conditions shall apply to all lanes in both directions for that pavement section for purposes of this part. (iv) For the portions of the Interstate mainline highway pavements where posted speed limits are less than 40 MPH (e.g., border crossings, toll plazas), State DOTs may collect and report the Present Serviceability Rating (PSR) as an alternative to the IRI, Cracking_Percent, rutting, and faulting in this pavement section and shall follow the following requirements: (A) The PSR shall be determined as a value from 0 to 5 per the procedures prescribed in the HPMS Field Manual; (B) Alternative pavement condition methods may be allowed to estimate a PSR with prior approval from FHWA of the method of correlation between their condition determination and PSR as required in the HPMS Field Manual; (C) The PSR data shall be continuously collected in a manner that will allow for reporting in uniform pavement section lengths of 0.10 mile (528 feet); shorter pavement sections are permitted only at the beginning of a route, end of a route, at bridges, at locations where surface type changes or other locations where a pavement section length of 0.10 mile is not achievable; the maximum length of pavement sections shall not exceed 0.11 mile (580.8 feet); (D) The PSR data shall be collected in at least one direction of travel; and (E) The PSR data shall be collected on an annual frequency. (2) For the non-Interstate NHS the following shall apply: VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 (i) For the IRI metric, State DOTs shall collect and report data: (A) From the full extent of the mainline highway; (B) In the rightmost travel lane or one consistent lane for all data if the rightmost travel lane is not accessible; (C) Continuously collected in a manner that will allow for reporting in uniform pavement section lengths of 0.10 mile (528 feet); shorter pavement sections are permitted only at the beginning of a route, end of a route, at bridges, at locations where surface type changes or other locations where a pavement section length of 0.10 mile is not achievable; the maximum length of pavement sections shall not exceed 0.11 mile (580.8 feet) (D) In one direction of travel; and (E) On a biennial frequency. (F) Estimating IRI metrics from data samples of the full extent of the mainline will not be permitted. (ii) For the Cracking percent, rutting and faulting metrics, State DOTs shall collect data— (A) On the full extent (no sampling) of the mainline highway; (B) In the rightmost travel lane or one consistent lane for all data if the rightmost travel lane is not accessible; (C) Continuously collected in a manner that will allow for reporting in uniform pavement section lengths of 0.10 mile (528 feet); shorter pavement sections are permitted only at the beginning of a route, end of a route, at bridges, at locations where surface type changes or other locations where a pavement section length of 0.10 mile is not achievable; the maximum length of pavement sections shall not exceed 0.11 mile (580.8 feet) (D) In one direction of travel; and (E) On at least a biennial frequency. (F) Estimating conditions from data samples of the full extent of the mainline highway will not be permitted. (iii) For the portions of mainline highways where posted speed limits of less than 40 MPH, State DOTs may collect the Present Serviceability Rating (PSR) as an alternative to the IRI, Cracking_Percent, rutting, and faulting pavement condition metrics, in paragraphs (b)(2)(i) and (ii) of this section, and shall follow the following requirements: (A) The PSR shall be determined as a 0 to 5 value per the procedures prescribed in the HPMS Field Manual; (B) Alternative pavement condition methods may be allowed to estimate a PSR with prior approval from FHWA of the method of correlation between their condition determination and PSR as required in the HPMS Field Manual; (C) The PSR data shall be continuously collected in a manner that PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 will allow for reporting in uniform pavement section lengths of 0.10 mile (528 feet); shorter pavement sections are permitted only at the beginning of a route, end of a route, at bridges, at locations where surface type changes or other locations where a pavement section length of 0.10 mile is not achievable; the maximum length of pavement sections shall not exceed 0.11 mile (580.8 feet); (D) The PSR data shall be collected in one direction of travel; and (E) The PSR data shall be collected on at least a biennial frequency. (3) Data collection methods for each of the condition metrics shall conform to the following: (i) The device to collect data needed to calculate the IRI metric shall be in accordance with American Association of State Highway Transportation Officials (AASHTO) Standard M328–14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Equipment Specification for Inertial Profiler (incorporated by reference, see § 490.111). (ii) The method to collect data needed to calculate the IRI metric shall be in accordance with AASHTO Standard R57–14, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Operating Inertial Profiling Systems (incorporated by reference, see § 490.111). (iii) For highways with a posted speed limit less than 40 miles per hour, an alternate method for estimation of IRI is permitted as described in § 490.309(b)(1)(iv) or § 490.309(b)(2)(iii) may be used in lieu of measuring IRI, cracking, rutting and faulting. (iv) The method to collect data needed to determine the Cracking_ Percent metric for all pavement types except CRCP shall be manual, semiautomated, or fully automated in accordance with the HPMS Field Manual (incorporated by reference, see 490.111). (v) For CRCP the method to collect the data needed to determine the Cracking_ Percent metric is described in the HPMS Field Manual (incorporated by reference, see § 490.111) and includes longitudinal cracking and/or punchouts, spalling, or other visible defects. (vi) For asphalt pavements, the method to collect data needed to determine the rutting metric shall either be: (A) A 5-Point Collection of Rutting Data method in accordance with AASHTO Standard R48–10, Standard Specification for Transportation Materials and Methods of Sampling and E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations Testing, Standard Practice for Determining Rut Depth in Pavements (incorporated by reference, see § 490.111); or (B) An Automated Transverse Profile Data method in accordance with the HPMS Field Manual (incorporated by reference, see § 490.111). (vii) For jointed concrete pavements, the method to collect data needed to determine the faulting metric shall be in accordance with AASHTO Standard R36–13, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Evaluating Faulting of Concrete Pavements (incorporated by reference, see § 490.111). (c) State DOTs shall collect data in accordance with the following relevant HPMS requirements to report Through Lanes, Surface Type, and Structure Type. (1) State DOTs shall collect data: (i) For the full extent of the mainline highway of the NHS; (ii) In at least one direction of travel for the Interstate System and in one direction of travel for the non-Interstate NHS; and (iii) On an annual frequency on the Interstate routes and on at least a biennial frequency on non-Interstate NHS routes. (2) Estimating data elements from samples of the full extent of the mainline highway is not permitted. mstockstill on DSK3G9T082PROD with RULES5 § 490.311 Calculation of pavement metrics. (a) The condition metrics and inventory data elements needed to calculate the pavement performance measures shall be calculated in accordance with the HPMS Field Manual (incorporated by reference, see § 490.111), except as noted below. (b) State DOTs shall calculate metrics in accordance with the following relevant HPMS requirements. (1) For all pavements, the IRI metric: (i) Shall be computed from pavement profile data in accordance with AASHTO Standard R43–13, Standard Specification for Transportation Materials and Methods of Sampling and Testing, Standard Practice for Quantifying Roughness of Pavement, 2014, 34th/2014 Edition, AASHTO, 1– 56051–606–4 (incorporated by reference, see § 490.111); (ii) Shall be reported for all pavements as the average value in inches per mile for each section; and (iii) Shall not be estimated from a PSR or other observation-based method except where permitted in § 490.309(b)(3)(iii). (2) For asphalt pavements— (i) The Cracking_Percent metric shall be computed as the percentage of the VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 total area containing visible cracks to the nearest whole percent in each section; and (ii) The rutting metric shall be computed as the average depth of rutting, in inches to the nearest 0.01 inches, for the section. (3) For CRCP, the Cracking_Percent metric shall be computed as the percentage of the area of the section to the nearest whole percent exhibiting longitudinal cracking, punchouts, spalling, or other visible defects. Transverse cracking shall not be considered in the Cracking_Percent metric. (4) For jointed concrete pavements— (i) The Cracking_Percent metric shall be computed as the percentage of slabs to the nearest whole percent within the section that exhibit cracking; (ii) Partial slabs shall contribute to the section that contains the majority of the slab length; and (iii) The faulting metric shall be computed as the average height, in inches to the nearest 0.01 inch, of faulting between pavement slabs for the section. (5) For the mainline highways on the non-Interstate NHS with posted speed limits of less than 40 MPH— (i) The present serviceability rating (PSR) may be used as an alternative to the IRI, Cracking_Percent, rutting, and faulting pavement condition metrics. (ii) The PSR shall be determined as a 0 to 5 value per the procedures prescribed in the HPMS Field Manual. (iii) Alternative pavement condition methods may be allowed to estimate a PSR with prior approval from FHWA of the method of correlation between their condition determination and PSR as required in the HPMS Field Manual. (c) State DOTs shall report the four pavement metrics listed in § 490.309(a) as calculated following the requirements in paragraphs (a) and (b) of this section in accordance with the following relevant HPMS requirements: (1) Pavement condition metrics shall be reported to the HPMS in uniform section lengths of 0.1 mile (528 feet); shorter sections are permitted only at the beginning of a route, the end of a route, at bridges, or other locations where a section length of 0.1 mile is not achievable; and the maximum length of sections shall not exceed 0.11 mile (580.8 feet) (2) Each measured section shall have a single value for each of the relevant condition metrics. Sections where condition is estimated from PSR will have one value for the overall condition. (3) The time and location reference shall be reported for each section as follows: PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 5965 (i) The State_Code, Route_ID, Begin_ Point, and End_Point shall be reported as specified in the HPMS field manual (incorporated by reference, see § 490.111) for each of the four condition metrics. (ii) The Year_Record shall be reported as the four digit year for which the data represents for each of the four condition metrics; and (iii) The Value_Date shall be reported as the month and year of data collection for each of the four condition metrics. (4) Sections for the four condition metrics shall be reported to the HPMS for the Interstate System by April 15 of each year for the data collected during the previous calendar year. (5) Sections for the four condition metrics shall be reported to the HPMS for the non-Interstate NHS by June 15 of each year for the data collected during the previous calendar year(s). (d) The three inventory data elements, Through_Lanes, Surface_Type, and Structure Type shall be reported to the HPMS as directed in Chapter 4 of the HPMS Field Manual for the entire extent of the NHS. (1) Section Lengths for the three inventory data items are not required to meet the 0.1 mile nominal length but may be any logical length as defined in the HPMS Field Manual. (2) The three inventory data elements shall be reported to the HPMS for the Interstate System by April 15 of each year. (3) The three inventory data elements shall be reported to the HPMS for the non-Interstate NHS by June 15 of the each year that data reporting is required. § 490.313 Calculation of performance management measures. (a) The pavement measures in § 490.307 shall be calculated in accordance with this section and used by State DOTs and MPOs to carry out the pavement condition related requirements of this part, and by FHWA to make the significant progress and minimum condition determinations specified in §§ 490.109 and 490.317, respectively. (b) The performance measure for pavements shall be calculated based on the data collected in § 490.309 and pavement condition metrics computed in § 490.311. The performance measure for pavements shall be based on three condition ratings of Good, Fair, and Poor calculated for each pavement section. The ratings are determined as follows: (1) IRI rating shall be determined for all pavement types using the following criteria. If an IRI value of a pavement section is:— E:\FR\FM\18JAR5.SGM 18JAR5 mstockstill on DSK3G9T082PROD with RULES5 5966 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations (i) Less than 95, the IRI rating for the pavement section is Good; (ii) Between 95 and 170, the IRI rating for the pavement section is Fair; and (iii) Greater than 170, the IRI rating for the pavement section is Poor. (2) Cracking condition shall be determined using the following criteria: (i) For asphalt pavement sections— (A) If the Cracking_Percent value of a section is less than 5 percent, the cracking rating for the pavement section is Good; (B) If the Cracking_Percent value of a section is equal to or greater than 5 percent and less than or equal to 20 percent the cracking rating for the pavement section is Fair; and (C) If the Cracking_Percent value of a section is greater than 20 percent the cracking rating for the pavement section is Poor. (ii) For jointed concrete pavement sections— (A) If the Cracking_Percent value of a section is less than 5 percent, the cracking rating for the pavement section is Good; (B) If the Cracking_Percent value of a section is equal to or greater than 5 percent and less than or equal to 15 percent the cracking rating for the pavement section is Fair; and (C) If the Cracking_Percent value of a section is greater than 15 percent the cracking rating for the pavement section is Poor. (iii) For CRCP sections: (A) If the Cracking_Percent value of a section is less than 5 percent, the cracking rating for the pavement section is Good; (B) If the Cracking_Percent value of a section is equal to or greater than 5 percent and less than or equal to 10 percent, the cracking rating for the pavement section is Fair; and (C) If the Cracking_Percent value of a section is greater than 10 percent, the cracking rating for the pavement section is Poor. (3) Rutting or faulting rating shall be determined using the following criteria. (i) For asphalt pavement: (A) If the rutting value of a section is less than 0.20 inches, the rutting rating for the pavement section is Good; (B) If the rutting value of a section is equal to or greater than 0.20 inches and less than or equal to 0.40 inches, the rutting rating for the pavement section is Fair; and (C) If the rutting value of a section in is greater than 0.40 inches, the rutting rating for the pavement section is Poor. (ii) For jointed concrete pavement: (A) If the faulting value of a section is less than 0.10 inches, the faulting rating for the pavement section is Good; VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 (B) If the faulting value of a section is equal to or greater than 0.10 inches and less than or equal to 0.15 inches, the faulting rating for the pavement section is Fair; and (C) If the faulting value of a section is greater than 0.15 inches, the faulting rating for the pavement section is Poor. (4) The FHWA will determine that a reported section in HPMS has a missing, invalid or unresolved data on the dates specified in § 490.317(b) for Interstate System and § 490.109(d)(2) and (d)(4) for non-Interstate NHS, if a reported section does not meet any one of the data requirements specified in §§ 490.309 and 490.311(c) or that reported section does not provide sufficient data to determine its Overall Condition specified in paragraphs (c) through (f) of this section: (i) Total mainline lane-miles of missing, invalid, or unresolved sections for Interstate System and non-Interstate NHS shall be limited to no more than 5 percent of the total lane miles less the sections excluded in § 490.313(f)(1). For each pavement section without collected its condition metrics and inventory data, State DOTs shall note in the HPMS submittal with a specific code identified in the HPMS Field Manual (incorporated by reference, see § 490.111) noting the reason it was not collected. (ii) Calculation of overall pavement conditions in any State meeting the requirements of § 490.309(b) shall be based only on sections containing data reported in the HPMS Submittal as of the submission dates required in § 490.311(c)(4) and (5). State DOTs not meeting the requirements of § 490.309(b) will be considered as not in compliance with § 420.105(b) requiring State DOTs to submit data to the HPMS and not in compliance with § 490.107 requiring reporting on performance targets. Failure to report data meeting the requirements of § 490.309(b) by the submission dates for the Interstate System will be considered as not meeting the minimum requirements for pavement conditions on the Interstate System and that State DOT is subject to the penalties in § 490.315. (c) The Overall condition for asphalt and jointed concrete pavement sections shall be determined based on the ratings for IRI, Cracking_Percent, rutting and faulting, as described in paragraphs (b)(1), (b)(2), (b)(3) and (b)(4) of this section, respectively, for each section as follows: (1) A pavement section shall be rated an overall condition of Good only if the section is exhibiting Good ratings for all three conditions (IRI, Cracking_Percent, and rutting or faulting); PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 (2) A pavement section shall be rated an overall condition of Poor if two or more of the three conditions are exhibiting Poor ratings (at least two ratings of Poor for IRI, Cracking_Percent, and rutting or faulting). (3) A pavement section shall be rated an overall condition of Fair if it does not meet the criteria in paragraphs (c)(1) or (c)(2) of this section. (4) For sections on roadways where the posted speed limit is less than 40 MPH and where the State DOT has reported PSR in lieu of the IRI, Cracking_Percent, rutting, and faulting metrics the PSR condition level shall be determined using the following criteria: (i) If the PSR of a section is equal to or greater than 4.0 the PSR rating for the pavement section is Good; (ii) If the PSR of a section is less than 4.0 and greater than 2.0 the PSR rating for the pavement section is Fair; and (iii) If the PSR of a section is less than or equal to 2.0 the PSR rating for the pavement section is Poor. (d) The Overall condition for CRCP sections shall be determined based on two ratings of IRI and Cracking_Percent, as described in paragraphs (b)(1) and (b)(2) of this section or based on PSR where appropriate as described in paragraph (c)(4) of this section, respectively, for each section as follows: (1) A pavement section shall be rated an overall condition of Good only if the section is exhibiting Good ratings for both conditions (IRI and Cracking_ Percent); (2) A pavement section shall be rated an overall condition of Poor if it exhibits Poor ratings for both conditions (IRI and Cracking_Percent); (3) A pavement section shall be rated an overall condition of Fair if it does not meet the criteria in paragraphs (d)(1) or (d)(2) of this section. (4) For pavement sections that are on roadways with a posted speed limit of less than 40 MPH where the State DOT reported the PSR metric in lieu of the IRI, Cracking_Percent, faulting, and rutting metrics the pavement section shall be rated an overall condition equal to the PSR condition rating as described in section (c)(4) above (e) State DOTs shall not be subject to paragraphs (c) and (d) of this section for Pavements on the until after the data collection cycle ending December 31, 2018, for Interstate highways and December 31, 2021, for the nonInterstate NHS. During this transition period, the Overall condition for all pavement types will be based on IRI rating, as described in paragraph (b)(1) of this section, or on PSR as described in paragraphs (c)(4) or (d)(4) of this section. E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations 5967 (1) Bridges shall be excluded prior to computing all pavement condition measures by removing the sections where the Structure_Type data item in the HPMS is coded as 1. Sections that have an unpaved surface or an ‘‘other’’ surface type (such as cobblestone, planks, brick) shall be excluded prior to computing all pavement condition measures by removing the sections where the Surface Type data item in the HPMS is coded as 1 or as 11. (2) For § 490.307(a)(1) the measure for percentage of lane-miles of the Interstate System in Good condition shall be computed to the one tenth of a percent as follows: Where: Good = total number of mainline highway Interstate System sections where the overall condition is Good; g = a section’s overall condition is determined Good per paragraphs (b) or (c) of this section; t = an Interstate System section; Total = total number of mainline highway Interstate System sections excluding bridges, unpaved surface and ‘‘other’’ surface types, and missing data sections, described in paragraph (f)(1) and (b)(4)(i) of this section. Begin_Point = Begin Milepost of each section g or t; End Point = End Milepost of each section g or t; and Through_lanes = the number of lanes designated for through-traffic represented by a section g or t. Where: Poor = total number of mainline highway Interstate System sections where the overall condition is Poor; p = a section’s overall condition is determined Poor per paragraphs (b) or (c) of this section; t = an Interstate System section; Total = total number of mainline highway Interstate System sections excluding bridges, unpaved surface and ‘‘other’’ surface types, and missing data sections, described in paragraph (f)(1) and (b)(4)(i) of this section; Begin_Point = Begin Milepost of each section p or t; End Point = End Milepost of each section p or t; and Through_lanes = the number of lanes designated for through-traffic represented by a section p or t. Where: Good = total number of mainline highway non-Interstate NHS sections where the overall condition is Good; g = a section’s overall condition is determined Good per paragraphs (b), (c) or (d) of this section; t = a non-Interstate NHS section; Total = total number of mainline highway non-Interstate NHS sections excluding bridges, unpaved surface and ‘‘other’’ surface types, and missing data sections, described in paragraph (f)(1) and (b)(4)(i) of this section; Begin_Point = Begin Milepost of each section g or t; End Point = End Milepost of each section g or t; and Through_lanes = the number of lanes designated for through-traffic represented by a section g or t. Where: Poor = total number of mainline highway non-Interstate NHS sections where the overall condition is Poor; p = a section’s overall condition is determined Poor per paragraphs (b), (c) or (d) of this section; VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 (3) For § 490.307(a)(2) the measure for percentage of lane-miles of the Interstate System in Poor condition shall be computed to the one tenth of a percent as follows: E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.020</GPH> ER18JA17.021</GPH> (5) For § 490.307(a)(4) the measure for percentage of lane-miles of the nonInterstate NHS in Poor condition in § 490.307(a)(4) shall be computed to the one tenth of a percent as follows: ER18JA17.022</GPH> (4) For § 490.307(a)(3) the measure for percentage of lane-miles of the nonInterstate NHS in Good condition in § 490.307(a)(3) shall be computed to the one tenth of a percent as follows: ER18JA17.019</GPH> mstockstill on DSK3G9T082PROD with RULES5 (f) The pavement condition measures in § 490.307 shall be computed as described below. The measures shall be used for establishing targets in accordance with § 490.105 and reporting the conditions of the pavements in the biennial performance reporting required in § 490.107 as follows: 5968 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations t = a non-Interstate NHS section; Total = total number of mainline highway non-Interstate NHS sections excluding bridges, unpaved surface and ‘‘other’’ surface types, and missing data sections, described in paragraph (f)(1) and (b)(4)(i) of this section; Begin_Point = Begin Milepost of each section p or t; End Point = End Milepost of each section p or t; and Through_lanes = the number of lanes designated for through-traffic represented by a section p or t. § 490.315 Establishment of minimum level for condition of pavements. (a) For the purposes of carrying out the requirements of 23 U.S.C. 119(f)(1), the percentage of lane-miles of Interstate System in Poor condition, as computed per § 490.313(e)(3), shall not exceed 5.0 percent except as noted in paragraph (b) of this section. (b) For the purposes of carrying out the requirements of 23 U.S.C. 119(f)(1), the percentage of lane-miles of Interstate System in Poor condition within the State of Alaska, as computed per § 490.313(e)(3), shall not exceed 10.0 percent. mstockstill on DSK3G9T082PROD with RULES5 § 490.317 Penalties for not maintaining minimum Interstate System pavement condition. (a) The FHWA shall compute the Percentage of lane-miles of the Interstate System, excluding sections on bridges, in Poor Condition, in accordance with § 490.313(e)(3), for each State annually. (b) Each year, FHWA shall extract data contained within the HPMS on June 15 that represents conditions from the prior calendar year for Interstate System pavement conditions to carry out paragraph (a) of this section, beginning with data collected during the 2018 calendar year. (c) The FHWA shall determine if a State DOT is in compliance with § 490.315(a) or § 490.315(b) and 23 U.S.C. 119(f)(1) after the first full year of data collection for the Interstate System and each year thereafter. (d) The FHWA will notify State DOTs of their compliance with 23 U.S.C. 119(f)(1) prior to October 1 of the year in which the determination was made. (e) If FHWA determines through conduct of paragraph (d) of this section a State DOT to be out of compliance with 23 U.S.C. 119(f)(1) then the State DOT shall, during the following fiscal year: (1) Obligate, from the amounts apportioned to the State DOT under 23 U.S.C. 104(b)(1) (for the NHPP), an amount that is not less than the amount of funds apportioned to the State for Federal fiscal year 2009 under the Interstate Maintenance program for the VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 purposes described in 23 U.S.C. 119 (as in effect on the day before the date of enactment of the MAP–21), except that for each year after Federal fiscal year 2013, the amount required to be obligated under this clause shall be increased by 2 percent over the amount required to be obligated in the previous fiscal year; and (2) Transfer, from the amounts apportioned to the State DOT under 23 U.S.C. 104(b)(2) (for the Surface Transportation Program) (other than amounts sub-allocated to metropolitan areas and other areas of the State under 23 U.S.C. 133(d)) to the apportionment of the State under 23 U.S.C. 104(b)(1), an amount equal to 10 percent of the amount of funds apportioned to the State for fiscal year 2009 under the Interstate Maintenance program for the purposes described in 23 U.S.C. 119 (as in effect on the day before the date of enactment of the MAP–21). § 490.319 Other requirements. (a) In accordance with the HPMS Field Manual (incorporated by reference, see § 490.111), each State DOT shall report the following to the HPMS no later than April 15 each year: (1) The pavement condition metrics specified in § 490.311 that are necessary to calculate the Interstate System condition measures identified in §§ 490.307(a)(1) and (a)(2) and; (2) The data elements specified in § 490.309(c) for the Interstate System (b) In accordance with the HPMS Field Manual (incorporated by reference, see § 490.111), each State DOT shall report to the HPMS no later than June 15 each year the pavement condition metrics specified in § 490.311 that are necessary to calculate the nonInterstate NHS condition measures in §§ 490.307(a)(3) and (a)(4). (c) Each State DOT shall develop and utilize a Data Quality Management Program, approved by FHWA that addresses the quality of all data collected, regardless of the method of acquisition, to report the pavement condition metrics, discussed in § 490.311, and data elements discussed in § 490.309(c). (1) In a Data Quality Management Programs, State DOTs shall include, at a minimum, methods and processes for: (i) Data collection equipment calibration and certification; (ii) Certification process for persons performing manual data collection; (iii) Data quality control measures to be conducted before data collection begins and periodically during the data collection program; (iv) Data sampling, review and checking processes; and PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 (v) Error resolution procedures and data acceptance criteria. (2) Not later than 1 year after the effective date of this regulation, State DOTs shall submit their Data Quality Management Program to FHWA for approval. Once FHWA approves a State DOT’s Data Quality Management Program, the State DOT shall use that Program to collect and report data required by §§ 490.309 to 490.311. State DOTs also shall submit any proposed significant change to the Data Quality Management Program to FHWA for approval prior to implementing the change. ■ 4. Add subpart D to read as follows: Subpart D—National Performance Management Measures for Assessing Bridge Condition Sec. 490.401 Purpose. 490.403 Applicability. 490.405 Definitions. 490.407 National performance management measures for assessing bridge condition. 490.409 Calculation of National performance management measures for assessing bridge condition. 490.411 Establishment of minimum level for condition for bridges. 490.413 Penalties for not maintaining bridge condition. Subpart D—National Performance Management Measures for Assessing Bridge Condition § 490.401 Purpose. The purpose of this subpart is to implement the requirements of 23 U.S.C. 150(c)(3)(A)(ii)(III), which requires the Secretary of Transportation to establish performance measures for the purpose of carrying out the NHPP and for State DOTs and MPOs to use in assessing the condition of bridges carrying the NHS which includes onand off-ramps connected to the NHS. § 490.403 Applicability. The section is only applicable to bridges carrying the NHS, which includes on- and off-ramps connected to the NHS. § 490.405 Definitions. The following definitions are only applicable to this subpart, unless otherwise provided: Structurally deficient as used in §§ 490.411 and 490.413 is a classification given to a bridge which has any component in Poor or worse condition or the adequacy of the waterway opening provided by the bridge is determined to be insufficient to the point of causing overtopping with intolerable traffic interruptions. Beginning with calendar year 2018 and E:\FR\FM\18JAR5.SGM 18JAR5 Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations thereafter, structurally deficient as used in §§ 490.411 and 490.413 is a classification given to a bridge which has any component in Poor or worse condition. § 490.407 National performance management measures for assessing bridge condition. (a) There are three classifications for the purpose of assessing bridge condition. They are: (1) Percentage of NHS bridges classified as in Good condition; (2) Percentage of NHS bridges classified as in Fair condition; and (3) Percentage of NHS bridges classified as in Poor condition. (b) [Reserved] (c) To carry out the NHPP, two of the three classifications are performance measures for State DOTs to use to assess bridge condition on the NHS. They are: (1) Percentage of NHS bridges classified as in Good condition; and (2) Percentage of NHS bridges classified as in Poor condition. (d) Determination of Good and Poor conditions are described in § 490.409. § 490.409 Calculation of National performance management measures for assessing bridge condition. (a) The bridge measures in § 490.407 shall be calculated in accordance with this section and used by State DOTs and MPOs to carry out the bridge condition related requirements of this part and by FHWA to make the significant progress determination specified in § 490.109. (b) The condition of bridges carrying the NHS, which includes on- and offramps connected to the NHS, shall be classified as Good, Fair, or Poor following the criteria specified in this paragraph. The assignment of a classification of Good, Fair, or Poor shall be based on the bridge’s condition ratings for NBI Items 58—Deck, 59— Superstructure, 60—Substructure, and 62—Culverts. For the purposes of national performance measures under the NHPP, the method of assessment to determine the classification of a bridge will be the minimum of condition rating method (i.e., the condition ratings for lowest rating of a bridge’s 3 NBI Items, 58—Deck, 59—Superstructure, and 60— Substructure). For culverts, the rating of its NBI Item, 62—Culverts, will determine its classification. The bridges carrying the NHS which includes onand off-ramps connected to the NHS 5969 will be classified as Good, Fair, or Poor based on the following criteria: (1) Good: When the lowest rating of the 3 NBI items for a bridge (Items 58— Deck, 59—Superstructure, 60— Substructure) is 7, 8, or 9, the bridge will be classified as Good. When the rating of NBI item for a culvert (Item 62—Culverts) is 7, 8, or 9, the culvert will be classified as Good. (2) Fair: When the lowest rating of the 3 NBI items for a bridge is 5 or 6, the bridge will be classified as Fair. When the rating of NBI item for a culvert is 5 or 6, the culvert will be classified as Fair. (3) Poor: When the lowest rating of the 3 NBI items for a bridge is 4, 3, 2, 1, or 0, the bridge will be classified as Poor. When the rating of NBI item for a culvert is 4, 3, 2, 1, or 0, the culvert will be classified as Poor. (c) The bridge measures specified in § 490.407(c) shall be calculated for the applicable bridges per paragraph (a) that pertain to each target established by the State DOT or MPO in §§ 490.105(e) and 490.105(f), respectively, as follows: (1) For § 490.407(c)(1), the measure for the percentage of bridges classified as in Good condition shall be computed and reported to the one tenth of a percent as follows: Width = corresponding value of NBI Item 52—Deck Width or value of Item 32 Approach Roadway Width for culverts where the roadway is on a fill [i.e., traffic does not directly run on the top slab (or wearing surface) of the culvert] and the headwalls do not affect the flow of traffic for every applicable bridge. s = an applicable bridge per paragraph (b) of this section; and TOTAL = total number of the applicable bridges specified in paragraph (b) of this section. Where: POOR = total number of the applicable bridges, where their condition is Poor per paragraph (b)(3) of this section; p = a bridge determined to be in Poor condition per paragraph (b)(3) of this section; Length = corresponding value of NBI Item 49—Structure Length for every applicable bridge; Width = corresponding value of NBI Item 52—Deck Width or value of Item 32 Approach Roadway Width for culverts where the roadway is on a fill [i.e., traffic does not directly run on the top slab (or wearing surface) of the culvert] and the headwalls do not affect the flow of traffic for every applicable bridge. s = an applicable bridge per paragraph (b) of this section; and TOTAL = total number of the applicable bridges specified in paragraph (b) of this section. report targets and conditions described in § 490.107. (e) The NBI Items included in this section are found in the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, which is incorporated by reference (see § 490.111). VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 (d) The measures identified in § 490.407(c) shall be used to establish targets in accordance with § 490.105 and PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.024</GPH> (2) For § 490.407(c)(2), the measure for the percentage of bridges classified as in Poor condition shall be computed and reported to the one tenth of a percent as follows: ER18JA17.023</GPH> mstockstill on DSK3G9T082PROD with RULES5 Where: GOOD = total number of the applicable bridges, where their condition is Good per paragraph (b)(1) of this section; g = a bridge determined to be in Good condition per paragraph (b)(1) of this section; Length = corresponding value of NBI Item 49—Structure Length for every applicable bridge; Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 / Rules and Regulations § 490.411 Establishment of minimum level for condition for bridges. (a) State DOTs will maintain bridges so that the percentage of the deck area of bridges classified as Structurally Deficient does not exceed 10.0 percent. This minimum condition level is applicable to bridges carrying the NHS, which includes on- and off-ramps connected to the NHS within a State, and bridges carrying the NHS that cross a State border. (b) For the purposes of carrying out this section and § 490.413, a bridge will mstockstill on DSK3G9T082PROD with RULES5 Where: Structurally Deficient = total number of the applicable bridges, where their classification is Structurally Deficient per this section and § 490.413; SD = a bridge classified as Structurally Deficient per this section and § 490.413; Length = corresponding value of NBI Item 49—Structure Length for every applicable bridge; Width = corresponding value of NBI Item 52—Deck Width Beginning with calendar year 2018 and thereafter, Width = corresponding value of NBI Item 52—Deck Width or value of Item 32 Approach Roadway Width for culverts where the roadway is on a fill [i.e., traffic does not directly run on the top slab (or wearing surface) of the culvert] and the headwalls do not affect the flow of traffic for every applicable bridge. s = an applicable bridge per this section and § 490.413; and TOTAL = total number of the applicable bridges specified in this section and § 490.413. (d) The FHWA will annually determine the percentage of the deck area of NHS bridges classified as Structurally Deficient for each State DOT and identify State DOTs that do not meet the minimum level of condition for NHS bridges based on data cleared in the NBI as of June 15 of each year. The FHWA will notify State DOTs of their compliance with 23 U.S.C. 119(f)(2) prior to October 1 of the year in which the determination was made. (e) For the purposes of carrying out this section, State DOTs will annually submit their most current NBI data on highway bridges to FHWA no later than March 15 of each year. (f) The NBI Items included in this section are found in the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation’s Bridges, which is incorporated by reference (see § 490.111). VerDate Sep<11>2014 22:01 Jan 17, 2017 Jkt 241001 be classified as Structurally Deficient when one of its NBI Items, 58—Deck, 59—Superstructure, 60—Substructure, or 62—Culverts, is 4 or less, or when one of its NBI Items, 67—Structural Evaluation or 71—Waterway Adequacy, is 2 or less. Beginning with calendar year 2018 and thereafter, a bridge will be classified as Structurally Deficient when one of its NBI Items, 58—Deck, 59—Superstructure, 60—Substructure, or 62—Culverts, is 4 or less. (c) For all bridges carrying the NHS, which includes on- and off-ramps connected to the NHS and bridges carrying the NHS that cross a State border, FHWA shall calculate a ratio of the total deck area of all bridges classified as Structurally Deficient to the total deck area of all applicable bridges for each State. The percentage of deck area of bridges classified as Structurally Deficient shall be computed by FHWA to the one tenth of a percent as follows: § 490.413 Penalties for not maintaining bridge condition. DEPARTMENT OF TRANSPORTATION (a) If FHWA determines for the 3-year period preceding the date of the determination, that more than 10.0 percent of the total deck area of bridges in the State on the NHS is located on bridges that have been classified as Structurally Deficient, the following requirements will apply. (1) During the fiscal year following the determination, the State DOT shall obligate and set aside in an amount equal to 50 percent of funds apportioned to such State for fiscal year 2009 to carry out 23 U.S.C. 144 (as in effect the day before enactment of MAP– 21) from amounts apportioned to a State for a fiscal year under 23 U.S.C. 104(b)(1) only for eligible projects on bridges on the NHS. (2) The set-aside and obligation requirement for bridges on the NHS in a State in paragraph (a) of this section for a fiscal year shall remain in effect for each subsequent fiscal year until such time as less than 10 percent of the total deck area of bridges in the State on the NHS is located on bridges that have been classified as Structurally Deficient as determined by FHWA. (b) The FHWA will make the first determination by October 1, 2016, and each fiscal year thereafter. [FR Doc. 2017–00550 Filed 1–12–17; 4:15 pm] BILLING CODE 4910–22–P PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 Federal Highway Administration 23 CFR Part 490 [Docket No. FHWA–2013–0054] RIN 2125–AF54 National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: This final rule is the third and last in a series of three related rulemakings that together establishes a set of performance measures for State departments of transportation (State DOT) and Metropolitan Planning Organizations (MPO) to use as required by the Moving Ahead for Progress in the 21st Century Act (MAP–21) and the Fixing America’s Surface Transportation (FAST) Act. The measures in this third final rule will be used by State DOTs and MPOs to assess the performance of the Interstate and non-Interstate National Highway System (NHS) for the purpose of carrying out the National Highway Performance Program (NHPP); to assess freight movement on the Interstate System; and to assess traffic congestion and on-road mobile source emissions for the purpose of carrying out the Congestion Mitigation and Air Quality Improvement (CMAQ) Program. This third performance measure final rule also includes a discussion that summarizes all three of the national performance management measures SUMMARY: E:\FR\FM\18JAR5.SGM 18JAR5 ER18JA17.025</GPH> 5970

Agencies

[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Rules and Regulations]
[Pages 5886-5970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00550]



[[Page 5885]]

Vol. 82

Wednesday,

No. 11

January 18, 2017

Part VI





 Department of Transportation





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Federal Highway Administration





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 23 CFR Part 490





National Performance Management Measures; Assessing Pavement Condition 
for the National Highway Performance Program and Bridge Condition for 
the National Highway Performance Program and Assessing Performance of 
the National Highway System, Freight Movement on the Interstate System, 
and Congestion Mitigation and Air Quality Improvement Program; Final 
Rules

Federal Register / Vol. 82 , No. 11 / Wednesday, January 18, 2017 / 
Rules and Regulations

[[Page 5886]]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 490

[Docket No. FHWA-2013-0053]
RIN 2125-AF53


National Performance Management Measures; Assessing Pavement 
Condition for the National Highway Performance Program and Bridge 
Condition for the National Highway Performance Program

AGENCY: Federal Highway Administration (FHWA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The purpose of this final rule is to establish measures for 
State departments of transportation (State DOT) to use to carry out the 
National Highway Performance Program (NHPP) and to assess the condition 
of the following: Pavements on the National Highway System (NHS) 
(excluding the Interstate System), bridges carrying the NHS which 
includes on- and off-ramps connected to the NHS, and pavements on the 
Interstate System. The NHPP is a core Federal-aid highway program that 
provides support for the condition and performance of the NHS and the 
construction of new facilities on the NHS. The NHPP also ensures that 
investments of Federal-aid funds in highway construction are directed 
to support progress toward the achievement of performance targets 
established in a State's asset management plan for the NHS. This final 
rule establishes regulations for the new performance aspects of the 
NHPP that address measures, targets, and reporting. The FHWA is in the 
process of creating a new public Web site to help communicate the 
national performance story. The Web site will likely include 
infographics, tables, charts, and descriptions of the performance data 
that State DOTs report to FHWA. The FHWA issues this final rule based 
on sec. 1203 of MAP-21, which identifies national transportation goals 
and requires the Secretary to promulgate rules to establish performance 
measures and standards in specified Federal-aid highway program areas.

DATES: This final rule is effective February 17, 2017. The 
incorporation by reference of certain publications listed in the 
regulation is approved by the Director of the Federal Register as of 
February 17, 2017.

FOR FURTHER INFORMATION CONTACT: For technical information: Francine 
Shaw Whitson, Office of Infrastructure, 202-366-8028. For legal 
information: Anne Christenson, Office of Chief Counsel, 202-366-0740, 
Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, 
DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION

Electronic Access and Filing

    The notice of proposed rulemaking (NPRM) was published at 80 FR 326 
on January 5, 2015, and all comments received may be viewed online at 
http://www.regulations.gov. Electronic retrieval help and guidelines 
are available on the Web site. It is available 24 hours each day, 365 
days each year. An electronic copy of this document may also be 
downloaded from the Office of the Federal Register's Web site at http://www.orf.gov and the Government Printing Office's Web site at http://www.gpo.gov.

Table of Contents for Supplementary Information

I. Executive Summary
    A. Incorporating the FAST Act
    B. Purpose of the Regulatory Action
    C. Summary of Major Provisions of the Regulatory Action in 
Question
    D. Costs and Benefits
II. Acronyms and Abbreviations
III. Background
IV. Summary of the NPRM
V. Discussion of Comments
    A. Summary of Comments
    B. Discussion of Public Comments
VI. Section-by-Section Discussion of the General Information and 
National Performance Management Measures for the National Highway 
Performance Program: Pavement and Bridge
    A. Subpart A--General Information
    B. Subpart C--National Performance Management Measures for the 
NHPP Pavement Performance Measures
    C. Subpart D--National Performance Management Measures for the 
NHPP Bridge Performance Measures
VII. Rulemaking Analyses and Notices

I. Executive Summary

A. Incorporating the FAST Act

    On December 4, 2015, the President signed the Fixing America's 
Surface Transportation Act (FAST) Act (Pub. L. 114-94) into law. For 
the most part, the FAST Act is consistent with the new performance 
management elements introduced by MAP-21. For convenience and accurate 
historical context, this rule will refer to MAP-21 throughout the 
preamble to signify the fundamental changes MAP-21 made to States' 
authorities and responsibilities for overseeing the implementation of 
performance management. For this final rule, there are two areas where 
the FAST Act made changes to performance management requirements.
    The first change is sec. 119(e)(7), title 23, United States Code 
(23 U.S.C. 119(e)(7)), which relates to the requirement for a 
significant progress determination for NHPP targets. The FAST Act 
amended this provision to remove the term ``2 consecutive reports.'' 
The FHWA has incorporated this change into the final rule by removing 
the term ``2 consecutive determinations,'' which was proposed in 
section 490.109(f) of the NPRM, published January 5, 2015 (80 FR 326). 
In section 490.109(f) of the NPRM, FHWA proposed that if FHWA 
determines that a State DOT has not made significant progress toward 
achieving NHPP targets in two consecutive FHWA determinations, then 
that State DOT would document the actions it will take to achieve the 
targets in its next Biennial Performance Report. The FAST Act changed 
this requirement. Due to the FAST Act, the final rule requires State 
DOTs to take action when they do not make significant progress for each 
biennial determination (instead of 2 consecutive biennial 
determinations) made by FHWA.
    The second change made by the FAST Act is removal of the term ``2 
consecutive reports'' in 23 U.S.C. 119(f)(1)(A), which relates to 
triggering the penalty for Interstate pavement condition that has 
fallen below the minimum condition level established under this rule. 
In section 490.317 of the NPRM, FHWA proposed that it would determine 
annually whether or not a State DOT's Interstate pavement condition is 
below the minimum condition level. If FHWA determines that a State 
DOT's Interstate pavement condition is below the minimum condition 
level for the ``most recent 2 years,'' then that State DOT would be 
subject to the penalty under 23 U.S.C. 119(f)(1)(A). A description and 
example application on this penalty is available for review on the 
docket. Due to the FAST Act, the final rule subjects State DOTs to the 
penalty under 23 U.S.C. 119(f)(1)(A) if FHWA determines that its 
Interstate pavement condition has fallen below the minimum condition 
level for the most recent year (instead of most recent 2 years).

B. Purpose of the Regulatory Action

    The MAP-21 (Pub. L. 112-141) transforms the Federal-aid highway 
program by establishing new requirements for performance

[[Page 5887]]

management to ensure the most efficient investment of Federal 
transportation funds. Performance management increases the 
accountability and transparency of the Federal-aid highway program and 
provides a framework to support improved investment decisionmaking 
through a focus on performance outcomes for key national transportation 
goals.
    As part of performance management, recipients of Federal-aid 
highway funds will make transportation investments to achieve 
performance targets that make progress toward national goals. The 
national performance goal for bridge and pavement condition is to 
maintain the condition of highway infrastructure assets in a state of 
good repair. The purpose of this final rule is to implement MAP-21 and 
FAST Act performance management requirements.
    Prior to MAP-21, there were no explicit requirements for State DOTs 
to demonstrate how their transportation program supported national 
performance outcomes. State DOTs were not required to measure condition 
or performance, establish targets, assess progress toward targets, or 
report on condition or performance in a nationally consistent manner 
that FHWA could use to assess the entire system. Without State DOTs 
reporting on the above factors, it is difficult for FHWA to look at the 
effectiveness of the Federal-aid highway program as a means to address 
surface transportation performance at a national level.
    This final rule is one of several rulemakings that DOT has or is 
conducting to implement MAP-21's new performance management framework. 
The collective rulemakings will establish the regulations needed to 
more effectively evaluate and report on surface transportation 
performance across the Nation. This final rule will:
     Require State DOTs to maintain their bridges and pavements 
at or above a minimum condition level;
     Provide for greater consistency in the reporting of 
condition and performance;
     Require the establishment of targets that can be 
aggregated at the national level;
     Improve transparency by requiring consistent reporting on 
progress through a public reporting system;
     Require State DOTs to make significant progress toward 
meeting their targets; and
     Establish requirements for State DOTs that have not met or 
made significant progress toward meeting their targets.
    State DOTs and metropolitan planning organizations (MPO) will be 
expected to use the information and data generated as a result of the 
new regulations to inform their transportation planning and programming 
decisions. The new performance aspects of the Federal-aid highway 
program that result from this rule will provide FHWA the ability to 
better communicate a national performance story and to more reliably 
assess the impacts of Federal funding investments. The FHWA is in the 
process of creating a new public Web site to help communicate the 
national performance story. The Web site will likely include 
infographics, tables, charts, and descriptions of the performance data 
that State DOTs would be reporting to FHWA.
    The FHWA is required to establish performance measures to assess 
performance in 12 areas \1\ generalized as follows: (1) Serious 
injuries per vehicle miles traveled (VMT); (2) fatalities per VMT; (3) 
number of serious injuries; (4) number of fatalities; (5) pavement 
condition on the Interstate System; (6) pavement condition on the non-
Interstate NHS; (7) bridge condition on the NHS; (8) traffic 
congestion; (9) on-road mobile source emissions; (10) freight movement 
on the Interstate System; (11) performance of the Interstate System; 
and (12) performance of the non-Interstate NHS. This rulemaking is the 
second of three that establish performance measures for State DOTs and 
MPOs to use to carry out Federal-aid highway programs and to assess 
performance in each of these 12 areas. This final rule establishes 
national measures for pavement condition on the Interstate System and 
non-Interstate NHS and bridge condition on the NHS (numbers 5, 6 and 7 
in the above list). Other rulemakings have or will establish national 
measures for the remaining areas.
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    \1\ These areas are listed within 23 U.S.C. 150(c), which 
requires the Secretary to establish measures to assess performance 
or condition.
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    State DOTs will be required to establish performance targets and 
assess performance in 12 areas \2\ established by MAP-21, and FHWA will 
assess \3\ their progress toward meeting targets in 10 of these areas 
\4\ in accordance with MAP-21 and the FAST Act. State DOTs that fail to 
meet or make significant progress toward meeting pavement and bridge 
condition performance targets in a biennial performance reporting 
period will be required to document the actions they will undertake to 
achieve their targets in their next biennial performance report.
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    \2\ These areas are listed within 23 U.S.C. 150(c), which 
requires the Secretary to establish measures to assess performance 
or condition.
    \3\ 23 U.S.C. 148(i) and 23 U.S.C. 119(e)(7).
    \4\ Serious injuries per vehicle VMT; fatalities per VMT; number 
of serious injuries; number of fatalities; pavement condition on the 
Interstate System; pavement condition on the non-Interstate NHS; 
bridge condition on the NHS; performance of the Interstate System; 
and performance of the non-Interstate NHS under MAP-21. Freight 
movement on the Interstate System under the FAST Act.
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    This final rule establishes performance measures to assess pavement 
and bridge conditions on the Interstate System and non-Interstate NHS 
for the purpose of carrying out the NHPP. The four measures to assess 
pavement condition are: (1) Percentage of pavements on the Interstate 
System in Good condition; (2) percentage of pavements on the Interstate 
System in Poor condition; (3) percentage of pavements on the NHS 
(excluding the Interstate System) in Good condition; and (4) percentage 
of pavements on the NHS (excluding the Interstate System) in Poor 
condition. The two performance measures for assessing bridge condition 
are: (1) Percentage of NHS bridges classified as in Good condition; and 
(2) percentage of NHS bridges classified as in Poor condition.
    This final rule also establishes the minimum level for pavement 
condition for the Interstate System as required by the statute and 
incorporates the minimum condition level for bridges carrying the NHS 
which includes on- and off-ramps connected to the NHS as established by 
the statute. In addition, this final rule establishes the process for 
State DOTs and MPOs to use to establish and report targets and the 
process that FHWA will use to assess the progress State DOTs have made 
in achieving targets.
    Lastly, FHWA recognizes that implementation of the performance 
management requirements in this final rule will evolve with time for a 
variety of reasons such as: The introduction of new technologies that 
allow for the collection of more nationally consistent and/or reliable 
performance data; shifts in national priorities for the focus of a goal 
area; new federal requirements; or the emergence of improved approaches 
to measure condition/performance in supporting investment decisions and 
national goals. The FHWA is committed to performing a retrospective 
review of this rule after the first performance period, to assess the 
effectiveness of the requirements to identify any necessary changes to 
better support investment decisions through performance-based planning 
and programming and to ensure the most efficient investment of Federal 
transportation funds. In implementation of this rule, FHWA realizes 
that there are multiple ways that State DOTs and MPOs can make

[[Page 5888]]

decisions to achieve more efficient and cost effective investments; as 
part of a retrospective review, FHWA will also utilize implementation 
surveys to identify how agencies complying with the rule are developing 
their programs and selecting their projects to achieve targets.

C. Summary of the Major Provisions of the Regulatory Action in Question

    This final rule retains the majority of the major provisions of the 
NPRM but makes significant changes by:
     Originally anticipating the rule's effective date as fall 
2016, FHWA has now postponed the Baseline Performance Period Report and 
subsequent biennial reports by 2 years relative to those described in 
the NPRM (i.e., from 2016 to 2018);
     Removing the requirements for State DOTs to declare and 
describe NHS limits in their Baseline Performance Period Report;
     Adding guidance for MPO target establishment to address 
situations where metropolitan planning areas extend across multiple 
States;
     Removing the requirement to use the Metropolitan Planning 
Agreement as the means to document how MPOs report their established 
and adjusted targets to their respective State DOTs;
     Clarifying the list of extenuating circumstances that may 
prevent a State DOT from making significant progress to include the 
sudden discontinuation of federally furnished data due to lack of 
Federal funding;
     Removing references to provisional American Association of 
State Highway and Transportation Officials (AASHTO) standards to ensure 
consistency in reporting year over year (including references to PP68-
14, PP69-14, and PP70-14);
     Providing an option for State DOTs to report Present 
Serviceability Rating (PSR) for highways with a posted speed limit 
under 40 miles per hour (MPH) in place of International Roughness Index 
(IRI), cracking, rutting, and faulting;
     Changing the threshold for pavements with Poor IRI 
condition to greater than 170 inches per mile for all areas, rather 
than the NPRM's proposed threshold of 220 inches per mile for urbanized 
areas with a population greater than 1 million people;
     Changing the threshold for Poor crack rating for asphalt 
pavement sections from greater than 10 percent to greater than 20 
percent and the threshold for Poor crack rating for jointed concrete 
pavement sections from greater than 10 percent to greater than 15 
percent;
     Changing the threshold for Good faulting rating for 
jointed concrete pavement sections from less than 0.05 inch to less 
than 0.1 inch;
     Revising the network coverage of data reporting 
requirements for Interstate pavement condition from both directions of 
mainline highways to single, inventory direction of mainline highways;
     Changing the approach in dealing with missing, unresolved, 
or invalid pavement data;
    [cir] Removing the proposed language on rating sections with 
missing, unresolved, or invalid data as Poor condition; and
    [cir] Revising the requirements for reporting on sections with 
missing, unresolved, or invalid data. In the final rule, no more than 5 
percent of the network is to be represented with missing, unresolved, 
or invalid data due to construction, closure, disaster, flood, 
deterioration or any other reasons;
     Revising the equation for calculating the percentage of 
missing, unresolved, or invalid data so that it is based on total lane-
miles of the system excluding bridges and unpaved and ``other'' surface 
types instead of total lane-miles of the system;
     Adjusting the minimum condition standards for pavement 
condition on the Interstate highways for Alaska because Highway 
Performance Monitoring System (HPMS) data indicated that a regional 
adjustment was needed for this State;
     Revising the definition and computation for the 
classification of structurally deficient; and
     Providing a transition period for implementing the revised 
definition and computation for the classification of structurally 
deficient, and using the new calculations for deck area of culverts and 
border bridges.
    The FHWA updated these and other elements in this final rule based 
on the review and analysis of comments received. For additional detail 
on all the changes FHWA made in the final rule, please refer to Section 
VI of this document. The following is a summary of the final rule. 
Section references below refer to sections of the regulatory text for 
title 23 of the Code of Federal Regulations (23 CFR).
    This final rule adds to subpart A general information applicable to 
part 490, to include requirements for target establishment, reporting 
on progress, and how determinations would be made on whether State DOTs 
have made significant progress toward NHPP targets. Subpart A also 
includes definitions and clarifies terminology associated with target 
establishment, reporting, and making significant progress. Lastly, 
subpart A incorporates by reference the HPMS Field Manual, the 
Recording and Coding Guide for the Structure Inventory and Appraisal of 
the Nation's Bridges, Report No. FHWA-PD-96-001 (December 1995) and 
errata, and several of the AASHTO standards. Section 490.105 describes 
the process to be used by State DOTs and MPOs to establish targets for 
each of the four pavement and two bridge measures. The State DOTs will 
establish 2- and 4-year targets for a 4-year performance period for the 
condition of infrastructure assets. State DOTs will establish their 
first statewide targets 1 year after the effective date of this rule. 
The MPOs will establish targets by either supporting a State DOT's 
statewide target, or defining a target unique to the metropolitan area 
each time State DOTs establish a target. The MPOs have up to 180 days 
after State DOTs establish their pavement and bridge condition targets 
to establish their own targets. The FHWA has placed a timeline on the 
docket that illustrates how this transition could be implemented.
    Section 490.107 identifies performance reporting requirements for 
State DOTs and MPOs. The State DOT will submit its established targets 
in a baseline report at the beginning of the performance period and 
report progress at the midpoint and end of the performance period. 
State DOTs will be allowed to adjust their 4-year target at the 
midpoint of the performance period. The MPOs are not required to 
provide separate reporting to FHWA. However, State DOTs and MPOs will 
need to coordinate and mutually agree to a target establishment 
reporting process. Coordination will also be required between State 
DOTs and MPOs if a State DOT adjusts its 4-year target at the midpoint 
of the performance period.
    Section 490.109 establishes the method FHWA will use to determine 
if State DOTs have achieved or have made significant progress toward 
the achievement of their NHPP targets. Significant progress will be 
determined from an analysis of estimated condition/performance and 
measured condition/performance of each of the NHPP targets. If 
applicable, State DOTs will have the opportunity to discuss why targets 
were not achieved or significant progress was not made. If a State DOT 
fails to achieve significant progress in a biennial performance 
reporting period, then it is required to document the actions they will 
undertake to achieve their targets in the next biennial performance 
report (though encouraged to document sooner).

[[Page 5889]]

    Subparts C and D establish performance measures and other related 
requirements to assess pavement and bridge conditions. In subparts C 
and D, sections 490.305 and 490.405 establish program-specific 
definitions to ensure that the performance measures are clear and 
consistent.
    Sections 490.307 and 490.407 require that State DOTs and MPOs use a 
total of six measures to assess the condition of pavements and bridges 
on the NHS. The pavement measures will be applicable to both Interstate 
and non-Interstate NHS mainline roads and the bridge measures would be 
applicable for all bridges carrying the NHS which includes on- and off-
ramps connected to the NHS. Both the pavement and bridge measures will 
reflect the percentage of the system in Good and Poor condition. The 
measure calculations will utilize data documented in the HPMS and in 
the National Bridge Inventory (NBI).
    Section 490.315 establishes the minimum level for condition of 
pavements on the Interstate System as required by 23 U.S.C. 
150(c)(3)(A)(iii).
    Section 490.411 incorporates the minimum level for condition of 
bridges as required by 23 U.S.C. 119(f)(2).

D. Costs and Benefits

    The FHWA estimated the incremental costs associated with the new 
requirements that represent a change to current practices of State DOTs 
and MPOs.\5\ The FHWA also estimated the incremental costs associated 
with the new requirements proposed in this regulatory action. The new 
requirements represent a change to the current practices of State DOTs 
and MPOs. The FHWA derived the costs of the new requirements by 
assessing the expected increase in the level of labor effort for FHWA, 
State DOTs, and MPOs to standardize and update data collection and 
reporting systems and establish and report targets.
---------------------------------------------------------------------------

    \5\ See Table 4 in Section VII, Rulemaking Analysis and Notices.
---------------------------------------------------------------------------

    The FHWA derived the costs of each of these components by assessing 
the expected increase in level of labor effort and additional capital 
needed to standardize and update State DOT data collection and 
reporting systems and to establish and report targets. The FHWA sought 
opinions from pavement and bridge subject matter experts (SMEs) to 
estimate impacts of the final rule. Cost estimates were developed based 
on assumptions based on information received from SMEs.
    To estimate costs, FHWA multiplied the level of effort, expressed 
in labor hours, with a corresponding loaded wage rate that varied by 
the type of laborer needed to perform the activity.\6\ Where necessary, 
capital costs were also included. Following this approach, the 10-year 
undiscounted incremental costs to comply with this rule are $156.0 
million.
---------------------------------------------------------------------------

    \6\ Bureau of Labor Statistics Employee Cost Index, 2014.
---------------------------------------------------------------------------

    The final rule's 10-year undiscounted cost ($156.0 million in 2014 
dollars) decreased from the proposed rule ($196.4 million in 2012 
dollars). The FHWA made several changes that affected the cost 
estimate. These changes include updating costs to 2014 dollars from 
2012 dollars and labor costs to reflect current Bureau of Labor 
Statistics (BLS) data. In addition, FHWA revised the final rule 
Regulatory Impact Analysis (RIA) to reflect: (1) The deferment of the 
effective date; (2) the postponed implementation of establishing and 
updating performance targets, reporting on performance targets, and 
assessing significant progress toward achieving performance targets; 
(3) a decrease in the number of MPOs expected to establish quantifiable 
targets and upgrade software; (4) the costs of coordinating the 
establishment of targets in accordance with 23 CFR 450; (5) a decrease 
in pavement data collection requirements for State DOTs; and (6) added 
effort for State DOTs to collect data on the non-Interstate NHS.
    The FHWA expects that the rule will result in significant benefits, 
although they are not easily quantifiable. The rule will yield greater 
accountability because MAP-21 mandated reporting increases visibility 
and transparency. The data reported to FHWA will be consistent across 
the States and will be comprehensive, which will allow for a clear 
national picture of the status of pavement and bridge conditions. In 
addition, this data would be available to the public and would be used 
to communicate a national performance story. The FHWA is developing a 
public Web site to share performance related information. In addition, 
the rule will help focus the Federal-aid highway program on achieving 
balanced performance outcomes.
    The FHWA used a break-even analysis as the primary approach to 
quantify benefits. For both pavements and bridges, FHWA focused its 
analysis on vehicle operating costs (VOC) savings. The FHWA estimated 
the number of road miles of deficient pavement that will have to be 
improved (Table 5, Section VII, Rulemaking Analysis and Notices) and 
the number of posted bridges that will have to be avoided (Table 6, 
Section VII, Rulemaking Analysis and Notices) in order for the benefits 
of the rule to justify the costs. The results of the break-even 
analysis quantified the dollar value of the benefits that the rule must 
generate to outweigh the threshold value, the estimated cost of the 
rule, which is $156.0 million in undiscounted dollars. The results show 
that the rule must result in the net improvement of approximately 71 
miles of pavement (i.e., from Poor condition) from its current base 
case projection, and three 1-year-long bridge postings will need to be 
avoided over 10 years, to generate enough benefits to outweigh the cost 
of the rule. The FHWA believes that the benefits of this rule will 
surpass this threshold. Therefore, the benefits of the rule are 
anticipated to outweigh the costs.
    Relative to the proposed rule, the threshold for the pavement 
break-even analysis decreased in the final rule. Specifically, the 
number of NHS miles in Poor condition needing improvement to Fair 
condition decreased from 435 to 71 in the final rule. The break-even 
point was affected by an adjustment to the weighted average incremental 
cost per VMT related to maintenance and repair particularly by updating 
the VMT vehicle class weights, a decrease in the undiscounted 10-year 
cost of the pavement rule, an increase in the total VMT that are in 
poor, and an increase in the number of NHS miles estimated to be in 
poor condition based on more recent performance data.
    The threshold for the bridge break-even analysis increased in the 
final rule relative to the proposed rule. Specifically, the number of 
year-long bridge postings that need to be reduced increased from two to 
three in the final rule. The break-even point increased due to the 
following updates to input data:
     The average detour for bridges posted with weight limits 
of at least 40 percent below the legal load decreased from 20 miles to 
10.45 miles, and
     The percentage of trucks of total average annual daily 
traffic on posted bridges decreased from 12.6 percent to 9.7 percent.
    The below table displays the Office of Management and Budget (OMB) 
A-4 Accounting Statement as a summary of the cost and benefits 
calculated for this rule.

[[Page 5890]]



                                                              OMB A-4--Accounting Statement
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Estimates                                                Units
                                 --------------------------------------------------------------------------------------------------------------  Source/
            Category                                                                                       Discount  rate                       citation
                                       Primary             Low              High           Year dollar        (percent)       Period  covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Annualized Monetized ($       None............  None............  None............  NA..............  7...............  NA................   Not
     millions/year).              None............  None............  None............  NA..............  3...............  NA................  Quantifi
                                                                                                                                                 ed.
    Annualized Quantified.......  None............  None............  None............  NA..............  7...............  NA................   Not
                                  None............  None............  None............  NA..............  3...............  NA................  Quantifi
                                                                                                                                                 ed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Qualitative.................  With regard to the pavement condition measures, the rule is cost-beneficial if it results in the net          Final
                                   improvement of approximately 71 miles of pavement (i.e., from poor condition to good) per year, or 710       Rule
                                   miles over 10 years, from its current base case projection. With regard to the bridge condition measures,    RIA.
                                   0.3 year-long bridge postings will need to be avoided per year, or 3 year-long bridge postings over 10
                                   years, in order for benefits to justify costs. Because of these low thresholds, FHWA determines that the
                                   rule benefits outweigh the costs.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Annualized Monetized ($/      $17,100,924.....  ................  ................  2014............  7...............  10 Years..........  Final
     year).                       $16,232,012.....                                      2014............  3...............  10 Years..........  Rule
                                                                                                                                                RIA.
    Annualized Quantified.......  None............  None............  None............  2014............  7...............  10 Years..........  Final
                                  None............  None............  None............  2014............  3...............  10 Years..........  Rule
                                                                                                                                                RIA.
                                 --------------------------------------------------------------------------------------------------------------
    Qualitative
                                 --------------------------------------------------------------------------------------------------------------
    Transfers...................  None
                                 -----------------------------------------------------------------------------------------------------------------------
    From/To.....................  From:
                                  To:
                                 -----------------------------------------------------------------------------------------------------------------------
Effects:
--------------------------------------------------------------------------------------------------------------------------------------------------------
    State, Local, and/or Tribal   $17,026,477.....  ................  ................  2014............  7...............  10 Years..........  Final
     Government.                                                                                                                                Rule
                                                                                                                                                RIA.
                                  $16,161,365.....  ................  ................  2014............  3...............  10 Years
                                 ------------------------------------------------------
    Small Business..............  Not expected to have a significant impact on a        NA..............  NA..............  NA................  Final
                                   substantial number of small entities.                                                                        Rule
                                                                                                                                                RIA.
--------------------------------------------------------------------------------------------------------------------------------------------------------

II. Acronyms and Abbreviations

------------------------------------------------------------------------
        Acronym or abbreviation                        Term
------------------------------------------------------------------------
AASHTO.................................  American Association of State
                                          Highway and Transportation
                                          Officials.
AC.....................................  Asphalt-Concrete.
ACPA...................................  American Concrete Pavement
                                          Association.
ADA....................................  Americans with Disabilities
                                          Act.
Alaska DOT&PF..........................  Alaska Department of
                                          Transportation and Public
                                          Facilities.
AMPO...................................  Association of Metropolitan
                                          Planning Organizations.
ASCE...................................  American Society of Civil
                                          Engineers.
ASR....................................  Alkali Silica Reactivity.
CDOT...................................  Colorado Department of
                                          Transportation.
CIP....................................  Capital Improvement Program.
CFR....................................  Code of Federal Regulations.
CMAQ...................................  Congestion Mitigation and Air
                                          Quality Improvement Program.
COMPASS................................  Community of Planners
                                          Association of Southwestern
                                          Idaho.
CRCP...................................  Continuously Reinforced
                                          Concrete Pavements.
DOT....................................  U.S. Department of
                                          Transportation.
State DOT..............................  State Department of
                                          Transportation.
EIA....................................  Energy Information
                                          Administration.
EO.....................................  Executive Order.
FHWA...................................  Federal Highway Administration.
FAST Act...............................  Fixing America's Surface
                                          Transportation Act.
FTA....................................  Federal Transit Administration.
HPMS...................................  Highway Performance Monitoring
                                          System.
HSIP...................................  Highway Safety Improvement
                                          Program.
HSP....................................  Highway Safety Plan.
IRI....................................  International Roughness Index.
LRP/LRTP...............................  Long Range Plan/Long Range
                                          Transportation Plan.
MAP-21.................................  Moving Ahead for Progress in
                                          the 21st Century Act.
MARC...................................  Mid-American Regional Council.
MEPDG..................................  Mechanistic-Empirical Pavement
                                          Design Guide \7\.
MPH....................................  Miles per hour.
MPO....................................  Metropolitan Planning
                                          Organization.
MTC....................................  Metropolitan Transportation
                                          Commission.

[[Page 5891]]

 
MTP....................................  Metropolitan Transportation
                                          Plan.
NARA...................................  National Archives and Records
                                          Administration.
NARC...................................  National Association of
                                          Regional Councils.
NBI....................................  National Bridge Inventory.
NBIS...................................  National Bridge Inspection
                                          Standards.
NHPP...................................  National Highway Performance
                                          Program.
NCHRP..................................  National Cooperative Highway
                                          Research Program.
NHS....................................  National Highway System.
NPRM...................................  Notice of Proposed Rulemaking.
NYMTC..................................  New York Metropolitan
                                          Transportation Council.
NYSAMPO................................  New York State Association of
                                          Metropolitan Planning
                                          Organizations.
OMB....................................  Office of Management and
                                          Budget.
PCA....................................  Portland Cement Association.
PCCP or Jointed PCCP...................  Portland Cement Concrete
                                          Pavements.
PCI....................................  Pavement Condition Index.
PRA....................................  Paperwork Reduction Act.
PSR....................................  Present Serviceability Rating.
PSRC...................................  Puget Sound Regional Council.
RIA....................................  Regulatory Impact Analysis.
RIN....................................  Regulatory Identification
                                          Number.
ROW....................................  Right of Way.
RSL....................................  Remaining Service Life.
Secretary..............................  Secretary of the U.S.
                                          Department of Transportation.
SHSP...................................  Strategic Highway Safety Plan.
SME....................................  Subject Matter Expert.
TEMPO..................................  Association of Texas
                                          Metropolitan Planning
                                          Organizations.
TMA....................................  Transportation Management Area.
TAMP...................................  Transportation Asset Management
                                          Plan.
UMRA...................................  Unfunded Mandates Reform Act of
                                          1995.
U.S.C..................................  United States Code.
VMT....................................  Vehicle Miles Traveled.
VOC....................................  Vehicle Operating Costs.
------------------------------------------------------------------------
\7\ http://onlinepubs.trb.org/onlinepubs/archive/mepdg/home.htm.

III. Background

    The DOT's proposal regarding MAP-21's performance requirements is 
being presented through several rulemakings, some of which were 
referenced in the above discussions. As a summary, these rulemaking 
actions are listed below and should be referenced for a complete 
picture of performance management implementation. The summary below 
describes the main provisions that DOT plans to propose for each 
rulemaking.
    On January 5, 2015, FHWA published an NPRM (80 FR 326) proposing 
the following: (1) The definition of national measures for the 
condition of NHS pavements and bridges; (2) the process to be used by 
State DOTs and MPOs to establish their pavement and bridge condition 
related performance targets that reflect the measures proposed in the 
NPRM; (3) the process State DOTs must follow to report on progress 
toward meeting or making significant progress toward meeting pavement 
and bridge condition related performance targets; (4) a methodology to 
be used to assess State DOTs' compliance with the target achievement 
provision specified under 23 U.S.C. 148(i); and (5) the minimum levels 
for the condition of pavement on the Interstate System and bridges 
carrying the NHS which includes on- and off-ramps connected to the NHS.
    On March 15, 2016, FHWA published a final rule (81 FR 13882) 
covering the safety-related elements of the Federal-aid Highway 
Performance Measures Rulemaking that included the following: (1) The 
definitions that are applicable to the new 23 CFR part 490; (2) the 
process to be used by State DOTs and MPOs to establish their safety-
related performance targets that reflect the safety measures; (3) a 
methodology to be used to assess State DOTs' compliance with the target 
achievement provision specified under 23 U.S.C. 148(i); and (4) the 
process State DOTs must follow to report on progress toward meeting or 
making significant progress toward meeting safety-related performance 
targets. The final rule also included a discussion of the collective 
rulemaking actions FHWA intends to take to implement MAP-21 and FAST 
Act performance related provisions.
    The FHWA published a third Federal-aid Highway Performance Measures 
Rulemaking (Regulatory Identification Number (RIN) 2125-AF54) on April 
22, 2016, FR Vol. 81, No. 78. In this NPRM, FHWA proposed national 
measures for the remaining areas under 23 U.S.C. 150(c) that were not 
discussed under the first and second measure rules. The third 
rulemaking effort includes the following measure areas: (1) National 
Management Performance Measures for Performance of the Interstate 
System and non-Interstate NHS; (2) Freight Movement on the Interstate 
System and the Congestion Mitigation and Air Quality Improvement 
Program (CMAQ) Traffic Congestion; (3) CMAQ On-Road Mobile Source 
Emissions; (4) the State DOT and MPO target establishment requirements 
for the Federal-aid highway program; and (5) performance progress 
reporting requirements and timing.
    When FHWA began implementation of MAP-21, the three related 
Federal-aid highway performance measure rules were to be published at 
the same time to allow for a single, common effective date for all 
three rules. While FHWA recognizes that one common effective date could 
be easier for State DOTs and MPOs to implement, the process to develop 
and implement all of the Federal-aid highway performance measures 
required in MAP-21 has been lengthy. In light of this, instead of 
waiting for all three rules to be final before implementing the MAP-21 
performance measure requirements, each of three Federal-aid highway 
performance measures rules will have individual effective dates. This 
would

[[Page 5892]]

allow FHWA, State DOTs, and MPOs to begin implementing some of the 
performance requirements much sooner than waiting for the rulemaking 
process to be complete for all three rules. The FHWA also believes that 
a staggered approach to implementation (i.e., implementing one set of 
requirements at the onset and adding on requirements over time) will 
better help State DOTs and MPOs transition to a performance based 
framework. The FHWA expects that even though the effective date for 
each rule would occur as that rule is finalized, the second rule would 
ultimately be aligned with the third rule through a common performance 
period and reporting requirements for the proposed measures. A timeline 
for Biennial Performance Reports is shown in Figure 1 in section 
490.105(e)(1).
    Although FHWA believes that individual implementation dates will 
help State DOTs and MPOs transition to performance based planning, to 
lessen any potential burden of staggered effective dates, FHWA will 
provide guidance to State DOTs and MPOs on how to carry out the new 
performance requirements.
    In addition to providing this guidance, FHWA is committed to 
providing stewardship to State DOTs and MPOs to assist them as they 
take steps to manage and improve the performance of the highway system. 
As a Federal agency, FHWA is in a unique position to use resources at a 
national level to capture and share strategies that can improve 
performance. The FHWA will continue to dedicate resources at the 
national level to provide technical assistance, technical tools, and 
guidance to State DOTs and MPOs to assist them in making more effective 
investment decisions. It is FHWA's intent to be engaged at a local and 
national level to provide resources and assistance from the onset to 
identify opportunities to improve performance and to increase the 
chances for full State DOT and MPO compliance of new performance 
related regulations. The FHWA technical assistance activities include 
conducting national research studies, improving analytical modeling 
tools, identifying and promoting best practices, preparing guidance 
materials, and developing data quality assurance tools.

IV. Summary of the Notice of Proposed Rulemaking

    The NPRM published on January 5, 2015 (80 FR 326), was one of 
several NPRMs that FHWA issued to implement sec. 1203 of MAP-21, which 
establishes performance management as a way to transform the Federal-
aid highway program and refocus it on national transportation goals, 
increase accountability and transparency of the program. The NPRM 
proposed a set of national measures for State DOTs to use to assess the 
condition of pavement and bridges on the NHS in support of MAP-21's 
national goal of maintaining the condition of highway infrastructure 
assets in a state of good repair.
    After a period of engagement and outreach with State DOTs, MPOs, 
and other stakeholders and a review of nationally recognized reports, 
FHWA's NPRM proposed six national performance measures that rated the 
percentage of all mainline pavements on the NHS (excluding the 
Interstate System), bridges carrying the NHS which includes on- and 
off-ramps connected to the NHS, and mainline pavements on the 
Interstate System in either Good or Poor condition. The ratings 
proposed in the NPRM were derived from several quantitative metrics 
that addressed physical characteristics of pavement and bridge 
condition and were tracked and reported regularly to FHWA by State DOTs 
in the HPMS and the NBI. The NPRM also proposed a minimum level of 
condition for pavements on the Interstate System as required by the 
statute. The NPRM also incorporated the minimum condition level for NHS 
bridges, as stated in 23 U.S.C. 119(f)(2). To support the new measures, 
the NPRM proposed to establish standardized data requirements that 
prescribed State DOTs' pavement and bridge condition data gathering 
practices. These requirements specified the data elements State DOTs 
must collect, methods for collecting those data elements, and the 
spatial and temporal coverage of the data they collect. The NPRM's 
proposed data requirements ensured more accurate calculation of the 
proposed national pavement and bridge performance measures based on 
State DOTs' data.
    The NPRM also proposed to establish the processes for State DOTs 
and MPOs to establish and report progress toward achieving targets, and 
the process for FHWA to determine whether State DOTs have made 
significant progress in achieving targets.
    The measures, data requirements, and related processes included in 
the NPRM were selected by FHWA after careful determination that they 
represented the best choices for achieving greater consistency among 
State DOTs in compiling accurate infrastructure condition information, 
following processes for target setting, and reviewing progress toward 
targets. In turn, FHWA expected the measures to enhance accountability 
and support a strong national focus on the condition of the Nation's 
highways, while minimizing the number of measures needed and 
maintaining reasonable flexibility for State DOTs as they manage risk, 
differing priorities, and fiscal constraints. Lastly, FHWA anticipated 
that the proposed measures could be implemented in the timeframe 
required under MAP-21, without introducing a considerable burden on 
State DOTs.

Pavement Condition Measures

    The four pavement condition measures proposed in the NPRM were: (1) 
Percentage of pavements on the Interstate System in Good condition; (2) 
Percentage of pavements on the Interstate System in Poor condition; (3) 
Percentage of pavements on the NHS (excluding the Interstate System) in 
Good condition; and (4) Percentage of pavements on the NHS (excluding 
the Interstate System) in Poor condition.

Pavement Data Requirements and Metrics

    Under the NPRM, performance ratings of Good, Fair, or Poor 
condition for pavement were determined by FHWA using a combination of 
several metrics derived from data elements collected by State DOTs and 
reported to the HPMS. These metrics collectively provided a way to 
quantify pavement condition in terms of roughness and cracking for all 
pavement types, rutting for asphalt pavement surfaces, and faulting 
(misalignment between concrete slabs) for jointed concrete pavement 
surfaces. Roughness affects users' travel speeds, safety, comfort, and 
transportation costs. Cracking, rutting, and faulting are considered 
surface indicators of structural deterioration in different pavement 
types. Since 2010, most State DOTs have reported roughness, cracking, 
rutting, and faulting data annually to FHWA through HPMS.
    The NPRM specified that data for the roughness, cracking, rutting, 
and faulting metrics must be collected consistent with practices 
outlined in the HPMS Field Manual (A draft of the updated HPMS Field 
Manual was placed on the docket with the NPRM at FHWA-2013-0053).

Calculation of Pavement Measures

    The proposed pavement measures were designed to reflect a 
pavement's predominant condition, represented by roughness, cracking, 
rutting, and faulting data elements, as applicable. For a section of 
pavement to be rated in Good condition, the absolute values for all 
relevant metrics need to exceed thresholds specified in the NPRM.

[[Page 5893]]

Conversely, a section of asphalt or jointed concrete pavement would be 
rated in Poor condition if any two of three relevant metrics were below 
specified threshold values. A section of Continuously Reinforced 
Concrete Pavement would be rated in Poor condition if the two relevant 
metrics are below the specified threshold values. The FHWA explained 
that a measurement approach that focused only on increasing Good 
conditions or reducing Poor conditions may result in practices that 
would not optimize the benefits of infrastructure investments.

Bridge Condition Measures

    The two bridge condition measures proposed in the NPRM were: (1) 
Percentage of NHS bridge deck area classified as in Good condition and 
(2) Percentage of NHS bridge deck area classified as in Poor condition.

Bridge Data Requirements and Metrics

    Under the NPRM, performance ratings of Good or Poor condition for 
bridges were determined by FHWA using a combination of several metrics 
collected by each Federal agency, State DOT, and tribal government as 
part of their NBI submittals (specifically deck, superstructure, 
substructure, and culverts). These metrics provide an overall 
characterization of the general physical condition of the entire bridge 
component being rated. The NBI database was established in 1972 and 
State DOTs have been required to submit annual NBI reports to FHWA 
since 1978. The NBI is a highly consistent set of national data for 
evaluating and monitoring the condition and performance of bridges that 
is based on National Bridge Inspection Standards (NBIS) for the proper 
and uniform inspection and evaluation of highway bridges. The NPRM 
further proposed to weight the classifications by the respective deck 
area of the bridge and express condition totals as a percentage of the 
total bridge deck area on the NHS in a State.

Calculation of Bridge Measures

    The NPRM's proposed bridge measures reflected the lowest component 
condition rating for the bridge, based on the NBI condition ratings for 
deck, superstructure, substructure, and culverts. For a bridge to be 
classified as in Good condition, all the relevant metrics need to equal 
the values specified in the NPRM. Similarly, a bridge would be 
classified as in Poor condition if any of the relevant metrics equal 
the values specified in the NPRM.

State Departments of Transportation and Metropolitan Planning 
Organizations Pavement and Bridge Performance Targets

    The NPRM described a process by which the six pavement and bridge 
condition performance measures would be used by State DOTs and MPOs to 
establish quantifiable statewide performance targets to be achieved 
over a 4-year performance period, with the first performance period 
starting in 2016. Under the NPRM, a State DOT or MPO could consider a 
number of factors (e.g., funding availability and local transportation 
priorities) that could impact the targets they ultimately establish for 
pavement and bridge system conditions. According to the NPRM, State 
DOTs would establish 2- and 4-year targets for the six pavement and 
bridge condition measures 1 year after the effective date of the rule. 
The MPOs would establish targets by either supporting the State DOT's 
statewide target, or defining a target unique to the metropolitan 
planning area each time the State DOT establishes a target. In 
accordance with MAP-21, the NPRM provided MPOs a 180-day period 
following the date at which the State DOT established their pavement 
and bridge targets. Furthermore, the NPRM proposed a minimum level of 
condition for Interstate System pavements of no more than 5 percent of 
pavement lane miles in Poor condition, and reiterated the MAP-21 
requirement of no more than 10 percent of the deck area of bridges on 
the NHS classified as structurally deficient.

State Departments of Transportation and Metropolitan Planning 
Organization Pavement and Bridge Performance Reporting

    The NPRM proposed that State DOTs submit biennial reports to FHWA 
on the condition and performance of the NHS. Under the NPRM, State DOTs 
submitted their targets in a baseline report at the beginning of each 
performance period and reported progress in achieving targets at the 
midpoint and end of the performance period. State DOTs were allowed to 
adjust their 4-year target at the midpoint of the performance period. 
The MPOs were not required to provide separate reporting to FHWA. 
However, State DOTs and MPOs needed to agree on a reporting process in 
the Metropolitan Planning Agreement.

Determination of Significant Progress

    The NPRM proposed the method for FHWA to determine if State DOTs 
achieved significant progress toward their target from an analysis of 
estimated condition/performance and measured condition/performance of 
each of the targets. If applicable, State DOTs could have the 
opportunity to discuss why targets were not achieved or significant 
progress was not made. If a State DOT failed to achieve significant 
progress in two consecutive biennial determinations, then the State DOT 
was required to document in their next biennial performance report, and 
encouraged to document sooner, the actions they would undertake to 
achieve their targets.

V. Discussion of Comments

    The FHWA received 127 public comment submissions to the docket. 
This included letters from 42 State DOTs, 13 MPOs, 19 counties or local 
government agencies, 16 industry associations, and several other 
submissions from individuals, advocacy organizations, and private 
industry members. One submission contained over 1,000 duplicates of a 
letter expressing support for the rule and appreciation to FHWA for 
responding to public comment on the first performance management NPRM 
related to safety. The comment submissions covered a number of topics 
in the proposed rule, with the most substantive comments on 
establishment of targets, reporting, the significant progress 
determination process, pavement condition performance measures, and 
bridge condition performance measures.
    Of the 127 public comment submissions received, the majority 
expressed overall support for the rule. Commenters expressed general 
concerns over NHS ownership, the performance period timespan, the start 
of the reporting cycle, target adjustment, significant progress 
determination and timing, incorporation by reference, and minimum 
condition penalties. For pavement condition measures specifically, 
commenters had mixed opinions regarding the use of the IRI and other 
metrics and expressed concern over the proposed extent of data 
collection, the treatment of missing data, and the proposed minimum 
condition level. For bridge condition measures specifically, commenters 
expressed mixed opinions about the use of element level data and 
expressed opposition to the proposed definition of structurally 
deficient.
    The FHWA thanks all commenters for their responses to the NPRM. The 
FHWA carefully considered the comments received from the stakeholders.

[[Page 5894]]

Selected Topics for Which FHWA Requested Comments

    In the NPRM, FHWA requested comments on different topics related to 
the rulemaking. Several of those had an impact on the final rule and 
are discussed in this section. The others are discussed in the section-
by-section analysis.

Purpose and Approach of the Regulatory Action

    The FHWA received general support of the performance management 
concept and its proposed implementation from State DOTs, industry 
groups, and private citizens.\8\ The FHWA also received several 
comments that opposed specific portions of the proposed rule from State 
DOTs, industry, local governments, and advocacy groups.\9\ Some of 
these same commenters shared their overall support of the rule.
---------------------------------------------------------------------------

    \8\ The State DOTs of Alaska, Florida, Georgia, Illinois, Iowa, 
Louisiana, Maine, Minnesota, Missouri, New Hampshire, New York, 
Oregon, Vermont, Virginia, and Washington State; and AASHTO, Cemex 
USA, National Asphalt Pavement Association, National Association of 
Regional Councils, National Center for Pavement Preservation, New 
York Metropolitan Transportation Council, New York State Association 
of Metropolitan Planning Organizations, Northeast Pavement 
Preservation Partnership, Oversight Committee for the California 
Local Streets and Roads Needs Assessment, Southern California 
Association of Governments, Southeast Michigan Council of 
Governments, Southeast Pavement Preservation Partnership, and 
Transportation for America, Blake Rubenstein.
    \9\ State DOTs of Alaska, Idaho, New York, North Dakota, Oregon, 
South Dakota, Rhode Island, and Wyoming; the City of Santa Rosa, CA 
and the Seattle DOT; and Agile Assets, American Road and 
Transportation Builders Association, Center for American Progress, 
Michigan Transport Commission and Asset Management, and 
Transportation for America.
---------------------------------------------------------------------------

    A number of State DOTs and MPOs took issue with the assumptions and 
levels of cost analysis associated with the requirements of the NPRM 
reflected in the benefit-cost analysis and suggested that it be 
reconsidered.\10\ These comments are discussed in more detail in 
Section VI. In terms of benefits, Fugro Roadware, a firm that 
manufactures and operates equipment that is used to measure the 
pavement conditions on State and municipal networks, asserted that the 
``entire pavement and traffic assessment management process has been 
shown to improve the quality of road networks without an overall 
increase of funding. . . .''
---------------------------------------------------------------------------

    \10\ Atlanta Regional Commission, Texas Association of 
Metropolitan Planning Organizations, Transportation for America, and 
State DOTs of Colorado, Rhode Island, North Carolina, Mississippi, 
Oklahoma, Michigan, Georgia, Louisiana, and Oregon.
---------------------------------------------------------------------------

    Finally, FHWA received numerous comments that fell outside of the 
scope of the rulemaking. The American Motorcyclist Association, for 
example, endorsed the design standards that advance the safety of 
motorcycle use. The advocacy group Perils for Pedestrians commented 
that more pedestrians are injured by falls than vehicles. The American 
Society of Civil Engineers (ASCE) requested FHWA incorporate Life Cycle 
Costs into performance management rules. Finally, private citizens (1) 
requested an addition to the proposed rule to promote small business 
during the inspection and accounting for each new project; (2) 
advocated for improved standards for design and construction of 
longitudinal joints in pavements; (3) endorsed the goals for Safety and 
Asset Management Rules as well as incentives to increase public 
transit; and ``(4) suggested the rule require the use of compact joints 
on highways to extend the pavement's lifetime.''

Public Comments in Response to FHWA's Questions in the NPRM

    In the NPRM, FHWA requested comments on certain topics related to 
the pavement and bridge condition performance measures rulemaking. 
Comments received in response are summarized below.

Does the approach to performance measures support the nine 
implementation principles?

    The FHWA listed nine principles in the NPRM preamble that were 
considered in the development of the proposed regulation.\11\ Overall, 
commenters (AASHTO and the State DOTs of Alabama, Connecticut, Georgia, 
Maryland, New Jersey, New York State, Oregon, and Texas, and private 
entity Steve Mueller Consultancy) supported FHWA's nine principle 
approach. However, the New York Metropolitan Transportation Council 
(NYMTC) felt the NPRM was inconsistent with the nine principles in 
relationship to linking financial penalties to the single nationwide 
[sic, statewide] targets for pavement and bridges causing inconsistency 
with the principles of: (1) Understand that Priorities Differ (``Single 
targets do not acknowledge regional differences in infrastructure age, 
. . .''), (2) Recognize Fiscal Constraints (``These targets and 
penalties have the effect of limiting flexibility we have for investing 
in assets across our systems at the state, regional, and local levels, 
as we deem appropriate.''), and (3) Provide for Flexibility (``Tying 
penalties to the specific measures in Sec.  490.317 and Sec.  490.413 
and requiring [S]tates to focus spending on two specific components of 
the transportation system (Interstate pavement and NHS bridges) is the 
antithesis of flexibility.'') NYSDOT (New York State Department of 
Transportation) and other NYMTC members are responsible for the entire 
transportation system in the region, and all approach asset management 
from a system-level perspective (including both NHS and non-NHS 
assets). These thresholds and associated penalties could lead to an 
exclusive focus on Interstate pavement and NHS bridges at the expense 
of the remainder of the system.''
---------------------------------------------------------------------------

    \11\ Nine principles used in the development of proposed 
regulations for national performance management measures under 23 
U.S.C. 150(c), www.regulatons.gov, Docket FHWA-2013-0053:
    i. Provide for a National Focus--focus the performance 
requirements on outcomes that can be reported at a national level.
    ii. Minimize the Number of Measures--identify only the most 
necessary measures that will be required for target establishment 
and progress reporting. Limit the number of measures to no more than 
two per area specified under 23 U.S.C. 150(c).
    iii. Ensure for Consistency--provide a sufficient level of 
consistency, nationally, in the establishment of measures, the 
process to set targets and report expectations, and the approach to 
assess progress so that transportation performance can be presented 
in a credible manner at a national level.
    iv. Phase in Requirements--allow for sufficient time to comply 
with new requirements and consider approaches to phase in new 
approaches to measuring, target establishment, and reporting 
performance.
    v. Increase Accountability and Transparency--consider an 
approach that will provide the public and decision makers a better 
understanding of Federal transportation investment needs and return 
on investments.
    vi. Consider Risk--recognize that risks in the target 
establishment process are inherent, and that performance can be 
impacted by many factors outside the control of the entity required 
to establish the targets.
    vii. Understand that Priorities Differ--recognize that State 
DOTs and MPOs must establish targets across a wide range of 
performance areas, and that they will need to make performance 
trade-offs to establish priorities, which can be influenced by local 
and regional needs.
    viii. Recognize Fiscal Constraints--provide for an approach that 
encourages the optimal investment of Federal funds to maximize 
performance but recognize that, when operating with scarce 
resources, performance cannot always be improved.
    ix. Provide for Flexibility--recognize that the MAP-21 
requirements are the first steps that will transform the Federal-aid 
highway program to a performance-based program and that State DOTs, 
MPOs, and other stakeholders will be learning a great deal as 
implementation occurs.
---------------------------------------------------------------------------

    In addition, the Northeast Pavement Preservation Partnership 
(NEPPP) felt most of the principles were covered but that FHWA did not 
address the following principles: (1) Recognize Fiscal Constraints--
(``The proposed performance measures do not encourage optimal 
investment. It can be argued that they instead encourage worst-first 
mentality, since there is a target for percent poor, and since there 
are bins

[[Page 5895]]

(i.e., percent good, percent fair, and percent poor)). Optimal 
investment could much more readily be achieved with an overall Index or 
RSL approach, where pavement preservation is encouraged along with 
rehabilitation.''); and (2) Provide for Flexibility--(``It is not 
apparent in the rules how flexibility is provided for. No provision is 
made for allowing a [State] DOT to implement and manage toward 
different measures which may be more cost-effective.''). The National 
Asphalt Pavement Association (NAPA) made similar arguments in regard to 
principle (1) ``Recognize Fiscal Constraints--(``NAPA is concerned that 
the proposed rule could lead to poor decisions (i.e., ``worst first'') 
in order to comply with the NPRM minimum pavement condition, rather 
than decisions that factor in the long-term preservation and 
performance of pavements.''); and (2) Provide for Flexibility--
(``Agencies should have flexibility to make decisions that balance 
preserving good/fair pavements with improving and rehabilitating poor 
pavements.'')
    While the following commenters generally agreed that FHWA's 
approach to performance measures was consistent with the nine 
principles, they also identified areas that were lacking. Georgia DOT 
stated that the approach in the proposed rule may not fully support the 
principle of recognizing fiscal constraints or provide for an approach 
that encourages the optimal investment of Federal funds to maximize 
performance.
    The NYMTC and the Georgia and Maryland DOTs stated that limited 
funding could prevent targets and minimums from being achievable and 
that imposing the proposed penalties could result in worsening of other 
assets. Moreover, the NYMTC commented that with no long term funding 
solution for national or State transportation programs, States may not 
have a defensible way to establish targets or make changes to their 
investment strategies.
    The NEPPP also commented that the proposed rule will not allow a 
State DOT to implement and manage their program toward different 
measures or metrics that encourage a balanced program based on asset 
management pavement preservation conceptions.
    Several commenters cited concerns over flexibility in the rule tied 
to implementation principles. The NYS DOT commented that States should 
not be forced to use specific performance targets or measures. The New 
Jersey DOT raised concerns about reporting requirements, commenting 
that they will need to maintain ``two sets of books,'' one for national 
performance reporting and one to manage their network, using 
appropriate pavement management and asset management principles.

Suggestions for How FHWA Can Best Assist State DOTs and MPOs To 
Maximize Opportunities for Successful Implementation of the Proposed 
Performance Measures

    Generally, States expressed a desire for more training materials, 
technical assistance, and technical guidance so that they can implement 
the rule accurately and efficiently. Several commenters, including 
AASHTO and the State DOTs of Connecticut, Louisiana, New Jersey, and 
Oregon, expressed a desire for additional technical assistance and 
guidance detailing the process FHWA will use to compute the overall 
pavement condition measures. Commenters also requested guidance on 
target setting best practices for State DOTs and MPOs. The Maryland DOT 
suggested that FHWA provide a contact person or Web link for technical 
assistance activities. In addition, the Alabama DOT commented that more 
guidance be given on data quality. They argued that the training 
materials have lacked information in statistical methodology and note, 
``it is simple to determine if a dataset is reasonable; it is quite a 
different matter to determine of the dataset is correct.''

Should the measures reflect additional factors such as facility 
location, functional class, level of use, environment, or impact it may 
have on other aspects of transportation performance?

    The American Concrete Pavement Association (ACPA) and Portland 
Cement Association (PCA) requested that FHWA modify the proposed rule 
to provide a better assessment of the performance of our highways and 
bridges. A private citizen, Joyce Dillard, commented that the measures 
should reflect level of use, environment, and overweight trucks. 
Acknowledging that there is limited funding and increasing needs, 
Oregon DOT commented that adding additional factors could help show 
progress. The commenter suggested adding measures such as functional 
class, progress made on other deficiencies (e.g., painting, vertical 
clearance, and rail), and risk. Additionally, for bridges specifically, 
the commenter suggested looking at mitigation measures to reduce 
vulnerability to seismic activity and scour. In addition, the New York 
City DOT recommended that traffic counts on bridges could be a useful 
measure to collect. The commenter noted that that traffic counts are an 
important variable that quantifies a bridge's performance and life 
expectancy.

Appropriateness of the Proposed Threshold Criteria To Determine Good, 
Fair, and Poor Ratings

     Concerns with Pavements: Commenters stated that agencies 
will be driven to overemphasize treatments that lower cracking and 
improve ride quality on pavements that currently rank as Poor at the 
cost of solutions that extend the performance life of the pavements 
that currently rank as Good or Fair (e.g., surface treatments). In 
addition, commenters noted that although pavement types referenced in 
the NPRM (Portland Cement Concrete Pavements and Continuously 
Reinforced Concrete Pavements (CRCP)) make up the vast majority of the 
NHS, other pavement surfaces exist in small quantities.

Should FHWA establish a minimum condition threshold that would become 
more stringent over time?

    Commenters provided mixed opinions on the establishment of a 
minimum condition threshold that would become more stringent over time. 
Several commenters expressed concern that pressure to meet a difficult 
minimum condition threshold may push States to implement a worst-first 
approach to pavement preservation, which would run counter to the asset 
management principles and planning approach advocated by FHWA.\12\ The 
Oregon DOT commented that a problem with pavement performance measures 
is that they ``discourage proven, cost effective, pavement preservation 
techniques.'' Agencies that are under pressure to meet performance 
targets may implement a worst-first approach.
---------------------------------------------------------------------------

    \12\ State DOTs of Arkansas and Mississippi, the Southern 
California Association of Governments, the Seattle Department of 
Transportation.
---------------------------------------------------------------------------

    Other State DOTs and AASHTO recommended FHWA evaluate the effects 
of the national level performance measures, targets and minimum 
condition levels to ensure that these policies have a positive impact 
on management approaches.

[[Page 5896]]

VI. Section-by-Section Discussion of the General Information and 
National Performance Management Measures for the National Highway 
Performance Program: Pavement and Bridge

A. Subpart A--General Information

Discussion of Section 490.101 General Definitions
    In the NPRM, FHWA proposed several definitions for used in this 
regulation.
    Only Washington State DOT commented on the definition for the term 
``HPMS'' and they agreed with the definition. The FHWA retains the 
definition for HPMS.
    In the NPRM, the term ``full extent'' was defined as ``continuous 
collection and evaluation of pavement condition data over the entire 
length of the roadway.'' The term ``mainline highways'' was defined as 
``the through travel lanes of any highway exclude ramps, shoulders, 
turn lanes, crossovers, rest areas, and other pavement surfaces that 
are not part of the roadway normally travelled by through traffic.''
    Only Washington State DOT commented on the definition for ``full 
extent'' and they agreed with the definition. The State DOTs of 
Connecticut, Maine, New Hampshire, Vermont, and Washington State and 
AASHTO agreed with the definition of ``mainline highways.'' However, 
Colorado DOT stated that the definition conflicts with section 
490.309(c)(1)(i) requiring data for the full extent of the mainline 
highway of the NHS which would indicate that State DOTs need to collect 
data on all through travel lanes. The Colorado DOT added that the 
intent is that States collect one lane's worth of data on NHS. The FHWA 
described in the NPRM that section 490.309(c) applies to Through Lanes, 
Surface Type, and Structure Type Data Items, while section 490.309(b) 
requires that State DOTs report IRI, rutting, faulting, and Cracking 
Percent only apply to the rightmost travel lane or one consistent lane, 
if the rightmost travel lane is not accessible. Based on this, FHWA 
believes that the definitions of ``mainline highways'' and ``full 
extent'' do not conflict with other sections in this rule. The FHWA 
retains those definitions in the final rule.
    The Washington State DOT agreed with the definitions for ``metric'' 
and ``measure,'' and Mid-America Regional Council appreciated the 
distinction between the two terms. The FHWA retains the definitions for 
``metric'' and ``measure.''
    The Puget Sound Regional Council (PSRC) urged FHWA to consider 
allowing MPOs to establish performance targets that ``encompass all 
areas within their planning boundary rather than only the Federally 
designated metropolitan planning area.'' They added that this 
definition of area would allow for consistent infrastructure condition 
targets for the full region in the event the MPO target differs from 
the State target. To eliminate the ambiguity with the term 
``metropolitan planning area,'' FHWA includes the definition for 
``metropolitan planning area'' in this regulation as the term defined 
in the Statewide and Nonmetropolitan and Metropolitan Transportation 
Planning Regulations at 23 CFR 450.104. This term is used consistently 
as the extent of an MPO target that represents performance outcomes of 
the transportation network within the area. So the definition has been 
included to ensure consistency in interpretation by readers.
    In the NPRM, the term ``non-urbanized area'' was defined as ``any 
geographic area that is not an `urbanized area' under either 23 U.S.C. 
101(a)(34).'' The FHWA received comments from Washington State and 
Virginia DOTs on the definition for ``non-urbanized area.'' The 
Washington State DOT supported the proposed definition. The Virginia 
State DOT pointed out that the proposed definition is missing a 
citation because only one citation (23 U.S.C. 101(a)(34)) was provided 
after the word ``either.'' The FHWA appreciates the comments from both 
agencies and examined the definition for better clarification while 
maintaining consistency with section 490.105(e)(3)(ii), which specifies 
a single collective non-urbanized area target and is consistent with 
the language in the final rule for safety performance measures. The 
FHWA also recognizes the word ``either'' was inadvertently included in 
the proposed definition. As a result, FHWA revised the definition for 
``non-urbanized area'' to clearly indicate that a non-urbanized area is 
a single, collective area comprising all of the areas in the State that 
are not ``urbanized areas'' defined under 23 U.S.C. 101(a)(34).
    Only Washington State DOT commented on the definition for the term 
``performance period,'' agreeing with the proposed definition. The FHWA 
retains the definition for ``performance period.''
    The Washington State DOT agreed with the definition for ``target.'' 
The Minnesota DOT recommended the term ``plan outcome'' as opposed to 
``target'' because they said that Minnesota DOT uses the term 
``target'' to identify an aspirational performance objective to define 
investment need, as opposed to an objective that they expect to achieve 
within the constraints of the resources currently available.'' The FHWA 
appreciates Minnesota DOT's suggestion on the term. However, FHWA 
retains the term ``target'' in the final rule because the term is 
referenced in the statute (23 U.S.C. 150(d), 134(h), 135(d), and 
119(e)).
    As discussed in section 490.309 (Using Structure_Type to Identify 
and Exclude Bridges) and section 490.405, FHWA moves the definition of 
``bridge'' from subpart D (i.e., section 490.405) to this section in 
subpart A to use the term in a consistent manner throughout this rule. 
The FHWA strikes the term ``this section'' in the definition of 
``bridge'' and replaces with the term ``this Part'' to ensure that the 
definition of ``bridge'' in this section applies to both subparts in 
the final rule. Therefore, the definition of ``bridge'' in the final 
rule is: ``Bridge, as used in this Part, is defined in Sec.  650.305 of 
this title, the National Bridge Inspection Standards.'' Please see 
discussion sections for sections 490.309 and 490.405 for more detail.
    Finally, FHWA retains the definitions for ``National Bridge 
Inventory'' as proposed in the NPRM. There were no substantive comments 
regarding the definition.
Discussion of Section 490.103 Data Requirements
    The FHWA proposed in section 490.103 of the NPRM, the data 
requirements that apply to more than one subpart in part 490. 
Additional proposed data requirements that are unique to each subpart 
are included and discussed in their respective subpart.
    Some comments from AASHTO and the State DOTs of Alaska and 
Connecticut referenced section 490.103 in their respective letters, but 
their comments were on the incorporation by reference of the HPMS Field 
Manual and NBI Coding Guide. Please refer to the discussion on section 
490.111 on incorporation by reference for response and discussion.
    There were no direct comments on section 490.103(a). However, FHWA 
did correct the referenced subparts in section 490.103(a) by changing 
``B and C'' to ``C and D'' so that the regulatory text correctly refers 
to the subparts in the final rule.
    In section 490.103(b), FHWA proposed that State DOTs submit 
urbanized area boundaries reported to HPMS in the year the Baseline 
Performance Period Report is due. Section 490.105(d)(3) specifies that 
the urbanized boundaries used in the Baseline Performance Period Report 
are

[[Page 5897]]

applicable for the entire performance period, regardless of whether 
FHWA approves adjustments to the urbanized area boundary during the 
performance period. This provision was proposed because the urbanized 
area boundaries and resulting non-urbanized area boundary have the 
potential to change on varying schedules; and changing a boundary 
during a performance period may lead to changes in the measures 
reported for the area, which could impact how an established target 
relates to actual measured performance. The FHWA also explained in the 
NPRM that State DOT submitted boundary information would be the 
authoritative data source for: (1) The target scope for the additional 
targets for urbanized and non-urbanized areas (section 490.105(e)(3)); 
(2) progress reporting (section 490.107(b)); and (3) IRI rating 
(section 490.313(b)(1)) for the pavement condition measures identified 
in section 490.105(c)(1) through (3).
    The FHWA received four comments directly related to the urbanized 
area boundary. The Missouri State DOT supported that State DOT-
submitted boundary information should be the authoritative data source 
for the target scope for the additional targets for urbanized and non-
urbanized areas. The Oregon State DOT commented that keeping urbanized 
area constant for the performance measures' entire 4-year performance 
period is ``too inflexible and may not reflect how investment decisions 
are actually made during the performance period due to changing route 
priorities.'' They added that the proposed approach ``looks backward in 
the mirror, rather than forward which is needed to incorporate up to 
date planning and policy.'' The FHWA agrees with Oregon State DOT in 
that at the time of target establishment, agencies should be looking 
forward by incorporating up-to-date planning and policy decisions and 
anticipate future changes. Although planning and policy decisionmaking 
should be ``forward-looking,'' for the purpose of assessing the impact 
of investment on condition/performance, FHWA believes preserving 
consistent boundaries throughout a performance period is essential to 
consistently assess target achievement during a performance period. The 
Texas State DOT and Texas Association of Metropolitan Planning 
Organizations commented that guidance is needed on where an urbanized 
area boundary will be set in relation to bridges. They stated that in 
some cases, the midpoint of the structure has been used as the 
boundary. There should be a determination regarding this issue in 
relation to how these bridges are classified at urban/rural boundaries 
and, in the case of two adjacent MPO planning area boundaries, to which 
MPO area the structure is assigned. Considering these comments, FHWA 
plans to issue guidance on urbanized and non-urbanized target 
establishment, which will address issues related to bridge boundaries.
    Because the threshold values for IRI metric no longer depend on the 
location (i.e., urbanized area with a population greater than 1 
million) of pavement sections which is discussed in section 
490.313(b)(1), FHWA revises sections 490.103(b) and 
490.107(b)(1)(ii)(D) to remove the term ``IRI rating determination.''
    Section 490.103(c) is reserved.
    No direct comment was received for section 490.103(d), and FHWA 
retains the language as proposed in the NPRM. Please see revised 
section 490.105(d)(3) for discussion on NHS limits and refer to the 
section 490.111 discussion section on the incorporation by reference.
Discussion of Section 490.105 Establishment of Performance Targets
    In section 490.105 of the NPRM, FHWA proposed the minimum 
requirements that would be followed by State DOTs and MPOs in the 
establishment of targets for all measures identified in section 
490.105(c). These requirements were proposed to implement the 23 U.S.C. 
150(d) and 23 U.S.C. 134(h)(2) target establishment provisions in a 
manner that provides for the consistency necessary to evaluate and 
report progress at a State, MPO, and national level, while also 
providing a degree of flexibility for State DOTs and MPOs.
    A couple of general comments on section 490.105 were received by 
FHWA. The Oregon State DOT expressed their appreciation for the 
proposed rule allowing State DOTs to establish performance targets 
``without the unnecessary burden of an FHWA target approval process.'' 
However, the Virginia State DOT commented that the proposed rule is 
``unclear on what may occur if FHWA disagrees with a State's proposed 
performance target and/or a State's strategy to meet that performance 
target.'' They added that the ``rule does not indicate what actions 
FHWA may take in such a situation, the rule as proposed sets up a 
possible point of future conflict between States and FHWA on how the 
State manages its resources in order to effectively manage its highway 
infrastructure to meet traffic demands and assure public safety.'' 
However, the Virginia State DOT noted that they are in favor of the 
proposal's approach to States establishing targets. In response to the 
comment from Virginia State DOT, FHWA notes that there is no language 
in the NPRM or this rule related to FHWA's approval or rejection of 
established targets by State DOTs and MPOs because the statutory 
language in MAP-21 provides that State DOTs and MPOs have the ability 
to establish their own targets and MAP-21 does not provide FHWA the 
authority to approve or reject State DOT or MPO established targets. In 
the discussion for section 409.109 in the NPRM, FHWA stated that 
``State DOTs would, through a transparent and public process, want to 
establish or adjust targets that strive to improve the overall 
performance of the Interstate and National Highway systems.'' The North 
Carolina State DOT requested clarification of the meaning of 
``transparent and public'' in regard to the target establishment 
process. They asked if FHWA considered that State DOTs are already 
required to hold public hearings when they select projects for the 
Statewide Transportation Improvement Program (STIP), and if this would 
satisfy the target establishment requirement. The FHWA does not 
prescribe specific methods for making the target establishment process 
transparent and public. Please refer to the final Planning Rule \13\ 
for performance requirements for the statewide transportation plan and 
STIP, including any requirements to include targets in the planning 
documents and the methods for developing those documents.
---------------------------------------------------------------------------

    \13\ Final Rule on Statewide and Nonmetropolitan Transportation 
Planning; Metropolitan Transportation Planning (Regulatory 
Identification Number (RIN) 2125-AF52) on May 27, 2016, FR Vol. 81, 
No. 103.
---------------------------------------------------------------------------

    The Center for American Progress stated that MAP-21 established 
that a clear goal of Federal policy is to ``maintain the highway 
infrastructure asset system in a state of good repair.'' They added 
that ``Congress did not intend for States to set their performance 
goals to include assets being in worse condition in the future than 
they currently are.'' A letter from Steve Mueller Consultancy stated it 
would be ``wrong to accept declining conditions on our roads of 
national importance.'' They added that State DOTs and MPOs should 
reprioritize their expenditure plans to change because the declining 
condition is ``unacceptable.''
    However, comments from AASHTO, Association of Metropolitan Planning 
Organizations (AMPO), Metropolitan Transportation Commission, Mid-
America Regional Council, New York

[[Page 5898]]

Metropolitan Transportation Council, city of Seattle Department of 
Transportation, an anonymous citizen, and the State DOTs of Alaska, 
Arkansas, California, Connecticut, Florida, Idaho, Iowa, Maine, 
Minnesota, Mississippi, Missouri, Montana, New Hampshire, New York, 
North Dakota, Oregon, Pennsylvania, South Dakota, Vermont, Washington 
State, and Wyoming stated that State DOTs and MPOs should have the 
flexibility to establish targets, including targets that have 
condition/performance holding steady or, in some situations, declining. 
They added that targets indicating declined condition/performance are 
discussed in the preamble of the NPRM but not in the proposed rule 
itself. These commenters recommended that specific language be included 
in the rule.
    The FHWA believes that State DOTs and MPOs have the authority to 
establish their targets at their discretion. Moreover, as stated 
previously in this section, MAP-21 does not provide FHWA the authority 
to approve or reject State DOT or MPO established targets. The FHWA 
believes that this rule does not hinder the ability of State DOTs and 
MPOs to establish targets that have performance holding steady or, 
declining targets. Thus, FHWA believes that specific language 
describing potential target level scenarios in the regulatory language 
is unnecessary. Therefore, FHWA retains the language in section 
490.105(a). The FHWA did add ``of this section'' to the paragraph to 
meet the publication requirements of the Federal Register, and improve 
the clarity and consistency of the text. This addition did not change 
the intent of the original text in the NPRM.
    In section 490.105(b), FHWA proposed in the NPRM that State DOTs 
and MPOs shall establish performance targets for the HSIP measures in 
accordance with section 490.209. The Alaska Department of 
Transportation and Public Facilities (Alaska DOT&PF) recommended that 
this paragraph should be removed because section 490.209 is not part of 
this rulemaking. The FHWA disagrees with the comment because FHWA felt 
this paragraph is necessary to point out target establishment 
requirements related to the HSIP measures that are different from this 
subpart. Therefore, FHWA retains the language in section 490.105(b).
    The FHWA did not receive any substantive comments regarding section 
490.105(c), therefore, FHWA made no changes.
Discussion of Section 490.105(d) Ownership
    Section 490.105(d) specifies that the targets established by State 
DOTs and MPOs shall, regardless of ownership, represent the 
transportation network or geographic area, including bridges that cross 
State borders, that are applicable to the pavement and bridge condition 
measures. Title 23 U.S.C. 150(c)(3) requires the establishment of 
measures for State DOTs to use to assess the condition of pavements on 
the Interstate System, the condition of pavements on the NHS (excluding 
the Interstate), and the condition of bridges carrying the NHS which 
includes on- and off-ramps connected to the NHS for the purpose of 
carrying out the NHPP. Additionally, 23 U.S.C. 150(d) requires State 
DOTs to establish performance targets that reflect the established 
measures. Furthermore, 23 U.S.C. 119(e)(7) specifies State requirements 
when it does not achieve or make significant progress toward achieving 
the established performance measures targets for the NHS.
    To implement the statutory provisions of 23 U.S.C. 150(c)(3), FHWA 
proposed that the pavement condition measures in subpart C are 
applicable to the mainline highways on the Interstate System and on the 
non-Interstate NHS and the bridge condition measures in subpart D are 
applicable to bridges carrying the NHS which includes on- and off-ramps 
connected to the NHS (sections 490.307 and 490.403). To ensure that the 
performance targets required under 23 U.S.C. 150(d) are applicable to 
the same extent to highways and bridges as the performance measures in 
sections 490.307 and 490.403, FHWA included the phrase ``regardless of 
ownership,'' in section 490.105(d).
    To implement the requirements of 23 U.S.C. 119(e)(7), section 
490.109(e) provides that FHWA would determine whether or not a State 
DOT achieved or made significant progress toward achieving the State 
DOT targets, consistent with the target scope described in section 
490.105(d), for the NHS NHPP targets. In the NPRM, FHWA recognized the 
limit of the direct impact State DOTs and MPOs can have on the 
performance outcomes within the State and the metropolitan planning 
area, respectively, and that State DOTs and MPOs need to consider this 
uncertainty when establishing targets. The FHWA further stated that 
some Federal and tribal lands contain roads and bridges carrying the 
NHS, which includes on- and off-ramps connected to the NHS that State 
DOTs would need to consider (as appropriate) when establishing targets. 
Finally, FHWA expressed a need for State DOTs and MPOs to consult with 
relevant entities (e.g., Federal Land Management agencies, State DOTs, 
MPOs, local transportation agencies, and tribal governments) as they 
establish targets to better identify and consider factors outside of 
their direct control that could impact future condition/performance.
    The FHWA received comments from 19 State DOTs (Arkansas, Colorado, 
Connecticut, Florida, Georgia, Iowa, Maine, Maryland, Michigan, 
Mississippi, Missouri, New Hampshire, Oklahoma, Oregon, Pennsylvania, 
Texas, Vermont, Virginia, and Washington State), AASHTO, AMPO, Atlanta 
Regional Council (ARC), Center for American Progress, Community 
Planning Association of Southwestern Idaho (COMPASS), National 
Association of Regional Councils (NARC), National Center for Pavement 
Preservation, NYMTC, Association of Texas Metropolitan Planning 
Organizations (TEMPO), and an anonymous commenter \14\ generally 
indicating that State DOTs and MPOs have no authority or control over 
maintenance and/or investment decisions on some of the assets on NHS. 
Therefore, State DOTs and MPOs should not be held responsible for the 
reporting of data, target establishment, and the condition of these 
assets (i.e., significant progress determination). The letters from the 
Connecticut, Virginia, and Washington State DOTs and AASHTO argued that 
State DOTs may not be able to legally collect data on assets they do 
not own.
---------------------------------------------------------------------------

    \14\ FHWA-2013-0053-0135.
---------------------------------------------------------------------------

    The AASHTO, AMPO, ARC, and the Mississippi and Tennessee State DOTs 
recommended that each agency (e.g., Federal Government, State DOT, 
tribal government, local agency, transit agency, and tolling authority) 
that has ownership of an NHS facility should report on and be held 
accountable for their portion of the system.
    As stated above, the statutory provisions under 23 U.S.C. 150(c)(3) 
require the establishment of measures for ``States to use to assess (I) 
the condition of pavements on the Interstate System; (II) the condition 
of pavements on the [NHS] (excluding the Interstate); [and] the 
condition of bridges on the [NHS]'' for the purpose of carrying out the 
NHPP. Also, 23 U.S.C. 150(d) requires States to establish performance 
targets that ``reflect the established measures.'' The MAP-21 also 
provides a description of the limits (or components) of the Interstate 
System and National Highway System in 23

[[Page 5899]]

U.S.C. 103(c) and 23 U.S.C. 103(b), respectively, and defines the terms 
``States'' and ``MPOs'' in 23 U.S.C. 101(a)(25) and 23 U.S.C. 134 (b), 
respectively. This statutory language in MAP-21 prescribes the 
applicability of the NHPP under 23 U.S.C. 119 and the applicability of 
performance measures and the scope of performance targets under 23 
U.S.C. 150.
    Considering this statutory language, MAP-21 requires that the 
performance management requirements (23 U.S.C. 150) and NHPP (23 U.S.C. 
119) apply to the entire NHS and Interstate System and not to a subset 
of the NHS (e.g., State DOT owned or operated Interstate System, State 
DOT owned or operated National Highway System), as the commenters would 
prefer. The MAP-21 does not define the terms ``State'' or ``MPO'' for 
purposes of 23 U.S.C. 150 and 119 as something other than already 
defined elsewhere in MAP-21. Accordingly, FHWA retains the language in 
section 490.105 (which requires that State DOTs and MPOs establish 
targets for the entire NHS and Interstate System within the State or 
metropolitan planning area, regardless of ownership).
    As stated in the NPRM, FHWA recognizes that there is a limit to the 
direct impact State DOTs and MPOs can have on the performance outcomes 
within the State and the metropolitan planning area, respectively. The 
FHWA encourages State DOTs and MPOs to consult with relevant entities 
(e.g., Federal Land Management Agencies, local transportation agencies, 
and tribal governments) as State DOTs and MPOs report performance data 
and establish targets. This will allow for a better assessment of the 
condition of pavements and bridges on the entire NHS and better 
identify and consider factors outside of their direct control that 
could impact future condition/performance.
    In section 490.105(d), FHWA added the phrase ``of this paragraph'' 
to improve the clarity and consistency of the text. This addition did 
not change the intent of the original text in the NPRM.
    In section 490.105(d)(1), FHWA made an editorial correction and 
replaced the word ``areawide'' with ``area wide.''
    The FHWA added cross reference numbers to section 490.105(d)(1)(i) 
through (iii) to clarify the specific section that corresponds to each 
measure. The original intent of the section did not change.
    Section 490.105(d)(2) is reserved.
Discussion of Section 490.105(d)(3) NHS Limits
    In section 490.105(d)(3), FHWA proposed requiring State DOTs to 
declare and describe NHS limits in their Baseline Performance Period 
Report at the beginning of each performance period for the purpose of 
target establishment, reporting, and progress evaluation and 
significant progress determination. To ensure consistency of network 
for target establishment, reporting, and progress evaluation and 
significant progress determination, the proposed language in section 
490.105(d)(3) further specified that any changes in NHS limits during a 
performance period would not be accounted for until the following 
performance period. As explained in the NPRM, FHWA proposed this 
methodology because it recognized that if NHS limits changed after a 
State DOT establishes its targets, actual measured performance of the 
transportation network within the changed NHS limits would represent a 
different set of highways as compared to what was originally used to 
establish the target. As a result, this difference could impact a State 
DOT's ability to make significant progress toward achieving targets.
    The FHWA received individual letters from ARC, Cemex USA, Oregon 
DOT, and Texas DOT and a joint letter from the ACPA and PCA in relation 
to dealing with changes in NHS limits during a performance period. The 
letter from Texas DOT stated that the proposed approach in dealing with 
NHS limit changes may cause ``overly burdensome'' bookkeeping to keep 
track of NHS network changes. A similar comment was found in the joint 
letter from ACPA and PCA and the letter from Cemex USA which stated 
that the proposed method does not take into consideration new pavements 
or additional lanes constructed, thereby inadvertently penalizing 
States for expanding the NHS as a means of upgrading performance. They 
recommended that the measures should reflect the changes in NHS limits. 
They also added that since the proposed measures are percentage-based, 
measures reflecting NHS changes would accurately take into 
consideration improvements made without ``artificially altering'' 
performance indicators.
    The Oregon DOT commented that the proposed approach appears to be 
too ``inflexible'' and may not reflect how investment decisions are 
actually made during the performance period due to changing route 
priorities. They added that the proposed approach ``looks backward in 
the mirror rather than forward which is needed to incorporate up to 
date planning and policy.''
    Finally, ARC agreed with the proposed approach that a baseline 
network must be identified and ``frozen'' for purposes of a reporting 
cycle, but they suggested that at regular intervals (i.e., 2 years), 
each State DOT should be permitted to adjust their networks and targets 
as they feel appropriate in collaboration with FHWA. The ARC commented 
that permitting the network to change on a regular basis does create a 
slight ``apples to oranges'' problem with analyzing long-term progress, 
but added that changes to the NHS network in reality are likely to be 
``infrequent and minimal'' in impact when compared to the overall 
network.
    Some additional comments related to the NHS limits were received by 
FHWA. The TEMPO and Texas DOT commented that the criteria used to 
identify the NHS are still being developed. They added that if this 
issue is not addressed before reporting and evaluation deadlines are 
implemented, State DOTs and MPOs could expend significant resources 
collecting, analyzing, and maintaining data that is not part of the 
final NHS. They also indicated that some portions of the NHS will not 
be included in the performance management effort resulting in 
``missing'' data segments. The TEMPO and Texas DOT recommended FHWA 
should not set deadlines for reporting on and evaluating performance 
measures until the NHS has been established nationwide and accepted by 
FHWA. The Seattle DOT made similar comments that before imposing NHS-
specific regulatory requirements, FHWA should reassess current NHS 
designation criteria based on functional classification to consider 
critical routes based on multiple criteria such as person trip volumes 
rather than on vehicle miles traveled.
    The FHWA evaluated the arguments made by commenters regarding the 
approach for dealing with potential NHS limits changes during a 
performance period. The FHWA recognizes that NHS limits will directly 
impact the performance data collection coverage, measure calculation, 
the extent of targets, significant progress determination, and 
determination of minimum levels for condition of pavements and bridges. 
The FHWA agrees with the comments from ACPA, Cemex USA, PCA, and Texas 
DOT that the proposed approach would exclude realigned and newly 
constructed NHS roads/lanes in the measure calculation as a means of 
improved condition/

[[Page 5900]]

performance. In addition to the impacts of NHS expansion, FHWA examined 
NHS contraction. In case of a NHS contraction, the approach proposed in 
the NPRM would have required State DOTs to report metrics for the part 
of NHS no longer designated as NHS for the entire performance period. 
Moreover, for both expansion and contraction cases, FHWA anticipates 
that communicating and explaining to the general public the condition/
performance of NHS based on previous NHS limit (i.e., baseline) would 
be particularly difficult. In addition to evaluating the comments, FHWA 
analyzed historical changes in the NHS network using HPMS data for each 
State. Based on the historical data, in general, FHWA found that NHS 
network changes are relatively small except when NHS expansion was 
required under MAP-21. In such case, FHWA plans to issue guidance to 
deal with mandated changes in NHS limits for implementing performance 
management.
    After consideration of the comments and the issues associated with 
the proposed approach dealing with the NHS limit changes, FHWA revised 
section 490.105(d)(3) in the final rule. The State DOTs are no longer 
required to declare and describe NHS limits in their Baseline 
Performance Period Report so the changes in NHS limits during a 
performance period would be accounted for. Since the National Highway 
System Data Item in HPMS and the Highway System of the Inventory Route 
Data Item in NBI are required to be reported to FHWA annually together 
with condition metric data, NHS limits for pavement condition measures 
will come from the same dataset submitted to HPMS in the same year as 
the condition metric data is submitted. The NHS designation for bridge 
condition measures will come from the same NBI data set as the 
condition metric data of the same year. Accordingly, FHWA removed 
section 490.107(b)(1)(ii)(E) because State DOTs no longer have to 
declare and describe NHS limits in their Baseline Performance Period 
Report. Also, FHWA amended section 490.109(d)(4). The NHS information 
for the baseline conditions, for the purpose of the significant 
progress determination of the achievement of the pavement and bridge 
condition targets, will come from the data reported in HPMS and NBI in 
the year in which the Baseline Period Performance Report is due to 
FHWA. The FHWA believes that the revised approach will eliminate the 
burden of bookkeeping of the multiple data sets by State DOTs and MPOs 
and will improve communicating the performance with the public. The 
FHWA also believes that it will make the NHS extent consistent with 
other performance publications of State data (e.g., Highway Statistics 
\15\ and Condition and Performance Report to Congress \16\). Since the 
calculated measure reflects the NHS limit change, States DOTs and MPOs 
should consider anticipated NHS limit changes when establishing their 
targets.
---------------------------------------------------------------------------

    \15\ Highway Statistics (FHWA): https://www.fhwa.dot.gov/policyinformation/statistics.cfm.
    \16\ Conditions and Performance Report to Congress (FHWA): 
https://www.fhwa.dot.gov/policy/2013cpr/.
---------------------------------------------------------------------------

Discussion of Sections 490.105(e)(1) and 490.105(f)(1) Implementation 
Timeline for State DOTs and MPOs
    The FHWA proposed the requirements for State DOT and MPO 
performance targets in sections 490.105(e) and 490.105(f), 
respectively. Section 490.105(e)(1) specified the schedule for State 
DOT target establishment as ``not later than 1 year of the effective 
date of this rule and for each performance period.'' Also in the NPRM, 
section 490.105(f)(1) specified a schedule for MPO target establishment 
as ``no later than 180 days after the respective State DOT(s) 
establishes their targets.'' The proposed regulatory language 
specifying target establishment schedules came directly from the 
statutory language in MAP-21.\17\ Accordingly, FHWA proposed a schedule 
in section 490.107(b) for State DOT target and progress reporting as 
the first report (i.e., State Biennial Performance Report) that would 
be due to FHWA by October 1, 2016 and subsequent report due every 2 
years on October 1 thereafter. The October 1, 2016, and subsequent 
biennial due dates are a statutory requirement.\18\ To implement these 
statutory requirements in a consistent manner, FHWA proposed a definite 
period of time (i.e., performance period) during which condition/
performance would be measured, evaluated, and reported. The FHWA 
proposed a consistent time period of 4 calendar years that would be 
used to assess pavement and bridge conditions. The FHWA carefully 
examined this proposed time period so that it aligns with the timing of 
the biennial performance reporting requirements under 23 U.S.C. 150(e). 
This proposed time period is calendar year based so that it is 
consistent with data reporting requirements currently in place to 
report pavement and bridge conditions.
---------------------------------------------------------------------------

    \17\ 23 U.S.C. 150(d)(1) and 23 U.S.C. 134(h)(2)(C).
    \18\ 23 U.S.C. 150(e).
---------------------------------------------------------------------------

    During the development of the NPRM, FHWA anticipated the final rule 
for the proposal to be effective no later than October 1, 2015. The 
Oregon DOT commented that the effective date would be difficult to meet 
and suggested FHWA consider a delayed effective date of January 2017. 
As stated in the preamble of the NPRM, the October 1, 2015 date would 
have allowed for at least a 1-year period for State DOTs to establish 
targets so that they can be reported in the first biennial performance 
report (i.e., Baseline Performance Period Report) that would be due to 
FHWA by October 1, 2016. The FHWA also stated in the preamble of the 
NPRM that it recognizes that if the final rule is effective after 
October 1, 2015, the due date to report State DOT targets for the first 
performance period may need to be adjusted, or FHWA would need to issue 
implementation guidance that would provide State DOTs a 1-year period 
to establish and report targets.
    The FHWA received numerous comments that the 1-year duration 
between the effective date of this rule and the first reporting of 
targets (i.e., Baseline Performance Period Report for the first 
performance period) is difficult for State DOTs and MPOs to meet.
    The AASHTO and Connecticut DOT commented that the process to 
collect/analyze data, understand the trends, and establish targets will 
require additional time and that the submission of the first Baseline 
Performance Period Report by October 1, 2016, is ``truly unrealistic.'' 
The AASHTO and Mississippi and Connecticut DOTs argued that the 
opportunity for ``cold weather States'' to collect data for baseline 
condition/performance of 2015 is limited because all data has to be 
collected between the effective date (October 1, 2015) and the end of 
calendar year 2015 for 2016 condition/performance reporting. The North 
Dakota DOT and Seattle DOT made similar comments as AASHTO did. The 
Michigan and Minnesota DOTs expressed their support for the AASHTO 
comments.
    The Texas DOT commented that State DOTs will need more time to 
transition and measure the metrics required that are not currently 
collected, and to develop some history to establish the targets, 
especially for the Interstate since the proposed metric is based on the 
overall condition.
    The Mississippi DOT commented that many State DOTs already have 
multi-year contracts in place for their data collection. They said that 
the changes related to the expanded NHS and

[[Page 5901]]

additional data requirements would make it impossible for many State 
DOTs to meet the proposed reporting timelines. Furthermore, they said 
that if additional data required under this rule is obtained, State 
DOTs will not have the historical data to analyze trends to effectively 
establish targets. The AMPO, COMPASS, and TEMPO made similar comments 
that the timeline in NPRM for identifying baseline condition/
performance and reporting targets for the first performance period is 
``aggressive.'' They added that the proposed timeline affords little 
ability or is insufficient for States to identify reasonably attainable 
targets.
    The Southeast Michigan Council of Governments (SEMCOG) commented 
that the additional and unfamiliar data requirements (i.e., cracking, 
faulting, rutting, and roughness data) make it difficult to meet the 
accelerated timelines for collecting the data. They noted that the NPRM 
assumes that they will be able to work with the Michigan DOT and finish 
the reporting within 1 year. They commented that the reporting time 
will actually be much less than 1 year, especially in the first year. 
The Missouri DOT stated that including cracking, rutting, and faulting 
metrics under this rule needs to be delayed until national standards 
are developed and vetted through a quality control process. They added 
that these metrics will result in additional costs to collect, analyze, 
and manage the data.
    The New York State DOT cited that FHWA intends to use HPMS as a 
primary mechanism to report pavement performance data. The New York 
State DOT recommended that State DOTs be provided adequate time and 
resources to implement the necessary process and system changes.
    The Michigan DOT added that their pavement performance management 
``took years to develop, test, and refine'' and recommended an 
alternative implementation schedule and process until the national 
measures mature enough that State DOTs become confident using them as 
the basis for investment decisions. The NYMTC ``strongly objected'' to 
the proposed October 1, 2015, effective date for the data collection 
and reporting requirements associated with the performance measure 
rules because they do not have sufficient information available about 
current pavement conditions using the proposed measures and data 
collection methods. They also added that, given the constraints on 
available data and analysis tools, they cannot predict the future 
conditions.
    The AASHTO and Connecticut and Tennessee DOTs suggested providing 
State DOTs the opportunity to extend the deadline if they demonstrate 
that they are working toward and making progress in adopting all 
requirements. The AASHTO and Connecticut and North Dakota DOTs 
commented that the coordination for establishing targets will require 
additional time because it encompasses a wide range of performance 
areas that can be influenced by local and regional needs. The Michigan 
State Transportation Commission and Michigan Asset Management Council 
commented that FHWA must allow State DOTs sufficient time to adequately 
coordinate with local agencies after the rules are finalized but before 
implementation begins.
    The AASHTO and Connecticut and Oregon DOTs recommended a 24-month 
phase-in period between the effective date and the first target 
reporting for the Interstate pavement and bridge condition measures in 
sections 490.307(a)(1) and (2) and 490.407(c). And, they recommended a 
48-month phase-in period between the effective date and the first 
target reporting for the Non-Interstate NHS pavement condition measures 
in section 490.307(a)(3) and (4). The Alaska DOT&PF recommended at 
least a 4-year period to report all new data under this rule since the 
NHS has also changed with MAP-21. The AASHTO and Connecticut and Oregon 
DOTs also recommended delaying significant progress determination under 
section 490.109.
    The NYMTC also asked FHWA to consider the impacts of this proposed 
rule on State DOTs and MPOs that must adjust their planning and 
programming processes to the new requirements under this rule. The 
NYMTC requested that FHWA lengthen the amount of time before penalties 
are imposed so that State DOTs and other agencies could make 
adjustments while they have the maximum amount of flexibility in the 
use of available funding.
    The AASHTO and Connecticut and New Jersey DOTs commented that the 
time frame for enacting minimum condition level determination for 
bridges under section 490.413 is too short. They commented that State 
DOTs will have no time to assess their current situation and then 
implement reasonable projects to meet the 10 percent threshold. The 
AASHTO and Connecticut and Oregon DOTs recommended not determining 
minimum condition levels under sections 490.315 and 490.411 until 48 
months after the effective date.
    The FHWA appreciates the comments on the proposed timeline. The 
FHWA understands that collection of new data items, development of 
tools, coordination, planning process adjustments, and integrating with 
other regulatory requirements to implement this rule will take time and 
effort for State DOTs. The FHWA recognizes that data required in 
section 490.309 for the pavement condition measures is new to some 
State DOTs. Therefore, FHWA amended the proposed data collection 
timeline for the pavement condition measures to reflect the effective 
date of this final rule. (See discussion section for section 490.309(a) 
for data collection timeline for the pavement measures.) Accordingly, 
FHWA retains phase-in requirements related to the targets for 
Interstate pavement measures and significant progress determination for 
those targets, as provided in sections 490.105(e)(1) and 490.109(e)(3), 
respectively, so that the effective date of this final rule is 
reflected. The FHWA also retains the transition of non-Interstate 
pavement measure in section 490.313(e) as proposed.
    In addition to the challenges associated with new data items, FHWA 
recognizes that State DOTs are challenged with NHS expansion, lack of 
historic data and analytical tools for establishing targets, additional 
coordination requirements, adjustment to their planning process, and 
integrating with other regulatory requirements. However, as stated 
previously, State DOT target establishment ``not later than 1 year of 
the effective date of this rule'' in section 490.105(e)(1) is a 
statutory requirement under 23 U.S.C. 150(d). The date for reporting 
progress toward targets of October 1, 2016 is also a statutory 
requirement in 23 U.S.C. 150(e). Therefore, FHWA cannot delay the due 
date of State DOT target establishment or reporting on performance 
targets.
    Since this rule is being issued and effective after October 1, 
2016, FHWA issued guidance \19\ on the Initial State Performance Report 
on August 31, 2016, to provide State DOTs the opportunity to comply 
with the statutory deadline for the first performance report under 23 
U.S.C. 150(e). In this guidance, FHWA recognized that State DOTs would 
not have established targets for the measures in this rule. The FHWA 
simplified the reporting requirement by only requiring a description of 
the planned processes for target establishment and coordination with 
relevant MPOs and other agencies that will occur in the selection of 
targets. The FHWA has amended the implementation timeline to reflect 
the

[[Page 5902]]

effective date of this final rule. (See subsequent discussion in this 
section for more details on timeline adjustments.)
---------------------------------------------------------------------------

    \19\ FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/160831.cfm.
---------------------------------------------------------------------------

    In response to the comments from AASHTO and Connecticut and New 
Jersey DOTs above, FHWA disagrees that the time frame for enacting 
minimum condition level determination for bridges on the NHS is too 
short and that State DOTs will have no time to assess their current 
situation and then implement reasonable projects to attempt to meet the 
10 percent threshold. The MAP-21 was enacted in October 2012. In 
September of 2012, FHWA provided initial guidance through its MAP-21 
Bridge Q&A Web site \20\ on how FHWA intended to implement the 
statutory requirements under the 23 U.S.C. 119(f)(2). Additionally, 
State DOTs are familiar with the classification of structurally 
deficient as it had been used for decades to implement the Highway 
Bridge Program. Because of this familiarity, State DOTs are well aware 
of their current situation in regards to structurally deficient bridges 
on the NHS. Based on FHWA guidance provided on the MAP-21 Bridge Q&A 
Web site, which describes the implementation schedule of the minimum 
condition level determination, and the familiarity State DOTs have with 
the classification of structurally deficient, State DOTs have had 
sufficient time to take actions to meet the 10 percent threshold. 
Because of its long implementation history and State DOTs' familiarity 
with the classification of structurally deficient bridges, FHWA 
believes that implementing the requirement of 23 U.S.C. 119(f)(2) does 
not depend on the effective date of this rule. Moreover, FHWA has been 
examining NBI data that State DOTs have been reporting since the 
enactment of MAP-21 and found sufficient evidence that State DOTs are 
taking actions to meet the statutory requirement. For example, if the 
2013 NBI data was used as the baseline for structurally deficient 
bridges carrying the NHS, then there were potentially 13 State DOTs 
that would have been affected by the penalty if the trend of percentage 
structurally deficient deck area of greater than 10 percent continued 
for another 2 years. However, based on the 2014 NBI data, the number of 
State DOTs that would be affected by the penalty dropped to eight. 
Based on 2015 NBI data, the number dropped even further to six State 
DOTs. This dramatic change in the potential number of States leads FHWA 
to conclude that some State DOTs have taken action in addressing their 
NHS structurally deficient bridges. Therefore, FHWA believes that a 
delay in implementing the 23 U.S.C. 119(f)(2) provision is not 
necessary.
---------------------------------------------------------------------------

    \20\ Question and Answer #2 at: http://www.fhwa.dot.gov/map21/qandas/qabridges.cfm.
---------------------------------------------------------------------------

    The Louisiana DOT recommended the first data collection cycle, to 
be used in performance analysis, be pushed back to a later date. The 
Louisiana DOT cited a large number of conflicts between HPMS, the 
AASHTO specifications, the Fiscal Management Information System (FMIS) 
requirements for HPMS, and the proposed rules. They commented that 
these conflicts will not allow an ``apples to apples'' data comparison 
or analysis between the current year and future years, nor among 
States. However, the Louisiana DOT did not identify how delaying the 
start of the data collection would mitigate the perceived conflicts or 
how anything having to do with the FMIS impacts the data reporting for 
HPMS. The FHWA understands that State DOTs will need some time to 
adjust contracts and programs to meet the data reporting requirements 
and the final rule has identified the first reporting dates to be 2019 
for Interstate routes and 2021/2022 for non-Interstate NHS routes.
    A letter \21\ from the State DOTs of Maine, New Hampshire, and 
Vermont recommended a bi-directional format to support FMIS, which 
intends to use HPMS data as its source. In the NPRM, FHWA proposed 
Interstate pavement condition data to be collected on both directions 
of the Interstate highway in section 490.309(b)(1)(i). However as a 
result of further studies,\22\ FHWA amended section 490.309(b)(1)(i) so 
that the pavement condition data collection on Interstate is only 
required in one direction of highway, eliminating the need for 
examining a bi-directional format to support FMIS and the potential 
discrepancies with HPMS.
---------------------------------------------------------------------------

    \21\ Docket Document FHWA-2013-0053-0096--http://www.regulations.gov/#!documentDetail;D=FHWA-2013-0053-0096.
    \22\ ``Evaluation of Pavement Conditions on the Interstate 
System: Preliminary Summary'', Rada 2015.
---------------------------------------------------------------------------

    The AMPO and COMPASS stated that the process for amending 
Metropolitan Planning Agreements is a time consuming and requires 
considerable opportunity for public input. They recommended a timeline 
that could lead to more realistic targets. The AASHTO, NYMTC, and 
Oregon and Washington DOTs urged FHWA to delay the MPO target 
establishment requirement until the start of the second performance 
period. They argued that there will be lack of complete (i.e., full 
extent) performance data for cracking, rutting, and faulting for the 
Non-Interstate NHS, where full extent data will only be collected for 
the second half of the first performance period, as described in 
sections 490.309(b)(2)(ii) and 490.313(e). They added that until 
complete data is collected and evaluated, the MPOs might have a 
difficult time understanding the complexities of this data and 
establishing targets. They also recommended delay because it will allow 
additional time for State DOTs and MPOs to further develop their 
collaborative efforts in response to this rule and the Asset Management 
Plan rule (23 CFR 515). The NARC commented that additional time for 
MPOs would be helpful because of the significant collaboration and the 
data collection requirements in this rule.
    The SEMCOG expressed the opinion that a piecemeal approach is being 
used to develop the performance measures in this rule. This approach 
makes it difficult to identify the total system performance 
requirements, the complete data needs, and costs to collect the 
required data and to program and implement projects to address the 
performance measures.
    The FHWA appreciates these comments and understands that 
implementing this rule takes time and effort for MPOs as they face 
similar challenges to State DOTs. In response to comments related to 
the Metropolitan Planning Agreement, FHWA amended the language in 
section 490.107(c)(1) to remove the requirement to use the agreement as 
the means to document how MPOs will report their established targets to 
their respective State DOTs. The FHWA also amended the language in 
section 490.105(f)(8) to remove the requirement to document the target 
adjustment process in the Metropolitan Planning Agreement. (See 
discussion sections for sections 490.105(f)(8) and 490.107(c)(1) for 
more details on Metropolitan Planning Agreement for MPO target 
adjustment and reporting, respectively.) The FHWA re-iterates that the 
State DOT target establishment schedule of ``not later than 1 year of 
the effective date of this rule'' in section 490.105(e)(1) and MPO 
target establishment schedule of ``no later than 180 days after the 
respective State DOT(s) establishes their targets'' in section 
490.105(f)(1) are statutory requirements under 23 U.S.C. 150(d) and 23 
U.S.C. 134(h)(2)(C), respectively. Therefore, to meet the statutory 
mandates, FHWA cannot delay the due date of the MPO target 
establishment. (See discussion on MPO implementation schedule in 
section 490.105(f)(1).)

[[Page 5903]]

    As discussed above and in the NPRM, FHWA described its plans in the 
event that the final rule would not be effective until after October 1, 
2015. The FHWA stated in the NPRM that, if it becomes clear that the 
final rule will not be effective until after October 1, 2015, FHWA 
would consider adjusting the first performance period in the final rule 
or would issue implementation guidance that would provide State DOTs a 
1-year period to establish and report targets. As this rule is issued 
and effective after October 1, 2015, providing State DOTs less than 1 
year to establish targets prior to the October 1, 2016 report, FHWA has 
amended the timeline in the final rule. These adjustments are necessary 
to ensure that State DOTs have at least 1 year between the effective 
date of this rule and biennial performance reporting of their target 
while adhering to the statutory reporting due dates \23\ under 23 
U.S.C. 150(e). Therefore, as stated in the NPRM, FHWA amended the due 
date for State DOT on reporting their targets for the first performance 
period from October 1, 2016, to October 1, 2018. To accommodate the 
amendment of the reporting date for the first performance period, FHWA 
adjusted the start of first performance period (and start dates for 
subsequent performance periods) in the final rule so that target 
reporting could be aligned with corresponding performance periods. 
Although the due date for State DOT on reporting their targets for the 
first performance period is October 1, 2018, this amendment does not 
exempt State DOTs from the October 1, 2016, report required under 23 
U.S.C. 150(e). As such, FHWA issued guidance \24\ on the Initial State 
Performance Report on August 31, 2016, to provide State DOTs the 
opportunity to comply with the statutory deadline for the first 
performance reporting under 23 U.S.C. 150(e). In this guidance, FHWA 
recognized that State DOTs would not have established targets for the 
measures in this rule. The FHWA simplified the reporting requirement by 
only requiring a description of the planned processes for target 
establishment and coordination with relevant MPOs and other agencies 
that will occur in the selection of targets. Since this final rule was 
not effective by October 1, 2015, FHWA adopted the following in this 
final rule:
---------------------------------------------------------------------------

    \23\ Report no later than October 1, 2016 and biennially 
thereafter.
    \24\ FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/160831.cfm.
---------------------------------------------------------------------------

     State DOTs shall establish targets for the first 
performance period not later than 1 year of the effective date of this 
rule as specified in section 490.105(e)(1) to meet the statutory 
requirement in 23 U.S.C. 150(d).
     The MPOs shall establish targets for the first performance 
period no later than 180 days after the respective State DOTs establish 
their targets as specified in section 490.105(f)(1) to meet the 
statutory requirement under 23 U.S.C. 134(h)(2)(C).
     The first performance period shall begin on January 1, 
2018, and shall end on December 31, 2021, and subsequent 4-year 
performance periods shall follow thereafter, as provided in as provided 
in section 490.107(b) and shown in Figure 1 below.
     The State DOTs will begin collecting Interstate pavement 
condition data (IRI, rutting (asphalt pavements), faulting (jointed 
concrete pavements), and Cracking Percent) in accordance with section 
490.309(b)(1) in calendar year 2018.
     The State DOTs will begin collecting non-Interstate NHS 
pavement condition data (IRI, rutting (asphalt pavements), faulting 
(jointed concrete pavements), and Cracking Percent) in accordance with 
section 490.309(b)(2) in calendar year(s) 2020/2021.
     The State DOTs shall submit their first biennial 
performance report (i.e., Baseline Performance Period Report for the 
first performance period) on October 1, 2018. Subsequent biennial 
performance reports are due every 2 years after the first biennial 
performance report, as provided in section 490.107(b).
     The FHWA will make first significant progress 
determinations after State DOTs report their Mid Performance Period 
Progress Report for the first performance period on October 1, 2020, 
and biennially thereafter.
     The FHWA will not make a determination of significant 
progress toward the achievement of 2-year targets for Interstate System 
pavement condition measures in calendar year 2020, as discussed in 
section 490.109(e)(3)(i).
     To meet the statutory requirement under 23 U.S.C. 
119(f)(2), FHWA will make the first minimum bridge condition level 
determination in calendar year 2016 (by October 1, 2016) and in 
calendar year 2017 (by October 1, 2017) by considering structurally 
deficient as a classification given to a bridge which has significant 
load carrying elements in Poor or worse condition, or the adequacy of 
the waterway opening provided by the bridge is determined to be 
insufficient to the point of causing overtopping with intolerable 
traffic interruptions. Beginning with calendar year 2018 and each 
calendar year thereafter, FHWA will make the minimum bridge condition 
level determination by considering structurally deficient as a 
classification given to a bridge which has any component in Poor or 
worse condition, as defined in section 490.405 and described in section 
490.411(b).
     The FHWA will make the first minimum Interstate pavement 
condition level determination by October 1, 2019, and each year 
thereafter, as provided in section 490.317.

[[Page 5904]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.015

    The FHWA retains the language in section 490.105(e)(1), as proposed 
in the NPRM, because the due date for State DOT target establishment of 
``not later than 1 year of the effective date of this rule'' in this 
paragraph is a statutory requirement under 23 U.S.C. 150(d).
Discussion of Sections 490.105(e)(2) and 490.105(f)(2) Target 
Coordination
    Sections 490.105(e)(2) and 490.105(f)(2) specify State DOT and MPO 
coordination requirements for the establishment of targets, as provided 
in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II). In 
the NPRM, FHWA sought comment on alternative approaches that could be 
considered to effectively implement the coordination requirements under 
MAP-21.
    The Mid-America Regional Council supported the language that 
encourages State DOT and MPO coordination ``to the extent practicable'' 
in target establishment. They also encouraged FHWA to offer guidance 
and share best practices of coordination among neighboring States and 
MPOs. The New York State Association of Metropolitan Planning 
Organizations (NYSAMPO) supported the language in section 
490.105(e)(2). They also noted that a ``significant portion'' of the 
NHS in New York is owned by local governments and public authorities. 
They pointed out that the rule is silent on coordination with other 
owners and noted that they would support language requiring such 
coordination. The Orange County Transportation Authority made a similar 
comment and urged FHWA to include language to support MPO coordination 
with county transportation commissions and local DOT districts to 
establish targets and funding priorities, and to allow targets to be 
established at the sub-regional level.
    The Mid-America Regional Council also commented that if State DOTs 
choose to establish additional targets, under section 490.105(e)(3), 
for urbanized areas, the rule should encourage coordination with the 
corresponding MPOs.

[[Page 5905]]

    The Florida DOT shared their coordination efforts in their letter. 
The Florida DOT held performance measure workshops in 2014 and 2015 for 
the representatives of various State DOT Offices, Federal Transit 
Administration, MPOs, and FHWA. They stated that the workshops resulted 
``in a rich dialogue with numerous ideas and opinions conveyed through 
discussion and in writing.'' The Florida DOT also indicated in their 
letter that a Performance Measurement Collaboration Task Force has been 
formed to coordinate performance measurement activities with FHWA, FTA, 
Florida's 27 MPOs, and the Florida Metropolitan Planning Organization 
Advisory Council. According to Florida DOT, the task force will 
continue to be used to exchange information during the rulemaking 
process and implementation. The Florida DOT also indicated that they 
plan to examine opportunities for data sharing, coordinated target 
establishment, and combined reporting where practical and efficient. 
They added that they will look for better ways to communicate the 
importance of good transportation performance to their State's economy 
and their quality of life. The FHWA appreciates the Florida DOT sharing 
their coordination efforts.
    The Illinois DOT commented that the portions of NHS which are not 
under the jurisdiction of the State DOT will require coordination 
between Illinois DOT and MPOs on the selection of targets to ensure 
consistency, to the maximum extent practicable.
    The AASHTO and the Connecticut and Oregon DOTs commented that 
performance measurement and management of NHS pavements and bridges are 
not the only part of the planning effort State DOTs must undertake in 
order to deliver a successful program to the public. They emphasized 
that other tasks and the level of effort and coordination with local 
agencies, the public, and other stakeholders is ``substantial.'' They 
urged FHWA to recognize that the entire process to collect/analyze 
data, understand the trends, and establish targets needs to be made 
across a wide range of performance areas that can be influenced by 
local and regional needs. Finally, they commented that ``coordination 
takes time.''
    The AASHTO and the Oregon and Washington DOTs disagreed with the 
phrase ``to ensure consistency, to the maximum extent practicable'' in 
sections 490.105(e)(2) and 490.105(f)(2). They recommended that the 
regulatory text change to ``to facilitate or encourage consistency.'' 
They argued that this modification would reduce the chances of 
unreasonable expectations on State DOTs during the implementation.
    An anonymous commenter \25\ stated that coordination between key 
stakeholders (such as MPOs) and State DOTs needs to be more active. The 
commenter argued that requiring consultation with MPOs is not enough, 
and collaboration in goal development is important. Another anonymous 
commenter \26\ noted the importance of performance and funding for the 
entire statewide-non-Interstate NHS and commented that a State DOT 
should not be allowed to give preference to funding projects on 
highways within their jurisdiction merely because they are within their 
jurisdiction.
---------------------------------------------------------------------------

    \25\ Comment #: FHWA-2013-0053-0140.
    \26\ Docket Document FHWA-2013-0053-0135.
---------------------------------------------------------------------------

    The North Carolina DOT commented that most of the NHS in North 
Carolina is owned and operated by North Carolina DOT. They inquired 
whether or not coordination is ``relevant'' for North Carolina DOT.
    The Northeast Ohio Areawide Coordinating Agency commented that, 
unless there is a financial rationale or specific policy to coordinate 
targets, coordination is unlikely, particularly as State laws varies 
regarding the responsibility of asset management.
    The Southern California Association of Governments (SCAG) 
recommended clear provisions be provided that outline the exact 
coordination process between State DOTs and MPOs toward the 
establishment of performance targets. A private citizen, Joyce Dillard, 
commented that the development of consistent targets across a State can 
only be achieved when the targets take into account State required 
plans already in existence, such as the General Plan and its 
Circulation Element.
    Finally, the NARC commented that the success of the national 
performance management program will rely in part on the extent to which 
State DOTs and their MPOs are able to work together, establish common 
ground, and find complementary purpose. They made reference to the 
discussion of section 490.105(e)(2) in the NPRM which states ``FHWA 
recognizes the need for State DOTs and MPOs to have a shared vision on 
expectations for future condition/performance in order for there to be 
a jointly owned target establishment process.'' The NARC stated that 
``in some cases, this shared vision is a difficult--if not impossible--
standard.'' The NARC encouraged FHWA to foster a ``shared vision,'' and 
recommended that FHWA ``take a deeper look'' into case studies, peer 
exchanges, and other input from State DOTs and MPOs in coordination for 
the establishment of targets. Finally, NARC commented that this is an 
opportunity to explore existing relationships between State DOTs and 
MPOs, and create stronger ties between them.
    The FHWA appreciates the comments received regarding coordination. 
The FHWA plans to provide technical assistance to the State DOTs and 
MPOs through a number of means, including the issuance of guidance, 
conducting peer reviews and workshops, sharing best practices, and 
conducting training on topics such as target setting, implementation of 
performance-based planning and programming, interagency coordination, 
data collection, and performance progress reporting. The language in 
sections 490.105(e)(2) and 490.105(f)(2) mirror the statutory language 
in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 134(h)(2)(B)(i)(II) and 
the regulatory language in 23 CFR 450.206(c)(2) and 23 CFR 
450.306(d)(2)(iii) of the final Planning Rule. The FHWA believes the 
phrase ``selection of targets'' in 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 
U.S.C. 134(h)(2)(B)(i)(II) applies to adjustment of targets. The FHWA 
expects State DOT and MPO coordination requirements to be carried out 
for both establishment and adjustment of State DOT and MPO targets in 
sections 490.105(e)(2) and 490.105(f)(2). The final Planning Rule 
considers performance target selection as part of statewide and 
metropolitan transportation planning processes. Therefore, as part of 
the target selection process, State DOTs are required to consider the 
concerns of relevant Federal Land Management agencies and Indian tribal 
governments, and cooperate with affected local elected and appointed 
officials with responsibilities for transportation (or applicable 
regional transportation planning organization(s) identified in 23 CFR 
450.208(a)), when selecting performance targets. (See 23 CFR 450.206, 
23 CFR 450.208, and 23 CFR 450.306 of the final Planning Rule for more 
details on planning and coordination processes.) The FHWA also 
encourages State DOTs to coordinate with relevant MPOs and other 
stakeholders identified in 23 CFR 450.208(a) when establishing 
additional targets, described in section 490.105(e)(2).
    The FHWA amended language in sections 490.105(f)(8) and 
490.107(c)(1) to remove the requirement to document the target 
adjustment process and reporting of targets in the Metropolitan 
Planning Agreement. The FHWA replaced it with a requirement to

[[Page 5906]]

document the target adjustment process in a manner that is mutually 
agreed upon by State DOTs and MPOs. (See discussion sections for 
sections 490.105(f)(8) and 490.107(c)(1).) The FHWA recognizes that the 
performance management of NHS pavements and bridges are not the only 
part of the planning effort State DOTs and MPOs are required to 
undertake. The FHWA also recognizes that the level of effort and 
coordination with local agencies, the public, and other stakeholders is 
substantial and takes time. As discussed in section 490.105(d), the 
target scope (or the extent of target) for a State DOT consists of the 
entire NHS within the State, and the target scope for an MPO is the 
entire NHS within the metropolitan planning area. For this reason, 
State DOTs and MPOs are required to establish targets for the entire 
system within their respective areas, regardless of who owns the 
system. The section also requires close coordination between State DOTs 
and MPOs in selection of State DOT and MPO targets.
    In response to the comments from North Carolina DOT and Northeast 
Ohio Areawide Coordinating Agency, coordination in the target selection 
process is required under 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 
134(h)(2)(B)(i)(II), as stated above. Therefore, coordination is not an 
option, but it is a requirement under statute. Moreover, coordination 
for target selection is not bound by ownership of assets or asset 
management responsibilities, but must be consistent with coordination 
requirements in the statewide and metropolitan transportation planning 
processes.
    In response to SCAG's comments, FHWA believes that the exact 
coordination process for target selection of an area should be 
determined by the relevant State DOTs and MPOs in that area. To help 
establish this process, FHWA plans to provide best practices, Webinar 
opportunities, and other resources on target selection coordination 
processes so that the coordination process is effectively implemented.
    As stated earlier, the phrase ``to ensure consistency, to the 
maximum extent practicable'' in sections 490.105(e)(2) and 
490.105(f)(2) is statutory language in 23 U.S.C. 135(d)(2)(B)(i)(II) 
and 23 U.S.C. 134(h)(2)(B)(i)(II). The FHWA retains the language in 
sections 490.105(e)(2) and 490.105(f)(2), as proposed in the NPRM.
Discussion of Section 490.105(e)(3) Additional Target
    The FHWA proposed to allow State DOTs to establish additional 
targets for any of the proposed measures in subparts C and D, beyond 
the required statewide target. The State DOT may establish additional 
targets for any number and combination of urbanized areas and a target 
for the non-urbanized area for any or all of the proposed measures. 
This is intended to give State DOTs flexibility when establishing 
targets, and to aid State DOTs in accounting for differences in 
urbanized areas and the non-urbanized area. For example, a State DOT 
could choose to establish additional targets for a single urbanized 
area, a number of urbanized areas, or all urbanized areas separately or 
collectively. For State DOTs that want to establish a non-urbanized 
target, it would be a single target that applies to the non-urbanized 
area statewide. In the NPRM, FHWA sought comments on optional 
additional targets for urbanized and non-urbanized areas. The FHWA also 
sought comments on any other flexibility it could provide related to 
the voluntary establishment of additional targets.
    The AASHTO and the Connecticut and New York DOTs supported the 
proposed approach for optional additional targets for urbanized and 
non-urbanized areas beyond the required statewide target. The AASHTO 
stated that State DOTs will voluntarily establish additional targets 
for various geographical boundaries on an ad hoc basis, working with 
their MPOs and local agencies. The AASHTO added that no other 
flexibilities need to be provided except that the establishment of 
additional targets should be at the sole discretion of State DOTs and 
not encumbered by Federal reporting or other requirements. The 
Connecticut and New York DOTs echoed AASHTO's comment.
    The Georgia DOT commented that the proposed approach provides 
adequate flexibility in setting targets that will allow differentiation 
between urban and rural areas. The New Jersey DOT recommended allowing 
additional targets based on jurisdictional limits of each of the 
various stewards of the NHS and bridge ownership boundaries. The Oregon 
DOT recommended allowing States to establish targets of importance to 
them to provide flexibility in additional targets. The Tennessee DOT 
stated that they do not believe that it is necessary to provide for 
separate targets for urbanized and non-urbanized areas at this time.
    The Texas DOT commented that optional targets for Texas may be 
needed for operational needs, but not for collective reporting. They 
added that many factors could come into play in optional targets, such 
as climate zones, subgrade, massive industry expansion (e.g., energy 
sector). The Texas DOT incorporates these factors into district level 
target setting as it relates to pavement asset condition. They noted 
that these district level targets accumulate to one State target.
    The Missouri State DOT commented that the additional targets should 
only be considered ``if the MPOs desire to have a different target than 
the State DOT.'' The Mid-America Regional Council and NARC commented 
that when a State DOT chooses to establish urbanized and non-urbanized 
area targets, State DOTs should be encouraged or required to coordinate 
those targets with relevant MPOs and rural transportation planning 
organizations. The TEMPO recommended usage of the terms ``rural,'' 
``urban,'' and ``urbanized'' areas, and recommended urbanized area 
targets for the NHS. The NYMTC, PSRC, and Joyce Dillard recommended 
that additional flexibility should be provided for State DOTs to 
establish targets for metropolitan planning areas or urbanized areas. 
Joyce Dillard also suggested that MPO areas should be viewed in sub-
areas for Transportation Management. The NYMTC added that one benefit 
of using metropolitan planning areas is that the boundaries are likely 
to change less frequently than urbanized area boundaries, allowing for 
a longer period of time during which measures would be evaluated on a 
consistent basis.
    Questions were asked by several agencies regarding the additional 
targets. The Florida DOT asked the reason for the requirements in 
section 490.105(d)(3) for declaring and describing urbanized area 
boundaries within the State boundary in the Baseline Performance Period 
Report (required by section 490.107(b)(1)) for the additional targets. 
The Colorado DOT questioned the advantages of setting additional 
targets when these targets are not subject to significant progress 
determinations under section 490.109(e). Similarly, the NEPPP 
questioned the incentive of establishing additional targets.
    The FHWA appreciates the comments on the voluntary establishment of 
additional targets and on other flexibilities it could provide. The 
FHWA strongly encourages State DOTs to monitor condition/performance by 
different geographic areas (e.g.,

[[Page 5907]]

jurisdiction, population, functional class, planning, terrain, and 
climate) to better understand the location dependency of condition/
performance. The FHWA encourages State DOTs to establish targets beyond 
the required statewide targets where they feel necessary. The FHWA 
agrees with the comments from AASHTO and the Connecticut and New York 
State DOTs that State DOT established targets beyond the required 
statewide targets are at the sole discretion of State DOTs. This 
agreement was evident in the NPRM and in this final rule because the 
language does not require State DOTs to establish these targets. 
However, if a State DOT decides to establish urban or non-urbanized 
area targets beyond the required statewide targets, FHWA expects that 
State DOT to meet the coordination and reporting requirements under 
sections 490.105(e)(2) and 490.107(b). Although urban or non-urbanized 
area targets are not subject to significant determination under section 
490.109, FHWA feels that the coordination and reporting requirements 
are necessary because once those targets are reported to FHWA (and 
become available to the public), the transparency and accountability of 
those targets will be expected by the public. For these reasons, FHWA 
retains the language in sections 490.105(e)(3)(i), (e)(3)(ii), and 
(e)(3)(iv) so that State DOTs have the maximum flexibility in 
monitoring condition/performance by different geographic areas and 
establishing targets beyond the required statewide targets, while 
preserving State DOT discretion to establish those targets. However, 
FHWA revised the language in section 490.105(e)(3)(iii) by striking the 
phrase ``available to FHWA'' in the paragraph because the urbanized 
area data reporting requirement is already covered in section 
490.103(b).
Discussion of Section 490.105(e)(4) Performance Period Length and 
Schedule Alignment
    The FHWA proposed a definitive performance period while recognizing 
that planning cycles and time-horizons for long-term performance 
expectations differ among State DOTs and MPOs. The FHWA understands 
that, although differences exist, it is necessary to provide for 
consistency in performance periods and proposed a 4-year performance 
period considering: (1) Providing for a link between the interim short-
term targets (i.e., 2-year and 4-year time horizons) to individual 
State DOT's long-term performance expectations as part of a 
performance-based planning and programming process; (2) ensuring the 
time horizon is long enough to allow for condition/performance change 
to occur through the delivery of programmed projects; (3) aligning the 
schedule of reporting on targets and the evaluation of progress toward 
achieving the targets with the biennial performance reporting 
requirements under 23 U.S.C. 150(e); and (4) reporting targets using a 
consistent performance period as part of the evaluation of State DOT 
effectiveness in the performance-based planning process provided to the 
Congress, as required by 23 U.S.C. 135(h). Therefore, 2-year targets 
represent the anticipated or intended condition/performance level at 
the midpoint of each performance period, and 4-year targets represent 
the anticipated or intended condition/performance level at the end of 
each performance period. As stated in the NPRM, it is important to 
emphasize that established targets (2-year targets and 4-year targets) 
should be considered as interim conditions/performance levels that lead 
toward the accomplishment of longer term performance expectations in a 
State DOT's long-range statewide transportation plan \27\ and NHS asset 
management plans.\28\
---------------------------------------------------------------------------

    \27\ 23 U.S.C. 135(f).
    \28\ 23 U.S.C. 119(e).
---------------------------------------------------------------------------

    Two main issues on the proposed 4-year performance period were 
raised by the commenters: (1) The 4-year performance period duration is 
too short for noticeable changes in the condition of bridges and 
pavements and for demonstrating the impact of the investments \29\ and 
(2) the timeline of the performance periods does not align with 
planning cycle of State DOTs and MPOs.\30\
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    \29\ AASHTO; Transportation for America; the Southeast Pavement 
Preservation Partnership; the State DOTs of California, Connecticut, 
Idaho, Iowa, Minnesota, Montana, New Jersey, New York State, North 
Dakota, South Dakota, Texas, and Wyoming; Rural Counties Task Force; 
the Organ County Transportation Authority; the Oversight Committee 
for California local Streets and Road Needs Assessment; TEMPO; the 
Metropolitan Transportation Commission, the Southern California 
Association of Governments; Nashville Area MPO.
    \30\ State DOTs of Connecticut, New York, and Texas, the 
National Association of Regional Councils, the New York State 
Association of Metropolitan Planning Organizations, the New York 
Metropolitan Transportation Council, the Association of Metropolitan 
Planning Organizations, Atlanta Regional Commission, the Association 
of Texas Metropolitan Planning Organizations, and the Community 
Planning Association of Southwestern Idaho.
---------------------------------------------------------------------------

    The ASCE commented that the proposed regimen of performance period 
and progress reporting ``is in accordance with the intent of MAP-21 and 
will help document the strides that States are making to improve asset 
conditions.'' They also recommended that FHWA pay particularly close 
attention to the investment strategies section of progress reviews to 
help ensure that States are prioritizing investment decisions in a way 
that will help them reach their intended targets in accordance with 
national goals. Nicholas Cazares \31\ commented that the proposed 
approach of performance period is ``reasonable.'' The Center for 
American Progress commented that a 4-year performance period is of 
adequate length to allow States to ``make or fail to make progress.''
---------------------------------------------------------------------------

    \31\ Docket Letter FHWA-2013-0053-0078.
---------------------------------------------------------------------------

    However, AASHTO and the California, Connecticut, and Texas DOTs 
commented that the condition of bridges and pavements does not change a 
great deal in relatively short time periods (i.e., 2-year and 4-year). 
Additionally, the AASHTO and the Texas DOT provided an example of ``a 
bridge built with a design life of 75 years does not normally show a 
great amount of change from one inspection cycle to the next (every 2 
years).''
    The AASHTO, Metropolitan Transportation Commission, Nashville Area 
MPO, Orange County Transportation Authority, Oversight Committee for 
the California Local Streets and Road Needs Assessment, Rural Counties 
Task Force, SCAG, and TEMPO and the State DOTs of California, Colorado, 
Connecticut, Iowa, New Jersey, and Texas commented that ``planning, 
programming, project delivery, data collection, data reporting of 
projects'' typically takes much longer than 4 years, so the impact of 
infrastructure investment programs on condition/performance would be 
difficult to demonstrate with short-term targets (2-year and 4-year 
targets). The AASHTO and Connecticut and New York DOTs recommended 
providing State DOTs and MPOs the flexibility to voluntarily establish 
long-term targets (10 years or more) outside of the regulatory 
framework and recommended report progress on a 4- or 5-year interval. 
The Metropolitan Transportation Commission, Nashville Area MPO, Orange 
County Transportation Authority, the Oversight Committee for the 
California Local Streets and Roads Needs Assessment, and the Rural 
Counties Task Force recommended target establishment cycles between 5 
and 10 years. The SCAG and TEMPO recommended that performance periods 
should be at least 10 years. The California and Texas DOTs recommended 
a 10-year performance period with a 5-year mid performance period 
progress report. The New York DOT also suggested a 5-year

[[Page 5908]]

reporting cycle. The North Carolina DOT suggested 6- to 8-year goals 
for the bridges. The State DOTs of Idaho, Montana, New York, North 
Dakota, South Dakota, and Wyoming recommended a longer reporting cycle. 
Transportation for America recommended the reporting period be 8 or 10 
years.
    The letters from AMPO, COMPASS, Iowa DOT, Nashville Area MPO, 
SEMCOG, TEMPO, and Transportation for America suggested that the 
performance period should coincide with State DOT and MPO Long Range 
Plan (LRP) cycles. Transportation for America stated that not aligning 
the performance period with the LRP cycle ``creates a disincentive for 
these important entities to engage in the performance measure targeting 
and investment process or place an undue burden for these entities to 
conduct planning and target setting outside the planning process.'' The 
AMPO and COMPASS added that the misalignment of performance periods may 
cause confusion when discussing baseline conditions and targets within 
the LRP.
    The Iowa DOT indicated that due to their 5-year planning and 
program development cycle, much of the investment planned for the time 
period of 2016 through 2020 will already be set by the time these rules 
go into effect. They added that they have limited ability to make 
changes, and it may take some time for them to redirect investment, if 
the national measures indicate different investment prioritization. 
Similarly, North Carolina DOT indicated that the 2 and 4 year periods 
will result in their State setting targets based on work that is 
already planned rather than targets that represent desired long-term 
system improvement.
    The TEMPO did not support the 4-year frequency proposal and argued 
that MAP-21 does not specify target dates, ranges, or frequencies. They 
added that State DOTs and MPOs should be allowed to fulfill the 
continuing, cooperative, and comprehensive process as it relates to the 
establishment of feasible performance targets and their use in planning 
activities and documents. They also made a comment that State DOTs and 
MPOs should establish appropriate targets and meet the statutorily 
required biennial progress report for each target. Lastly, they 
rejected any specific target year or target setting frequency proposed 
by other entities under this and all other related rulemakings.
    Finally, the Minnesota DOT indicated that the proposed framework 
requiring 4-year performance periods with both 2-year targets and 4-
year targets may be overly complex.
    The FHWA is aware that pavement and bridges deteriorate slowly and 
agrees with the comments from AASHTO and the State DOTs of California, 
Connecticut, and Texas. However, it is important to recognize the 
difference between condition changes for individual pavement sections 
or individual bridges over time versus condition changes of system 
network or system deck areas over time. To confirm this difference, 
FHWA examined both pavement and bridge condition trends using the 
proposed condition measures and found noticeable changes over 2-year 
and 4-year time periods.\32\ This is also evident in the letter 
submitted by Oregon DOT \33\ for their bridge condition trends using 
the proposed bridge measures. This analysis provided sufficient 
evidence for FHWA to believe that the magnitude of percentage of system 
changes in Good and Poor condition for bridges is noticeable.
---------------------------------------------------------------------------

    \32\ FHWA (2015) analysis results have been included in the 
Docket with the filename ``NHS Bridge Condition Changes 2015 09 
29.''
    \33\ NPRM Comment FHWA-2013-0053-0161: https://www.regulations.gov/document?D=FHWA-2013-0053-0161.
---------------------------------------------------------------------------

    As stated in the NPRM, established targets (2-year target and 4-
year target) would need to be considered as interim conditions/
performance levels that lead toward the accomplishment of longer term 
performance expectations in State DOT long-range statewide 
transportation plans \34\ and NHS asset management plans.\35\ In order 
to avoid confusion, FHWA used the term ``longer-term performance 
expectations'' in the NPRM to distinguish between longer term targets 
and the interim anticipated condition/performance (i.e., 2-year and 4-
year targets) toward those longer-term performance expectations. The 
FHWA recognizes the importance of considering a longer time horizon for 
planning and programming projects that considers and evaluates temporal 
tradeoffs between feasible improvements for more efficient and 
effective investment decisions. The FHWA strongly recommends that State 
DOTs and MPOs consider longer time horizons, which look beyond 4 years 
(i.e., multiple performance periods), for planning and programming of 
projects so identification and selection of those projects is guided by 
the longer term performance expectations. As indicated above, the 
purpose of the performance period is simply to measure and evaluate 
condition/performance, which should not be assumed to be a ``planning, 
programming, project delivery, data collection, data reporting'' cycle 
of individual improvement projects or a program of projects. Thus, the 
performance period and LRP cycles look at different periods of time and 
do not have to be aligned to be effective. For these reasons, FHWA 
believes that the performance period does not need to be aligned with 
the current LRP cycles of State DOTs and MPOs. Therefore, FHWA retains 
the intent of the proposed language in sections 490.105(e)(4) and 
(e)(5) in the final rule. In sections 490.105(e)(4)(iii) and 
(e)(4)(iv), FHWA added the phrase ``for the measures in paragraphs 
(c)(1) through (c)(3) of this section'' to codify the specific measures 
being discussed. This addition does not change the intent of the 
paragraph.
---------------------------------------------------------------------------

    \34\ 23 U.S.C. 135(f).
    \35\ 23 U.S.C. 119(e).
---------------------------------------------------------------------------

Discussion of Section 490.105(e)(5) State DOT Reporting
    Because there were no substantive comments on section 
490.105(e)(5), FHWA made no changes.
Discussion of Section 490.105(e)(6) Target Adjustment
    The FHWA proposed that State DOTs may adjust their established 4-
year targets when they submit their Mid Performance Period Progress 
Report (described in section 490.107(b)(2)). This language recognizes 
that State DOTs would need to consider many factors in establishing 
targets that could impact progress, such as uncertainties in funding, 
changing priorities, and external factors outside the control of State 
DOTs. This target adjustment allowance is limited to the Mid 
Performance Period Progress Report, and is not allowed at any other 
time during the performance period. In the NPRM, FHWA expressed that 
this frequency of adjustment allows a State DOT to address changes they 
could not have foreseen in the initial establishment of 4-year targets 
while still maintaining a sufficient level of control in the 
administrative procedure necessary to carry out program requirements in 
an equitable manner. The MPOs impacted by a State DOT's adjustment of 
targets have the option to adjust their target by either: (1) Agreeing 
to plan and program projects so that they contribute toward the 
adjusted State DOT target for that performance measure or (2) 
committing to a new quantifiable target for that performance measure 
for its metropolitan planning area when a State DOT adjusts their 
target, as described in section 490.105(f)(7). The Metropolitan 
Transportation Commission expressed

[[Page 5909]]

their support for the proposed approach and stated that the 
``flexibility of revising targets in mid-stream will improve the 
ability of State DOTs and MPOs to more accurately predict future 
performance achievement.'' The Illinois DOT expressed their desire for 
FHWA to retain the language in section 490.105(e)(6). However, the 
Center for American Progress and Transportation for America opposed the 
proposed language by stating that the proposed rule provides State DOTs 
with too much flexibility when establishing performance management 
targets and recommended that the rule should not allow State DOTs to 
adjust targets. Transportation for America stated that section 
490.105(e)(6) is ``directly against the intent of Congress for the 
nation's performance management program to increase accountability and 
transparency of the Federal-aid highway program and improve project 
decision making through performance-based planning and programming.'' 
They added that section 490.105(e)(6) ``provides State DOTs blanket 
approval to amend their self-established targets after just 2 years 
without any criteria'' and amending self-established targets is 
``unnecessary and contradictory to congressional intent.''
    The AASHTO and the State DOTs of Connecticut, Missouri, Oklahoma, 
and Oregon recommended that State DOTs should be allowed to adjust 
targets annually. The South Dakota DOT stated that MAP-21 clearly 
provides that individual State DOTs establish their own targets. 
However, they believe that the proposed rule suggests that FHWA can 
restrict State DOTs' authority to establish targets, notably as to when 
targets can be revised. They added that FHWA ``must fully respect a 
State's authority to set and revise targets.''
    The FHWA disagrees with the comment made by Transportation for 
America that its approach is ``unnecessary and contradictory to 
congressional intent'' and may reduce accountability and transparency 
of the Federal-aid highway program. As stated previously, the language 
in section 490.105(e)(6) is a result of FHWA's recognition that State 
DOTs have to consider many factors in establishing targets that could 
impact progress such as uncertainties in funding, changing priorities, 
and external factors outside the control of State DOTs.
    Although the flexibility of adjusting target is granted, FHWA does 
not believe this approach reduces the accountability associated with 
targets and transparency in adjusting targets. First, as stated 
previously, the target adjustment allowance is limited to the Mid 
Performance Period Progress Report and not allowed at any other time 
during the performance period.
    Second, the 4-year target adjustment through the Mid Performance 
Period Progress Report will provide a more consistent method for 
significant progress determinations under section 490.109. The FHWA 
felt it is necessary to provide State DOTs the same opportunity to make 
significant progress for 4-year targets as for the 2-year targets. As 
shown in Figure 2 below, both 2-year and 4-year targets for the first 
performance period are reported to FHWA by October 1, 2018. Those 2-
year targets will be subjected to a significant progress determination 
under section 490.109 after the Mid Performance Period Progress Report 
is submitted on October 1, 2020. Therefore, for the 2-year targets, the 
duration between target reporting and significant progress 
determinations is about 2 years. However, for 4-year targets, the 
duration between target reporting and significant progress 
determination is about 4 years because the targets are reported on 
October 1, 2018, and the significant progress determination will be 
made after the Full Performance Period Progress Report is submitted on 
October 1, 2022. Allowing the adjustment of the 4-year target in the 
Mid Performance Period Progress Report provides the opportunity to make 
the duration between target reporting and significant progress 
determination about 2 years, which is consistent with 2-year targets.
    Third, this rule includes section 490.107(b)(2)(ii)(E) which 
requires State DOTs to include in their Mid Performance Period Progress 
Report a discussion on the basis for the adjustment and how the 
adjusted target supports expectations documented in longer range plans 
(e.g., the State asset management plan and the long-range statewide 
transportation plan).
    Finally, a State DOT's discussion on targets and adjustment will be 
available on a public Web site to ensure transparency and 
accountability in the process.

[[Page 5910]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.016

    The MAP-21 gives FHWA the discretion to establish requirements for 
targets such that any targets a State DOT establishes will achieve the 
overall requirements of the program. The FHWA believes State DOTs have 
the authority and flexibility to establish targets for the performance 
measures. However, contrary to South Dakota DOT's comment, FHWA does 
not believe MAP-21 provides State DOTs the authority to adjust or 
revise targets at their discretion. Instead, FHWA believes that the 
statute provides FHWA the authority to establish requirements for 
targets. The FHWA feels that some requirements must be established so 
that accountability and transparency are instilled in the performance 
management process. The FHWA also believes that these requirements for 
targets are consistent with six \36\ of the

[[Page 5911]]

nine principles listed in the NPRM preamble that were considered in the 
development of the proposed regulation.
---------------------------------------------------------------------------

    \36\ Six of the Nine principles used in the development of 
proposed regulations for target establishment criteria: 
www.regulatons.gov, Docket FHWA-2013-0053:
     Ensure for Consistency--provide a sufficient level of 
consistency, nationally, in the establishment of measures, the 
process to set targets and report expectations, and the approach to 
assess progress so that transportation performance can be presented 
in a credible manner at a national level.
     Increase Accountability and Transparency--consider an 
approach that will provide the public and decision makers a better 
understanding of Federal transportation investment needs and return 
on investments.
     Consider Risk--recognize that risks in the target 
establishment process are inherent, and that performance can be 
impacted by many factors outside the control of the entity required 
to establish the targets.
     Understand that Priorities Differ--recognize that State 
DOTs and MPOs must establish targets across a wide range of 
performance areas, and that they will need to make performance 
trade-offs to establish priorities, which can be influenced by local 
and regional needs.
     Recognize Fiscal Constraints--provide for an approach 
that encourages the optimal investment of Federal funds to maximize 
performance but recognize that, when operating with scarce 
resources, performance cannot always be improved.
     Provide for Flexibility--recognize that the MAP-21 
requirements are the first steps that will transform the Federal-aid 
highway program to a performance-based program and that State DOTs, 
MPOs, and other stakeholders will be learning a great deal as 
implementation occurs.
---------------------------------------------------------------------------

    The biennial reporting cycle, as shown in Figure 2 above, has the 
appearance of only allowing State DOTs to incorporate uncertainties 2 
years in advance. However, as shown in Figure 2 above, the actual 
duration (i.e., from Mid Performance Period Progress Report due date, 
October 1, to the end of the performance period) State DOTs have to 
incorporate uncertainties is shorter than 2 years. For example, as 
shown in Figure 2, the 4-year target established in 2018 (the first 
State Biennial Performance Report) may be adjusted in 2020 (the second 
State Biennial Performance Report due on October 1, 2020). Note that 
the 4-year target for the first performance period is the anticipated 
condition/performance level at the end of each performance period 
(December 31, 2021). As discussed in section 490.105(e)(4), 4-year 
targets would reflect the programmed improvement projects anticipated 
to be delivered, and their condition/performance to be measured, by the 
end of that performance period. Therefore, FHWA believes that target 
adjustment, in October 2020 for the anticipated condition/performance 
as of December 2021, provides State DOTs a sufficient level of control 
in the administrative procedure necessary to carry out these program 
requirements in a reasonable manner. Note that duration from October 
2020 to December 2021 is 15 months, not 2 years.
    Annual target adjustment, as suggested by AASHTO and others, would 
be adjusting the 4-year target (the anticipated condition/performance 
as of December 2021) during calendar year 2021. The FHWA believes the 
transparency of target and the target establishment process will be 
compromised if targets are allowed to be adjusted close to the end of 
the assessment period. Therefore, FHWA retains the language in section 
490.105(e)(6) that allows State DOTs to only adjust their established 
4-year targets when they submit their Mid Performance Period Progress 
Report.
    In the NPRM, FHWA proposed that, if an MPO had originally agreed to 
accept the State DOT's targets and the State DOT adjusts them, the MPO 
would need to revisit its targets. Several MPOs and MPO associations, 
including NARC and TEMPO, argued that the final rule should explicitly 
state that when a State DOT chooses to adjust targets, an MPO is not 
required to also adjust its own established targets. The commenters 
suggested that a State DOT should be required to coordinate with the 
MPO if the State DOT adjusts its targets, just as State DOTs are 
required to do when establishing initial targets. The TEMPO recommended 
that any target adjustments proposed by a State DOT that directly 
impact an MPO's planning area should be made jointly with the MPO. The 
FHWA agrees with these comments to implement the target selection 
coordination requirements under 23 U.S.C. 135(d)(2)(B)(i)(II). 
Therefore, FHWA added language in section 490.105(e)(6) that if a State 
DOT decides to adjust their 4-year targets then it must coordinate with 
relevant MPOs.
Discussion of Section 490.105(e)(7) Phase-in Requirements for 
Interstate Pavement Measure
    In the NPRM, FHWA recognized that some State DOTs may not be able 
to meet all data requirements in section 490.309(b)(1) prior to the 
start of the first proposed performance period for the Interstate 
System pavement condition measure. As a result, FHWA proposed the 
following for the measures in section 490.307(a)(1) and (a)(2) in the 
NPRM:
     State DOTs establish their 4-year targets and report these 
targets in their Baseline Performance Period Report, required under 
section 490.107(b)(1);
     State DOTs are not required to report 2-year targets and 
baseline condition/performance in their Baseline Performance Period 
Report; and
     State DOTs update the baseline condition/performance in 
their Baseline Performance Period Report, with the 2-year condition/
performance in their Mid Performance Period Progress Report, described 
in section 490.107(b)(2)(ii)(A). Also, State DOTs may adjust their 4-
year targets, as appropriate.
    The State DOTs of Maine, New Hampshire, and Vermont commented that 
the phase-in process for the Interstate pavement condition proposed in 
the NPRM only relieves State DOTs from reporting baseline condition and 
2-year targets, but ignores all other new requirements. They commented 
that establishing both 2 and 4-year targets will require the same 
baseline data. They questioned whether relieving only the 2-year target 
was an oversight in the NPRM, and if FHWA should also delay the 
establishment of 4-year targets. They requested additional 
clarification and guidance on how to establish 4-year targets in the 
absence of baseline condition data. The New Jersey DOT made a similar 
comment stating that it is impractical to establish and report 4-year 
targets in the absence of baseline condition information and requested 
clarification of the requirement to report 4-year targets when a 
baseline condition/performance reporting is not required. Texas DOT 
stated that establishing the targets will be challenging since some 
State DOTs may not have historical information for some of the metrics 
in this rule and requested guidance on how these measures could be 
phased in along with new metrics.
    During the development of the NPRM, FHWA considered numerous ways 
for State DOTs to meet the target and progress reporting requirements 
under the 23 U.S.C. 150(d)(1) and 150(e), which require State DOTs to 
establish the first set of performance targets one year after the 
effective date of the final rule and to report those targets not later 
than October 1, 2016.\37\ The FHWA felt at the time of the development 
of the NPRM that some State DOTs may not be able to meet the new data 
reporting requirements for Interstate pavement condition, as provided 
in section 490.309(b)(1), until after the start of the first proposed 
performance period. The FHWA had to consider how State DOTs could meet 
the statutory requirements. The FHWA also realized that those State 
DOTs would encounter difficulties in establishing 4-year targets 
without sufficient data or the baseline condition/performance for 
Interstate pavement condition measure for the first performance period. 
Therefore, FHWA allowed State DOTs to estimate their initial 4-year 
target. This would be done with the understanding that State DOTs would 
not have baseline condition when the target was first established and 
State DOTs would be provided an opportunity to adjust their estimated 
4-year target through Mid Performance Period Progress Report 2 years 
later. Their actual 2-year condition in the Mid Performance Period 
Progress Report would become the baseline condition for the first 
performance period.
---------------------------------------------------------------------------

    \37\ ``4 years after the date of enactment of the MAP-21'' 
stipulated in 23 U.S.C. 150(e).
---------------------------------------------------------------------------

    The FHWA has considered the comments and examined State DOTs' 
ability to implement the data requirements in section 490.309(b)(1) for 
the Interstate pavement measures with respect to the updated 
implementation timeline in Figure 2 above. As provided in section 
490.309(a), the first data collection cycle

[[Page 5912]]

(1-year cycle) will be in calendar year 2018. Therefore, assuming this 
final rule is effective in calendar year 2016, some State DOTs will not 
have the baseline conditions for Interstate pavement measures at the 
time of target reporting in Baseline Performance Period Report in 
calendar year 2018. The FHWA understands that it will be difficult to 
estimate targets without the baseline condition data for some State 
DOTs. However, State DOT target establishment ``not later than 1 year 
of the effective date of this rule'' in section 490.105(e)(1) is a 
statutory requirement under 23 U.S.C. 150(d). Therefore, to meet the 
statutory mandate, FHWA cannot delay the due date of State DOT target 
establishment. Therefore, as stated above, FHWA has allowed State DOTs 
to estimate their initial 4-year target. This would be done with the 
understanding that State DOTs would not have baseline condition when 
the target is first established and State DOTs would be provided an 
opportunity to adjust their estimated 4-year target through Mid 
Performance Period Progress Report 2 years later. Their actual 2-year 
condition in the Mid Performance Period Progress Report would become 
the baseline condition for the first performance period. Therefore, 
FHWA retains the phase-in requirements for Interstate pavement measure 
in section 490.105(e)(7) as proposed in the NPRM.
Discussion of Section 490.105(f) MPO Targets
    Section 490.105(f) describes MPO requirements for the establishment 
of targets for all measures identified in section 490.105(c). The MPOs 
are required to implement the 23 U.S.C. 134(h)(2)(B) target 
establishment provisions in a manner that provides for a level of 
consistency necessary to evaluate and report progress at both the 
national and MPO level.
Discussion of Section 490.105(f)(1) MPO Target Schedule
    To meet the statutory requirements in 23 U.S.C. 134(h)(2)(C), 
section 490.105(f)(1) requires each MPO to establish 4-year targets no 
later than 180 days after the relevant State DOT establishes its 
targets.
    As discussed in the combined discussion for sections 490.105(e)(1) 
and 490.105(f)(1), FHWA recognizes that the level of effort and 
required coordination for selecting performance targets is substantial 
and takes time. However, to meet the statutory requirements in 23 
U.S.C. 134(h)(2)(C), FHWA retains the language in section 
490.105(f)(1).
    In the NPRM, FHWA attempted to develop these target establishment 
requirements so that they could be met by all MPOs. Recognizing that 
MPOs vary in size, capability, resource availability, and ability to 
establish performance targets, FHWA proposed that they only be required 
to establish 4-year targets and have target establishment options, as 
provided in section 490.105(f)(4) of the NPRM (section 490.105(f)(3) of 
the final rule). The FHWA proposed MPO target establishment options: 
(1) Agreeing to plan and program projects so that they contribute 
toward the accomplishment of the relevant State DOT targets or (2) 
committing to quantifiable targets for their metropolitan planning 
area.
    The NARC expressed their appreciation for FHWA's recognition of the 
burden an MPO faces in establishing targets and not requiring them to 
establish 2-year targets. However, Transportation for America stated 
that this rule lacks consistency as State DOTs are required to 
establish both a 2- year and 4-year targets while MPOs are only 
required to establish 4-year targets. The FHWA considered these 
comments and determined that because MPOs vary in capability, 
resources, and their ability to establish performance targets it is 
important that the measures be structured in a way that allows all MPOs 
to meet the requirements in this rule. The FHWA retains the proposed 
language in NPRM section 490.105(f)(1)(i), in the final rule.
    Section 490.105(f)(1)(ii) is reserved.
    The FHWA retains the language of section 490.105(f)(2), as proposed 
in the NPRM. (See discussion for section 490.105(e)(2).)
    The FHWA deleted the language in section 490.105(f)(3) of the NPRM 
because this paragraph is redundant with what is already in section 
490.105(f)(1). Subsequent paragraphs in section 490.105(f) were 
renumbered in the final rule.
Discussion of Section 490.105(f)(3) and (4) MPO Target Establishment 
Option and MPOs Serving a Multistate Metropolitan Planning Area
    In the NPRM, FHWA proposed MPO target establishment options that 
would provide for a level of consistency necessary to evaluate and 
report progress at an MPO level, while providing for a degree of 
flexibility to support metropolitan planning needs. The FHWA also 
attempted to develop these target establishment requirements so that 
they could be met by all MPOs, recognizing that MPOs vary in 
capability, resource availability, and ability to establish performance 
targets. Therefore, FHWA proposed in section 490.105(f)(4) that MPOs 
would establish targets specific to the metropolitan planning area by 
either: (1) Agreeing to plan and program projects so that they 
contribute toward the accomplishment of the relevant State DOT targets, 
or (2) committing to quantifiable targets for their metropolitan 
planning area. The proposed language gave MPOs two options to establish 
targets. The MPOs could establish their own quantifiable targets. 
Alternatively, recognizing that the resource level and capability of 
some MPOs to reliably predict performance outcomes varies across the 
country, FHWA proposed an approach that would allow MPOs that did not 
want to establish their own quantifiable target to establish targets by 
supporting State DOT targets for performance. The FHWA also stated in 
the NPRM that regardless of which option MPOs choose to establish 
targets, MPOs may need to work with relevant State DOTs to coordinate, 
plan, and program projects for their planning area.
    The NARC expressed their appreciation for the flexibility provided 
in section 490.105(f)(4) of the NPRM (section 490.105(f)(3) in the 
final rule), which gives an MPO target establishment options. Moreover, 
they supported flexibility that emphasizes local transportation 
priorities in establishing targets and allows MPOs to establish targets 
that represent a decline in pavement or bridge conditions, if dictated 
by local priorities. The Connecticut DOT, Mid America Regional Council, 
and NYSAMPO expressed their support for the proposed MPO target 
establishment options. However, the Center for American Progress 
opposed the options, stating that MPOs should be required to establish 
quantitative performance targets.
    The Northeast Ohio Areawide Coordinating Agency stated that if 
State funds are distributed with a focus on improving capacity, MPOs 
should have the freedom to establish regional targets that are 
realistic to the level of funding an MPO receives for maintenance 
separate from the State DOT goals. The Iowa DOT suggested FHWA should 
consider a waiver process by which the performance monitoring 
requirements for MPOs in those States where State DOTs hold sole 
programming authority over the State's NHPP funding allocation. This 
would effectively eliminate the MPOs' ability to impact the NHPP. The 
Connecticut DOT commented that many of the smaller MPOs do not 
currently have the resources to collect and analyze this data so this 
is likely to put additional

[[Page 5913]]

burdens on State DOTs. They advocated that any MPO electing to 
establish their own targets should be required to collect and analyze 
whatever data is needed to support their plan, if that data is not 
already available from State DOT or other entities. Because FHWA 
believes that MPOs vary in size, capability, resources, and ability to 
establish performance targets, FHWA disagrees with the Center for 
American Progress's comment to require that MPOs only be allowed to 
establish quantifiable targets. The FHWA believes that performance 
management practices will continuously improve as State DOTs and MPOs 
implement the requirements under this rule. The FHWA anticipates that 
more MPOs will be able to establish their own quantitative targets in 
the future as the performance management practices mature.
    In response to the comments from Northeast Ohio Areawide 
Coordinating Agency and Iowa DOT, FHWA emphasizes that regardless of 
who controls funds or programming authority, coordination in target 
selection is required under 23 U.S.C. 135(d)(2)(B)(i)(II) and 23 U.S.C. 
134(h)(2)(B)(i)(II). (See the discussion section for sections 
490.105(e)(2) and 490.105(f)(2) for more details on target selection 
coordination requirements.)
    In response to Connecticut DOT's comment, FHWA notes that the 
pavement condition measures in subpart C are applicable to the mainline 
highways on the Interstate System and on the non-Interstate NHS. The 
bridge condition measures in subpart D are applicable to bridges 
carrying the NHS, which includes on- and off-ramps connected to the 
NHS. This is consistent with the statutory provisions in 23 U.S.C. 
150(c)(3). Therefore, the applicable network for State DOTs and MPOs 
within that State are not mutually exclusive. The data collection and 
analysis must be done by State DOTs and MPOs in a coordinated manner, 
as required in 23 CFR 450.208.
    The FHWA considered the comments on MPO target establishment 
options and retains in the final rule the proposed options with minor 
revision in section 490.105(f)(4) of the NPRM (section 490.105(f)(3)). 
The revision is to clarify that an MPO can exercise different target 
establishment options for each measure in subparts C and D, and that 
they do not have to select the same option for all measures in subparts 
C and D. The FHWA amended section 490.105(f)(4) so that MPOs shall 
establish a target by either: (1) Agreeing to plan and program projects 
so that they contribute toward the accomplishment of the relevant State 
DOT target for that performance measure, or (2) committing to a 
quantifiable target for that performance measure for their metropolitan 
planning area.
    The New Jersey DOT commented that multi-state MPOs should have the 
discretion to establish different targets for each State. In response 
to the comment, FHWA added section 490.105(f)(4) to address situations 
where metropolitan planning areas extend across multiple States. As 
discussed in section 490.105(f)(3), MPOs have an option for 
establishing a target by either: (1) Agreeing to plan and program 
projects so that they contribute toward the accomplishment of the 
relevant State DOT targets, or (2) committing to quantifiable targets 
for their metropolitan planning area. The added language in section 
490.105(f)(4)(i) provides MPOs the option to choose different target 
establishment options, as specified in section 490.105(f)(3), for the 
portion of the metropolitan area within each State. For example, if a 
metropolitan planning area of an MPO is located within two States 
(e.g., ``State A'' and ``State B''), that MPO could establish their 
target for a measure by: (1) Agreeing to plan and program projects so 
that they contribute toward the accomplishment of the State A target 
for the portion of metropolitan planning area within State A; and (2) 
committing to quantifiable target for the portion of their metropolitan 
planning area within State B. The language in section 490.105(f)(4)(ii) 
clarifies that if an MPO chooses the option to ``agree to plan and 
program projects to contribute toward State targets'' for the entire 
metropolitan planning area, then they must plan and program projects in 
support of the individual State DOT targets as applicable to the 
portion of the metropolitan area within each State.
    Although MPOs could exercise their target establishment options 
provided in section 490.105(f)(3) and (4), FHWA emphasizes that all 
MPOs are required to coordinate with relevant State DOTs in MPO target 
establishment regardless of which options MPOs choose in target 
establishment.
    Sections 490.105(f)(5) and 490.105(f)(6) are reserved.
Discussion of Section 490.105(f)(7) MPO Response to State DOT Target 
Adjustment
    The FHWA proposed MPO response options to State DOT target 
adjustment, described in section 490.105(e)(6), through the State DOT's 
Mid Performance Period Progress Report. This MPO response option was 
only for those MPOs who established their targets by agreeing to plan a 
program of projects so that they contribute to the adjusted State DOT 
target for a performance measure, as provided in section 
490.105(f)(4)(i) of the NPRM (section 490.105(f)(3)(i) of the final 
rule). Those MPOs responding to State DOT target adjustment have the 
following options: (1) Agreeing to plan and program projects so that 
they contribute toward the accomplishment of the relevant State DOT 
targets, or (2) committing to quantifiable targets for their 
metropolitan planning area.
    The NARC made a comment that the rule should explicitly state that 
when a State DOT chooses to adjust its targets, an MPO is not required 
to also adjust its own established targets. The FHWA believes that the 
language in this rule does not require MPOs to adjust their own 
quantifiable target when State DOTs adjusts their targets. The FHWA 
feels that it is not necessary to explicitly state this in the final 
rule. The FHWA retains the proposed MPO response options with minor 
revisions in section 490.105(f)(7). The revision is to clarify that 
MPOs can exercise different target establishment options for each 
measure in subparts C and D, and that they do not have to select the 
same option for all measures in subparts C and D. The FHWA amended 
section 490.105(f)(7) to read that MPOs shall respond to State DOT 
target adjustment by either: (1) Agreeing to plan and program projects 
so that they contribute toward the accomplishment of the relevant State 
DOT target for that performance measure, or (2) committing to a 
quantifiable target for that performance measure for their metropolitan 
planning area. Although MPOs could exercise their target selection 
options provided in section 490.105(f)(7), FHWA emphasizes all MPOs are 
required to coordinate with relevant State DOTs in target selection, as 
required in section 490.105(f)(3), regardless of which option MPOs 
choose in target selection.
Discussion of Section 490.105(f)(8) MPO Target Adjustment
    The Texas DOT commented that ``if the proposed rules are adopted as 
drafted, Texas State DOT will need to work with TEMPO and their MPOs 
and transit providers to amend all existing Metropolitan Planning 
Agreements to include language regarding performance planning, 
measures, targets, etc.'' They added that this is going to become 
``even more important in light of the new OMB Super Circular and the 
potential need to make changes to the Metropolitan Planning Agreements 
based on new regulations in 2 CFR 200.'' The Texas

[[Page 5914]]

DOT commented that ``this requirement is a significant task, and State 
DOTs and MPOs should be given the greatest degree of latitude and 
flexibility in making these revisions on a schedule of their own 
choosing without penalty.''
    The NYMTC commented that this rule requires State DOTs and MPOs to 
document procedures for reporting, target setting, target adjustment, 
and related coordination in metropolitan planning agreements. The NYMTC 
commented that they object to the use of metropolitan planning 
agreements for this purpose. In lieu of the metropolitan planning 
agreements, they recommended maximum flexibility for State DOTs and 
MPOs in establishing the coordination that is appropriate to each State 
and region. They argued that MPOs and State DOTs should not have to 
revisit the metropolitan planning agreements each time they make an 
adjustment to targets or related data collection and performance 
reporting procedures.
    The comment from Texas DOT on metropolitan planning agreement 
requirements is beyond the scope of this rule. (See 23 CFR 450.314 for 
details on metropolitan planning agreement requirements.)
    Addressing NYMTC's comments, FHWA amended the language in section 
490.105(f)(8) to remove the requirement to document the target 
adjustment process in the metropolitan planning agreement. The manner 
in which targets will be adjusted is to be mutually agreed upon by 
State DOTs and MPOs. This change is consistent with numerous comments 
received on this rule and the Planning Rule. As noted in the discussion 
of section 490.107(c)(1) on MPO reporting, amending the metropolitan 
planning agreement as part of the performance management process is 
onerous and does not provide the flexibility needed. This change is 
also intended to emphasize the need for State DOTs and MPOs to 
coordinate when adjusting targets, just as they are to do when 
establishing targets. (See discussion section for section 490.107(c)(1) 
for more information.)
    No substantive comments were received for section 490.105(f)(9). 
The FHWA retains the language in section 490.105(f)(9) as proposed.
Discussion of Section 490.107 Reporting on Performance Targets
    Section 490.107 deals with the biennial performance reporting 
schedule and requirements. The Montana DOT commented that, with 
multiple rulemakings underway and more planned in the future, FHWA 
should coordinate the reporting deadlines for all of the rules that 
fall under this title. This will reduce the burden on States and allow 
reasonable process development timeframes.
    As outlined in section 490.107, FHWA notes that reporting 
timeframes will be coordinated to the maximum extent practicable.
    The New York DOT submitted a comment expressing their support for 
the provision that requires that only State DOTs report to FHWA on 
performance targets and progress in achieving established targets.
Discussion of Section 490.107(a)(1)-(2) General Reporting on 
Performance Targets
    The North Carolina DOT commented that the use of three different 
reports and the associated requirements is unduly complex. They suggest 
that since the data is being submitted to HPMS and NBIS, FHWA should 
extract and use the information to meet the reporting requirements.
    The FHWA clarifies that performance metric data is completely 
different from performance target, condition/performance, progress 
evaluation, etc. The FHWA felt it is necessary to differentiate the two 
in this rule because metric data refers to IRI, Cracking Percent, 
rutting, and faulting values for pavement sections reported to HPMS and 
NBI Data Items 58-Deck, 59-Superstructure, 60-Substructure, and 62-
Culverts). These reported metric data are not performance measures and 
they do not represent performance targets. Section 490.107 in this rule 
deals with reporting targets, condition/performance, progress 
evaluation, etc. and they are also required under 23 U.S.C. 150(e). For 
this reason, FHWA retains section 490.107(a)(1) and 490.107(a)(2) as 
proposed in the NPRM.
Discussion of Section 490.107(a)(3) Electronic Reporting Template
    The FHWA retains the language in section 490.107(a)(3) that states 
an electronic template, provided by FHWA, will be used for State DOT 
reporting. Comments from the AASHTO, Connecticut DOT, Iowa DOT, 
Missouri DOT, New York DOT, Oklahoma DOT, Oregon DOT, PSRC, Texas DOT, 
and Washington DOT expressed their support for an electronic template. 
They wanted State DOTs to be included in the development of the product 
and given time to review and comment on the requirements to ensure it 
is not an undue burden to report the data.
    The FHWA will invite the public to attend demonstrations of the 
reporting tool and plans to solicit comments on the reporting tool 
during this demonstration. The FHWA will consider comments received on 
the electronic reporting template.
    The New York State DOT commented that FHWA should minimize 
additional requirements by allowing States and MPOs to work within 
existing processes, to the extent possible, without imposing onerous 
reporting requirements or requiring significant adjustment to existing 
legal documentation. The FHWA notes that development of an electronic 
reporting template is intended to aid in streamlining the reporting 
process.
Discussion of Section 490.107(b)(1)(i) Baseline Performance Period 
Report Schedule
    The FHWA received comments on the proposal to require submission of 
the first Baseline Performance Period Report on October 1, 2016, in 
section 490.107(b)(1)(i). Comments from Washington DOT and Alaska 
DOT&PF noted that the proposed 2016 due date would not allow the time 
required by MAP-21 to establish targets. The Seattle DOT noted this as 
well, but asked that all deadlines be removed and State DOTs be allowed 
to conduct an extensive comment and revision process without a specific 
deadline.
    The statute established target establishment and reporting 
deadlines for State DOTs and MPOs. The FHWA cannot change statutory 
deadlines. Accordingly, because this rule is being issued and effective 
after October 1, 2016, FHWA issued guidance on the State DOT report due 
on October 2016 to advise State DOTs how to comply with the statutory 
deadline for the first performance reporting under 23 U.S.C. 150(e). 
Please see discussion section for sections 490.105(e)(1) & (f)(1) for 
more on the FHWA issued guidance. Considering the comments received on 
this section, and the requirements in sections 490.105(e)(1) and 
490.105(f)(1) (requiring establishment of State DOT targets within 1 
year of the effective date of each final rule and MPO targets to be 
established within 180 days of State targets), FHWA amended the 
implementation timeline in section 490.107(b)(1)(i). The FHWA amended 
the due date of the first Baseline Performance Period report from 
October 1, 2016, to October 1, 2018.
    With the revision to section 490.107(b)(1)(i), the first Baseline 
Performance Period Report is now due October 1, 2018, which is a delay 
of 2 years. Due to this change, the related performance period 
discussed in section 490.105(e)(4)(i) will also be delayed 2 years and 
begin on January 1, 2018. State DOTs and MPOs will still be

[[Page 5915]]

required to establish targets by the date specified in sections 
490.105(e)(1) and 490.105(f)(1). A timeline for Biennial Performance 
Reports is shown in Figure 1 in section 490.105(e)(1).
Discussion of Section 490.107(b)(1)(ii)(A) and (C) Baseline Performance 
Period Report Content
    The North Dakota DOT commented that the reporting requirements in 
section 490.107 were too detailed and that the use of the phrase ``to 
the maximum extent practicable'' opens the door to an unconstrained 
demand on State DOTs with possibilities of abuse. They added that 
documents such as the long-range statewide transportation plan are 
already required to document the measures, targets, and financial 
plans.
    The FHWA disagrees with the comment from the North Dakota DOT. The 
FHWA has identified the minimum reporting requirements in section 
490.107 needed to establish a performance management program that meets 
the intent and requirements of MAP-21, and allows for the discussion of 
performance management at a national level. The FHWA believes a set of 
minimum reporting requirements are necessary to provide a sufficient 
level of consistency in the report and the approach to assess progress, 
so that transportation performance can be presented in a credible 
manner at a national level. The FHWA also believes that the 
requirements in section 490.107 provide the public and decisionmakers a 
better understanding of Federal transportation investment needs and 
return on investments, thereby increasing accountability and 
transparency in the performance management process. The FHWA used the 
phrase ``to the maximum extent practicable'' in section 
490.107(b)(1)(ii)(A) and (C) where State DOTs are required to include 
discussions for the basis for each established target and their 
relationship with other performance expectations (in longer range 
plans, such as the State asset management plan or the long-range 
statewide transportation plan). The FHWA believes these descriptions 
are necessary for State DOT justifications to the public and 
decisionmakers on how their targets are derived. The FHWA reiterates 
that the statutory language in MAP-21 provides that State DOTs have the 
ability to establish their own targets but does not provide FHWA the 
authority to approve or reject State DOT established targets. The FHWA 
believes more detailed and defensible explanations will benefit the 
public, decisionmakers, and State DOTs. The FHWA retains the language 
in section 490.107(b)(1)(ii)(A) and (C) in the final rule.
Discussion of Section 490.107(b)(1)(ii)(C) and 490.107(b)(2)(ii)(C) 
Relationship With Other Performance Expectations in Baseline 
Performance Report and Investment Strategy Discussion in the Mid-Period 
Performance Report
    Sections 490.107(b)(1)(ii)(C) (Relationship with other performance 
expectations in Baseline Performance Report) and 490.107(b)(2)(ii)(C) 
(Investment strategy discussion in the Mid-Period Performance Report) 
outline the requirements to discuss the link between the performance 
management targets, other plans, and the effectiveness of the 
investment strategies documented in the State asset management plan. 
The AASHTO, Alaska DOT&PF, and Connecticut DOT commented that these 
requirements should be removed as they are ``duplicative and excessive 
reporting requirements,'' and open the ``door to an unconstrained 
demand on State DOTs for information and discussion.'' They also 
commented that the existing documents, such as the long-range Statewide 
transportation plan and STIP, have requirements to document measures, 
targets, financial plans, and how the projects support program goals. 
The North Carolina DOT commented that the mid-period discussion of the 
State asset management plan could be excessive. The North Carolina DOT 
asked if this discussion is to be a one-time occurrence or occur in 
each mid-period report.
    As discussed above for section 490.107(b)(1)(ii)(A) and (C), FHWA 
believes minimum reporting requirements are necessary to provide a 
sufficient level of consistency, in the expectations and approach, to 
assess progress so that transportation performance can be presented in 
a credible manner at a national level. The FHWA also believes that the 
requirements in section 490.107 provide the public and decisionmakers a 
better understanding of Federal transportation investment needs and 
return on investments, thereby increasing accountability and 
transparency in the performance management process. The FHWA does not 
agree that the items to be reported in the biennial performance reports 
are duplicative from the State asset management plan, long-range 
statewide transportation plan, STIP, or others. Although plans and 
reports support performance management implementation and the 
performance targets in section 490.105, the biennial performance 
reports under this rule are updates of performance information every 2 
years, but the long-range statewide transportation plan and STIP are 
required as part of planning process. Moreover, FHWA believes that it 
will be very difficult for the public and decisionmakers to obtain 
performance information by searching through various plans (e.g., State 
asset management plan, long-range statewide transportation plan, STIP, 
and others). The FHWA believes that the minimum reporting requirements 
under section 490.107 will facilitate public access to performance 
information in a consistent cycle for all State DOTs, thereby 
increasing accountability and transparency and helping to facilitate 
the presentation of transportation performance at a national level. 
Therefore, FHWA retains the language in sections 490.107(b)(1)(ii)(C) 
and 490.107(b)(2)(ii)(C), as proposed in the NPRM. The reporting 
requirements are focused on the impacts of performance management. 
Including this information within the reports from all State DOTs and 
on the same timeline will aid in the creation of a national performance 
story.
Discussion of Section 490.107(b)(1)(ii)(D) Urbanized Area Boundaries 
and Population Data for Targets
    The FHWA proposed in section 490.313(b)(1) that thresholds for IRI 
rating determination (Good, Fair, or Poor) would be different among the 
pavement sections located within and outside of the urbanized areas 
with a population greater than 1 million. In the case of urbanized area 
boundary changes during a performance period, FHWA proposed that State 
DOTs declare and describe the urbanized area in their Baseline 
Performance Period Report at the beginning of each performance period 
so that the IRI rating determinations could be done consistently 
throughout the performance period. The FHWA revised section 
490.107(b)(1)(ii)(D) to remove the term ``IRI rating determination'' 
because the thresholds for IRI rating determination are the same 
regardless of the location of pavement segments. (See sections 
490.103(b) and 490.313(b)(1) for further discussion.)
    For section 490.107(b)(1)(ii)(D), the Florida DOT requested 
clarification on the use of the term ``applicable urbanized areas'' in 
regards to the NPRM language that states: ``. . . State DOTs shall 
document the boundary extent for all applicable urbanized areas and the 
latest Decennial Census population data, based on information in 
HPMS.''

[[Page 5916]]

    Should a State DOT choose to establish additional urbanized 
targets, as outlined in section 490.105(e)(3), urbanized boundary 
information would need to be submitted. The term ``applicable urbanized 
areas'' in section 490.107(b)(1)(ii)(D) applies to the urbanized areas 
for which State DOTs establish optional targets under section 
490.107(e)(3). As stated above, the thresholds for IRI rating 
determinations in section 490.107(b)(1)(ii)(D) are no longer based on 
the location of pavement sections. Therefore, the urbanized areas with 
a population greater than 1 million will no longer apply in this 
paragraph. In the final rule, the term ``applicable urbanized areas'' 
in section 490.107(b)(1)(ii)(D) applies only to the urbanized areas for 
which State DOTs establish optional targets under section 
490.105(e)(3).
Discussion of Section 490.107(b)(1)(ii)(E) Deleted Section
    The FHWA deleted section 490.107(b)(1)(ii)(E) so State DOTs will 
not be required to declare or describe NHS limits for the entire 
performance period. The NHS limits for pavement condition measures will 
come from the same year's dataset as the pavement condition metric data 
in HPMS. The NHS designations for bridge condition measures will come 
from the same year's dataset as the bridge condition metric data in 
NBI. (See discussion section for section 490.105(d)(3) for more 
detail.)
Discussion of Section 490.107(b)(2)(i) Schedule
    In section 490.107(b)(2)(i), FHWA has delayed the Mid Performance 
Period Progress Report due date by 2 years from 2018 to 2020. This was 
done to be consistent with the delayed start to the performance period 
and Baseline Performance Report, as discussed in section 
490.107(b)(1)(i).
    Discussion of Section 490.107(b)(2)(ii)(C) and (E) Investment 
Strategy Discussion and Target Adjustment Discussion
    The NEPPP noted that the investment strategy discussion in section 
490.107(b)(2)(ii)(C) specifically identifies the State asset management 
plan for the NHS, while the other reports do not specify the NHS. The 
NEPPP requested clarification on the Interstate versus NHS in each of 
the three reports.
    In response to the comments, FHWA inserts the phrase ``for NHS'' 
after ``State asset management plan'' in sections 490.107(b)(1)(ii)(C) 
and 490.107(b)(2)(ii)(E) to clearly indicate that the State asset 
management plan under required under 23 U.S.C. 119(e) is applicable to 
NHS. This revision is consistent with the term ``State asset management 
plan for NHS'' in sections 490.107(b)(2)(ii)(C) and 
490.107(b)(3)(ii)(C). The measures in subparts C and D are applicable 
to the NHS. The measures in subpart C assess the condition of pavements 
on the NHS (which includes the Interstate System and NHS exclusive of 
the Interstate System). The measures in subpart D assess the condition 
of bridges carrying the NHS, which includes on- and off-ramps connected 
to the NHS.
Discussion of Section 490.107(b)(2)(ii)(H) NHPP Target Achievement 
Discussion
    The FHWA amended the language by replacing the phrase ``improve . . 
. condition'' with ``achieve targets,'' when State DOTs describe the 
actions they will take required under section 490.109(f). The FHWA 
received a comment, discussed in section 490.109(f)(1) through (3), 
that the phrase ``improve condition'' could be perceived as a ``worst-
first'' management practice. As discussed in sections 490.109(f)(1) 
through (f)(3), this revision was made to be consistent with the 
statutory language in 23 U.S.C. 119(e)(7).
Discussion of Section 490.107(b)(3)(i) Schedule
    The FHWA delayed the report on the full performance period by 2 
years, from 2020 to 2022. This was done to be consistent with the 
delayed start to the performance period and Baseline Performance 
Report, as discussed in section 490.107(b)(1)(i).
Discussion of Section 490.107(b)(3)(ii)(B) 4-year Progress in Achieving 
Performance Targets
    The FHWA changed the phrase ``. . . each established 4-year target 
in paragraph (b)(1)(ii)(A) or (E) of this section, . . .'' to ``. . . 
each 4-year target established in paragraph (b)(1)(ii)(A) or in 
paragraph (b)(2)(ii)(E) of this section.'' This is an editorial change 
to correct the section reference in the regulatory text.
    The AMPO and New Jersey DOT requested clarification on the 
difference between the reporting requirements in sections 
490.107(b)(3)(ii)(B) and 490.107(b)(3)(ii)(E). The differences between 
the two are that paragraph (B) applies to all targets, including any 
additional (urbanized and non-urbanized area) targets in section 
490.105(e)(3), but paragraph (E) applies only to the statewide NHPP 
targets subject to significant progress determination outlined in 
section 490.109. Additionally, paragraph (B) is a qualitative 
assessment or explanation of any reasons for differences in the actual 
and target values. Paragraph (E) is a summary of accomplishments (e.g., 
how implemented investment strategies impacted the actual condition/
performance) of State DOTs in achievement of 4-year targets for the 
NHPP measures. The FHWA retains sections 490.107(b)(3)(ii)(B) and 
490.107(b)(3)(ii)(E) in the final rule.
Discussion of Section 490.107(b)(3)(ii)(G) NHPP Target Achievement 
Discussion
    As discussed in section 490.107(b)(2)(ii)(H), FHWA amended section 
490.107(b)(3)(ii)(G) by replacing the phrase ``improve . . . 
condition'' with ``achieve targets'' when State DOTs describe the 
actions they will take as required under section 490.109(f). (See 
discussion section for sections 490.107(b)(2)(ii)(H) and 490.109(f)(1) 
through (3).)
Discussion of Section 490.107(c)(1) MPOs Shall Report Established 
Targets to State DOT
    The FHWA amended the language in section 490.107(c)(1) to remove 
the requirement to use the metropolitan planning agreement to document 
how MPOs shall report their established targets to their respective 
State DOTs. The final rule requires MPOs to report their established 
targets to State DOTs in a manner that is documented and mutually 
agreed upon by both parties.
    The Mid-America Regional Council expressed support for the language 
in the NPRM that required the method for reporting targets be 
documented in the metropolitan planning agreement. However, AMPO, ARC, 
COMPASS, NARC, NYSDOT, NYMTC, NYSAMPO, and TEMPO objected to the 
proposed documentation requirement as it would require the metropolitan 
planning agreement to be updated. The Transportation for America's 
commented that ``States should form an agreed to process with all MPOs 
within the State.''
    23 CFR 450.314(h) of the final Planning Rule provides State DOTs 
and MPOs options for mutually identifying the agency roles and 
responsibilities for performance-based planning and programming in 
metropolitan areas in writing, either through the metropolitan planning 
agreements or by some other mutually determined means. To address the 
received comments above and to ensure consistency between this final 
rule and the final Planning Rule, FHWA has removed references to the

[[Page 5917]]

metropolitan planning agreement from this Rule.
    The Connecticut DOT and NYMTC commented that States and MPOs should 
have maximum flexibility and discretion in target setting. As stated in 
discussion for section 490.105(a), MAP-21 does not provide FHWA the 
authority to approve or reject State DOT or MPO established targets. 
The FHWA reiterates that this rule does not hinder the ability of State 
DOTs and MPOs to establish targets that have performance holding steady 
or declining.
    The Memphis Urban Area MPO requested clarification on the frequency 
and method of reporting data to State DOTs. The FHWA did not specify a 
required MPO reporting process in this rule. Please refer to the 23 CFR 
450.324 for the requirements for MPO system performance report in the 
metropolitan transportation plan.
Discussion of Section 490.107(c)(2) MPO System Performance Report
    The FHWA retains the language in section 490.107(c)(2) that 
requires MPOs to report baseline condition/performance and progress 
toward the achievement of their targets in the system performance 
report for the metropolitan transportation plan (MTP), in accordance 
with part 450 of this chapter and as provided in 23 U.S.C. 
134(i)(2)(c). The Mid-America Regional Council expressed their support 
for this requirement.
    The IOWA DOT, NYMTC, and NYSAMPO asked for clarification on the 
timing of the initial Metropolitan Transportation Plan System 
Performance Report, given the variability of MTP adoption schedules. 
The inquiries related to the MTP are outside of the scope of this rule. 
Those inquiries should refer to the Planning final rule.
    The Iowa DOT expressed concerns with submitting the system 
performance report with the Long Range Transportation Plan (LRTP), 
which is required every 4-5 years (depending on air quality in the 
MPO). The Iowa DOT asked how that will line up with the 2-year 
reporting periods outlined in the NPRM. The Iowa DOT also commented 
that the NPRM sets specific dates for implementing the performance 
measure reporting, which may or may not align with LRTP update cycles 
for individual MPO agencies. The NYSAMPO commented that it is important 
to coordinate all of the reporting and target setting timelines for 
each of the performance measure rules so that State DOTs and MPOs are 
not burdened with numerous reporting schedules that are out of synch 
with one another. Transportation for America echoed these concerns, and 
suggested that FHWA ``ensure the performance period being proposed 
syncs up with the plan update cycles for State DOTs and MPOs.'' The 
AMPO and COMPASS advised FHWA to have MPOs align their performance 
periods to their LRTP cycle. The TEMPO stated that each MPO should set 
its own individual target setting and biennial reporting timelines. The 
AMPO requested clarification on whether MPOs would be required to 
report on the same timelines as State DOTs.
    It is true that the performance period and individual MPO planning 
cycles may not coincide, but there is no requirement that they do. At 
the time of MTP adoption (LRTP or MTP), the MPO would include what 
information it had in its system performance report and expand on the 
information with the next report update. In addition, MPOs can choose 
to adopt their MTPS before the 4-5 year requirement, and more closely 
align their planning cycle and the performance period cycle.
    The Iowa DOT requested more detail on what will be required to 
report in their system performance report. The regulatory requirements 
of the system performance report are provided in 23 CFR part 450.\38\ 
The inquiries related to the system performance report are outside of 
the scope of this rule. Those inquiries should refer to the Planning 
final rule.
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    \38\ Statewide and Nonmetropolitan Transportation Planning: 
Metropolitan Transportation Planning (FR Vol. 81, No. 103).
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Section 490.109 Assessing Significant Progress Toward Achieving the 
Performance Targets for the National Highway Performance Program
Discussion of 490.109(a) General
    The FHWA retains the language in section 490.109(a) which makes 
State DOTs accountable for making progress for all pavements and 
bridges on the NHS regardless of ownership. The FHWA made minor 
clerical edits to clarify the cross-references. The AASHTO recommended 
that non-State DOT assets (e.g., assets owned by the Federal 
government, tribal governments, local agencies, and others) be excluded 
from the significant progress determination under section 490.109. The 
AASHTO and State DOTs of Connecticut, Maine, New Hampshire, Vermont, 
and Washington argued that State DOTs may not be legally able to 
collect data on non-State DOT assets and may have no authority to 
control how funding on those assets is spent or assets are maintained. 
As discussed in section 490.105(d), FHWA is aware of a limit to the 
direct impact that State DOTs can have on performance outcomes for the 
non-State controlled assets within the State. However, as the 
recipients and stewards of the NHPP funds for the NHS in respective 
State DOTs, FHWA expects that State DOTs would consider the uncertainty 
and associated performance outcome of the non-State owned assets. The 
FHWA expects State DOTs to coordinate with the appropriate owners of 
the non-State controlled NHS assets in the establishment of State DOT 
targets.
    Both the Alaska DOT&PF and the Oregon DOT suggested alternatives to 
the term significant progress and its definition. The Alaska DOT&PF 
commented that the term be redefined to mean ``meet or exceed the \1/2\ 
target'' or the term should be removed from the rule entirely. The 
Oregon DOT suggested that the term significant progress be revised to 
``adequate'' progress. However, FHWA retains the term ``significant 
progress'' in the final rule because the term is referenced in the 
statute (23 U.S.C. 119(e)(7)).
Discussion of 490.109(b) Frequency
    Section 490.109(b) specifies the frequency for FHWA to determine 
whether a State DOT has or has not made significant progress toward the 
achievement of NHPP targets to be every 2 years (i.e., at the midpoint 
and the end of each performance period) which aligns with State DOT 
Biennial Performance Reports in 490.107. In the NPRM, FHWA stated that 
it expects that during a performance period, State DOTs would routinely 
monitor leading indicators (e.g., program delivery status) to assess if 
they are on track to make significant progress toward achievement of 
their NHPP targets. If a State DOT anticipates that it may not make 
significant progress, it is encouraged to work with FHWA and seek 
technical assistance during the performance period to identify the 
actions that can be taken to improve progress.
    In the NPRM, FHWA sought comment on whether it should require State 
DOTs to more frequently (e.g., annually) evaluate and report the 
progress they have made. The Tennessee DOT supported the 2-year cycle 
of significant progress determinations and added that ``annual 
reporting would be unlikely to show significant differences in results 
than biennial reporting.'' The Missouri DOT commented that State DOTs 
will have the ability to report data annually. The data should be 
updated in HPMS and NBI systems, but State DOTs should not be asked to 
submit a progress report on an annual basis. The AASHTO and

[[Page 5918]]

Connecticut State DOT opposed more frequent reporting and 
determinations.
    The FHWA clarifies that FHWA did not seek comments on the frequency 
of FHWA significant progress determination (i.e., every 2 years). 
Instead, FHWA requested comments on whether or not State DOTs should 
evaluate their condition/performance and report the progress they have 
made more frequently than every 2 years. Through more frequent 
condition/performance evaluation, State DOTs would more frequently 
monitor their condition/performance and have the opportunity to 
proactively take necessary actions make significant progress toward 
achievement of the NHPP targets. The FHWA appreciates the comments, but 
retains the biennial frequency of progress reporting in Sec.  490.107. 
The FHWA strongly encourages State DOTs to routinely monitor their 
condition/performance so they can proactively take actions necessary to 
make significant progress toward achievement of the NHPP targets.
Discussion of Sec.  490.109(c) Schedule
    The FHWA retains the language in section 490.109(c) which says FHWA 
will determine significant progress toward the achievement of a State 
DOT's NHPP targets after the State DOT submits the Mid Performance 
Period Progress Report for progress toward the achievement of 2-year 
targets, and again after the Full Performance Period Progress Report 
for progress toward the achievement of 4-year targets.
    The Missouri and Tennessee DOTs expressed support for the proposed 
timeline, noting that the necessary data is submitted annually and 
therefore FHWA is able to complete their assessment with the frequency 
they deem necessary.
    The Oregon DOT requested clarification on who at FHWA will perform 
the assessment of significant progress.
    The AASHTO and the Oregon and Connecticut DOTs recommend that FHWA 
inform State DOTs of their achievement of making significant progress 
by December 31 of the calendar year in which the assessment was made. 
They also recommended that the rule provide that if a State DOT does 
not receive that information by the deadline, then it is conclusively 
deemed to have made significant progress in that time period. North 
Carolina DOT also commented that notification should be as soon as 
possible.
    The FHWA is committed to a timely notification of significant 
progress determination results to State DOTs so they can take prompt 
actions, as described in section 490.109(f). The FHWA is also committed 
to a timely publication of determination results on the public Web site 
to meet the demands of the public and Congress. The FHWA clarifies that 
prior to its determination, State DOTs are required to report actual 
condition/performance in their Mid Performance Period Progress Report 
and Full Performance Period Progress Report, as provided in sections 
490.107(b)(2)(ii)(A) and 490.107(b)(3)(ii)(A). The FHWA also clarifies 
that the reported actual condition/performance in sections 
490.107(b)(2)(ii)(A) and 490.107(b)(3)(ii)(A) are not a qualitative 
assessment of performance, but they are quantitative values (i.e., 
calculated measures). The qualitative assessment of performance is 
required under sections 490.107(b)(2)(ii)(B) and 490.107(b)(3)(ii)(B). 
With quality HPMS and NBI data from State DOTs, FHWA believes that 
State DOT reported condition/performance will be no different from FHWA 
calculated condition/performance in significant progress determination 
in section 490.109.
    State DOTs are also required to discuss the progress they have made 
toward the achievement of all targets established for the NHPP 
measures, as described in sections 490.107(b)(2)(ii)(F) and 
490.107(b)(3)(ii)(E), in the Mid Performance Period and Full 
Performance Period Progress Reports. The FHWA believes that through 
these requirements, State DOTs will be well aware of whether they will 
make significant progress prior to FHWA determination notification. 
Therefore, FHWA retains the language in section 490.109(c), as proposed 
in the NPRM. The FHWA plans to issue guidance clarifying when the 
determination notification to State DOTs will be made after publication 
of the final rule.
    The North Carolina DOT requested clarification on whether States 
that failed to achieve significant progress would be able to adjust 
their targets. Failure to achieve significant progress does not trigger 
the opportunity or requirement to adjust targets. The State DOTs have 
the opportunity to establish or adjust targets every 2 years, as 
provided in sections 490.105(e)(4)(i) and (e)(4)(ii) and 490.105(e)(6), 
respectively. The process used by FHWA to determine significant 
progress is transparent. As discussed in section 490.105(e)(6), FHWA 
believes if targets are allowed to be adjusted more frequently, then 
the transparency of target and target establishment process will be 
compromised. The FHWA strongly encourages State DOTs to track their 
significant progress on their own, and adjust targets in their Mid 
Performance Period Progress Report as they deem necessary.
Discussion of 490.109(d)(1) Through (d)(3) Source of Data/Information
    In sections 490.109(d)(1) through (d)(3), FHWA proposed data 
extraction dates for the significant progress determination for NHPP 
measures. The proposed data extraction dates were:
     June 15 of the year in which the significant progress 
determination is made for the Interstate System pavement condition 
measures;
     August 15 of the year in which the significant progress 
determination is made for the non-Interstate NHS pavement condition 
measures; and
     June 15 of the year in which the significant progress 
determination is made for the NHS bridge condition measures.
    The Oregon DOT requested a wording change from ``prior year'' to 
``most recent data collected'' in sections 490.109(d)(1) and (d)(2). 
The commenter noted that the term ''prior year'' indicates that data 
has to be collected in the 2nd and 4th years for the non-Interstate NHS 
sections. They asked what if a State wants to collect this data in 
years 1 and 3 of the performance period. The commenter stated that the 
wording should be changed to allow States to use the most recent data 
collected as this gives the States flexibility in selecting data 
collection cycles to match other processes, such as STIP development, 
within the State.
    The FHWA clarifies that the data collection frequency requirement 
for non-Interstate NHS pavement data is every 2 years, as described in 
section 490.309(b)(2). So, in this rule, there is no requirement for 
State DOTs to collect their pavement condition data for the entire non-
Interstate NHS within a particular year. The FHWA also clarifies that 
biennial data collection frequency for non-Interstate NHS requires 
annual data reporting to HPMS making the most recent data collected 
replacing the data from previous data collection cycle. So, if a State 
DOT chooses to collect pavement data for the entire non-Interstate NHS 
in the first year of a performance period and collect data again for 
the entire non-Interstate NHS in the third year of that performance 
period, that State DOT will meet the requirements in section 
490.309(b)(2). The FHWA believes that this approach will not hinder 
State DOTs from selecting their data collection cycles to match other 
processes. Please note that annual pavement data collection

[[Page 5919]]

frequency is required for the Interstate System, as described in 
section 490.309(b)(1). Because of the provided explanation, FHWA 
believes the term ``prior year'' is more appropriate in sections 
490.109(d)(1) and (d)(2) because the term refers to the ``most recent 
data collected and reported'' in HPMS. Therefore, FHWA retains the 
language in sections 490.109(d)(1) and (d)(2), as proposed in the NPRM.
    The FHWA did not receive any substantive comments regarding these 
data extraction dates but received substantive comments on the proposed 
data reporting dates for both pavement and bridge condition measures. 
Please refer to sections 490.311(c)(4) and (c)(5) and 490.411(d) for 
discussion of those comments. As discussed in sections 490.311(c)(4) 
and (c)(5) and 490.411(d), FHWA adopts the language in sections 
490.109(d)(1) through (d)(3) in the final rule.
Discussion of 490.109(d)(4) Baseline Condition Data
    The FHWA revised section 490.109(d)(4) so that the NHS limits for 
significant progress determination for pavement condition measures will 
come from the same year's dataset as the pavement condition metric data 
in HPMS. The NHS designations for the significant progress 
determination for the bridge condition measures will come from the same 
year's dataset as the bridge condition metric data in NBI. Similarly, 
the NHS information for the baseline conditions for significant 
progress determination of the targets for the pavement and bridge 
condition measures will come from the data contained in HPMS and NBI of 
the year in which the Baseline Period Performance Report is due to 
FHWA. (See discussion sections for 490.105(d)(3), and 
490.107(b)(1)(ii)(E) for more detail.)
    In addition, sections 490.313(b)(1) and (b)(2) are revised so that 
IRI condition ratings of Good, Fair, and Poor will no longer depend on 
whether a pavement section is within an urbanized area with a 
population greater than 1 million. Therefore, urbanized area data for 
significant progress determinations of pavement condition targets is no 
longer necessary. (See discussion sections for 490.313(b)(1) for more 
detail.)
Discussion of 490.109(e)(1) General Discussion of Significant Progress 
Determination for Individual NHPP Targets
    The FHWA revised the language in section 490.109(e)(1) to correct a 
typographical error and replaced the word ``and'' with ``through.'' The 
final rule reads ``. . . established by the State DOT for the NHPP 
measures described in 490.109(c)(1) through (c)(3).'' This error was 
noted by AASHTO and the Connecticut and Virginia DOTs.
    The AASHTO and Connecticut DOT commented that significant progress 
should only be determined based on the required targets in section 
490.105(d)(1), not any additional targets State DOTs have voluntarily 
chosen to establish in section 490.105(e)(3). The language in section 
490.109(e)(1) of the NPRM and final Rule is consistent with this. 
Section 490.109(e)(1) specifically says that FHWA will not assess the 
progress achieved for any additional targets a State DOT may establish 
under section 490.105(e)(3). No change to the final rule is required.
Discussion of 490.109(e)(2) Significant Progress Toward Individual NHPP 
Targets
    The FHWA retains the language in section 490.109(e)(2), which 
states that for each NHPP target, progress toward the achievement of 
the target would be considered significant when either of the following 
occur: (1) The actual condition/performance level is equal to or better 
than State DOT Baseline Performance Period Report; or (2) actual 
condition/performance is equal to or better than the established 
target. To make the comparisons in a consistent manner, the language in 
sections 490.313(f) and 490.409(c) includes the precision level (i.e., 
decimal places) for the measures, which is to be calculated to the one 
tenth of a percent (0.1 percent). The Colorado DOT expressed their 
support for the 0.1 percent achievement threshold.
    In the first performance measures NPRM, which addresses safety, 
FHWA proposed in section 490.211 of the NPRM a statistical evaluation 
approach for determining significant progress. Comments received on the 
Safety NPRM indicated that it was too complicated and seemed arbitrary. 
In the Final Rule for safety performance measures, FHWA changed its 
approach from statistical evaluation to improvement over baseline. 
Therefore, in this final rule, FHWA is retaining the determination 
methodology proposed.
    The following summarizes the comments on the proposed methodology 
for determining significant progress. In regard to the proposed 
significant progress methodology, the comments from AASHTO said that 
``the approach must be retained in the final rule.'' They also added 
that the approach would ``give State DOTs flexibility to establish 
aggressive targets if desired but will not result in States being 
punished if they do not meet those targets.'' Missouri DOT also 
supports the approach as ``straightforward and easy to determine.'' 
Oregon DOT voiced their support by indicating that it is ``reasonable 
and accommodates both increasing and decreasing pavement conditions.'' 
Minnesota DOT expressed their support, stating that it would allow 
States to establish declining targets, but still achieve significant 
progress.
    While many State DOTs did not specifically mention their support, 
they indicated their general support for the AASHTO's letter in support 
of the proposed approach. These State DOTs included Alaska, Arkansas, 
Colorado, Florida, Georgia, Idaho, Maryland, Michigan, Missouri, 
Montana, New Jersey, North Dakota, Pennsylvania, South Dakota, and 
Wyoming. The support of the proposed approach was also expressed by the 
Metropolitan Transportation Commission and the Mid-America Regional 
Council.
    However, some commenters expressed disagreement with FHWA's 
proposed method for determining significant progress. Washington DOT 
and the PSRC commented that ``significant change'' should be based on a 
statistical evaluation of the data submitted by the State DOT and 
suggested use of the standard deviation of the data to determine the 
level of significance. The FHWA considered some statistical methods for 
significant progress determination approach during the time of 
preparing the NPRM. However, this option was determined to be 
unfeasible because the magnitude of ``statistically significant 
change'' in condition/performance would have to be an arbitrarily 
selected significance level. Without an established target value, 
determining the magnitude of ``statistically significant change'' was 
not possible. In addition, in the final rule for safety performance 
measures, FHWA changed its approach from statistical evaluation to 
improvement over baseline after receiving comments that the statistical 
methods were ``too complex and difficult.''
    The AASHTO and the Connecticut and Iowa DOTs stated that the use of 
0.1 percent was arbitrary. In the discussion of section 490.109 of the 
NPRM, FHWA found that any improvement better than the baseline 
condition/performance, which represents a 0.1 percent improvement, 
would be viewed as significant progress. Although the AASHTO supported 
the proposed approach for determining significant progress, they argued 
that 0.1 percent improvement above the baseline ``seems

[[Page 5920]]

arbitrary with no basis.'' The Connecticut, Iowa, and Washington DOTs 
made similar comments as well. Oregon DOT cited that 0.1 percent of 
Oregon's Interstate System equates to 1.5 miles for Oregon and argued 
that the 0.1 percent tolerance is too ``tight.'' They suggested 0.5 or 
1 percent tolerance.
    Illinois DOT requested clarification on how ``significant 
progress'' is defined, asking whether it is any improvement made toward 
the target, a measure of a partial percentage point, or something else.
    As stated above, the proposed approach for determining significant 
progress is based on comparison between: (1) Target and the actual 
condition/performance and (2) baseline condition/performance and the 
actual condition/performance. To make the comparisons in a consistent 
manner, the language in sections 490.313(f) and 490.409(c) included 
precision level (i.e., decimal places) of the measures, which is to be 
calculated to the one tenth of a percent. By specifying precision 
levels for the measures, FHWA believes the comparisons in significant 
progress determinations would be done in a consistent manner. The FHWA 
understands decimal places of measures could be translated to a 
tolerance level in making significant progress, as Oregon DOT's example 
indicated. However, FHWA believes a larger tolerance level with less 
precision level could work against State DOTs. For example, with a 1 
percent tolerance (i.e., measures round to the nearest to 1 whole 
percent), if a State DOT actually made 0.1 percent improvement above 
the baseline condition/performance, it would not be considered 
significant progress because the 0.1 percent would be rounded down and 
the condition/performance level would be considered as equal to the 
baseline condition/performance. Therefore, FHWA retains the proposed 
language.
    The Center for American Progress and Transportation for America 
stated that 2-year target establishment and significant progress 
determinations should be required for MPOs. They argued that 
accountability requirements should be the same for State DOTs and MPOs. 
In 23 U.S.C. 119(e)(7), biennial significant progress determinations 
under section 490.109 only apply to State DOT NHPP targets. There is 
nothing in the statute that requires a similar assessment with similar 
consequences for MPOs. Therefore, FHWA does not have the statutory 
authority to make significant progress determination on MPO targets.
    The TEMPO recommended expanding section 490.109(e)(2) to allow FHWA 
Division Administrators to determine significant progress. As stated in 
section 490.109(a), FHWA will assess each State DOT target for the NHPP 
measure to determine the significant progress made toward its 
achievement with the method prescribed in section 490.109. The FHWA 
believes the method outlined in section 490.109 provides a fair and 
consistent process to determine compliance across State DOTs. Although 
FHWA Division Offices will notify State DOTs with the results of the 
significant progress determination, FHWA clarifies that no one 
individual in FHWA will make the significant progress determination at 
his or her discretion. Following the publication of the final rule, 
FHWA will publish guidance on the timing of significant progress 
determinations and notifications. Therefore, FHWA retains the language 
in section 490.109(e)(2), as proposed in the NPRM.
Discussion of 490.109(e)(3) Phase-In of New Requirements for Interstate 
System Pavement Condition Measures
    The FHWA proposed a phase-in of new requirements for Interstate 
pavement condition measures. Only at the midpoint of the first 
performance period and only for the targets for Interstate System 
pavement condition measures in section 490.307(a)(1) and (a)(2), FHWA 
would not make a determination of significant progress toward the 
achievement of 2-year targets for these measures. The FHWA received 
comments related to the phase-in of Interstate System pavement 
condition measures in section 490.105(e)(7), but no direct comments on 
the phase-in proposed in section 490.109(e)(3).
    Since these measures are being phased-in, FHWA will not determine 
significant progress until after the measures are established and the 
State DOTs have had time to complete a biennial reporting cycle. As 
discussed in section 490.105(e)(7), FHWA retains the language in 
section 490.105(e)(7)(ii) that for the first performance period only, 
State DOTs are not required to report their 2-year targets and baseline 
condition/performance for the Interstate pavement condition measures in 
their Baseline Performance Period Report. Accordingly, FHWA will 
classify the assessment of progress toward the achievement of targets 
for the Interstate pavement condition measures as ``progress not 
determined'' at the 2-year significant progress determination. The FHWA 
retains the language in section 490.109(e)(3) as proposed in the NPRM. 
(See discussion for section 490.105(e)(7) for more details.)
Discussion of Sec.  490.109(e)(4) Insufficient Data and/or Information
    The FHWA proposed that if a State DOT does not provide sufficient 
data or information necessary for FHWA to make significant progress 
determination for each bridge or pavement condition target, FHWA would 
determine that the State DOT has not made significant progress toward 
the achievement of the applicable individual targets.
    The State DOTs of Connecticut, Oklahoma, and Oregon requested that 
the phrase ``does not provide sufficient data and/or information'' be 
clarified.
    In response to these comments, FHWA revised section 490.109(e)(4). 
The revised text in section 490.109(e)(4)(i) specifies that all 
measures must meet the reporting requirements in section 490.107. If a 
State DOT does not submit a required report, targets, or other 
information as specified in section 490.107, then FHWA will determine 
that the State DOT has not made significant progress toward the 
achievement of NHPP target.
    Section 490.109(e)(4)(ii) specifies if FHWA determines that a total 
mainline lane-miles of missing, invalid, or unresolved sections for 
Interstate System is 5 percent or more, as described in section 
490.313(b)(4)(i), then FHWA will determine that the State DOT has not 
made significant progress toward the achievement of targets for the 
Interstate System pavement condition measures in section 490.105(c)(1).
    Section 490.109(e)(4)(iii) specifies if FHWA determines that a 
total mainline lane-miles of missing, invalid, or unresolved sections 
for non-Interstate NHS is 5 percent or more, as described in section 
490.313(b)(4)(i), then FHWA will determine that the State DOT has not 
made significant progress toward the achievement of targets for the 
non-Interstate NHS pavement condition measures in section 
490.105(c)(2). (See discussion for section 490.313(b)(4) for further 
discussion and information on the revisions to this section.)
    Section 490.109(e)(4)(iv) specifies that for the NHS bridge 
condition measures in section 490.105(c)(3), if a State DOT's reported 
data is not cleared in the NBI as of June 15, then FHWA will determine 
that the State DOT has not made significant progress toward the 
achievement of targets for the bridge condition measures in section 
490.105(c)(3).
    As stated above in section 490.109(e)(2), the approach for 
determining significant progress is

[[Page 5921]]

based on comparison between: (1) Target and the actual condition/
performance and (2) baseline condition/performance and the actual 
condition/performance. Section 490.109(e)(4)(v) provides an approach 
for determining significant progress when reported data for baseline 
condition/performance is determined ``insufficient'' in the year in 
which the Baseline Performance Period Report is due to FHWA. If the 
data for baseline condition/performance is determined insufficient, the 
comparison between the baseline condition/performance and the actual 
condition/performance cannot be made. In this situation, FHWA will make 
the significant progress determination for that measure by comparing 
the target to the actual condition/performance. The FHWA will determine 
that a State DOT has not made significant progress toward the 
achievement of a target if data for the baseline condition/performance 
was determined insufficient previously, and the actual condition/
performance level is not equal to or better than the established 
target.
Discussion of Sec.  490.109(e)(5)(i) Extenuating Circumstances
    The FHWA amended the language for section 490.109(e)(5)(i) related 
to the list of extenuating circumstances that may prevent a State DOT 
from making significant progress. In the final rule, FHWA added 
language to clarify that extenuating circumstances include the sudden 
discontinuation of Federally furnished data due to a lack of Federal 
funding. This text was added to clarify that the lack of funding is not 
a stand-alone reason, but it is tied to the data access associated with 
target establishment and evaluation.
    The list of extenuating circumstances details issues that could be 
considered outside of State DOTs ability to make significant progress 
toward achieving targets. If a State DOT encounters these extenuating 
circumstances, State DOTs would document the explanation in their 
performance progress report. If the explanation is accepted by FHWA, 
then the associated NHPP targets would be excluded from FHWA 
significant progress determinations. Comments from a private citizen 
\39\ supported FHWA's proposal.
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    \39\ Nicholas Cazares, Docket Letter FHWA-2013-0053-0078.
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    The AASHTO comment letter suggested adding the following additional 
extenuating circumstances: (1) Lack of Federal funding through a long-
term surface transportation program; (2) Cost inflation beyond assumed 
levels; and (3) another cause reported by the State not covered under 
the previous circumstances. The Connecticut DOT made identical 
comments. The California DOT commented that the situations considered 
extenuating circumstances are too narrow. They suggested broader 
circumstances to include fiscal limitations and project delivery 
constraints. The Illinois DOT recommended that the rule account for the 
uncertain funding impacts by explicitly recognizing how this might 
inhibit the achievement of targets for significant progress 
requirements and determinations in section 490.109. The Colorado and 
Washington DOTs sought clarification on whether a lack of funding would 
be considered an extenuating circumstance that would result in a 
finding of ``progress not determined'' by FHWA. The Minnesota and North 
Carolina DOTs commented that budget uncertainties could result in a 
lack of funding and should be an extenuating circumstance. The Colorado 
DOT requested clarification on whether a sudden, unforeseen reduction 
in Federal funding would be considered an extenuating circumstance. The 
Oregon DOT commented that the discussion of proposed extenuating 
circumstances covers a range of possible circumstances, but it is also 
limited to those specifically listed in the rule. The Oregon DOT 
suggested including some language to allow States to describe 
circumstances not on the list. They added that there could be 
situations not yet thought of that should be open for consideration. 
The Tennessee DOT proposed that the significant progress determinations 
account for decreases in anticipated Federal funding, inflation above 
expected rates, or other unforeseeable reasons. The Washington DOT 
commented that FHWA should consider extenuating circumstances 
documented by a State DOT in the assessment of progress toward the 
achievement of NHPP targets in the relevant State Biennial Performance 
Report.
    The majority of the above comments wanted to add financial 
uncertainty to the list of extenuating circumstances. As noted in the 
NPRM, FHWA understands that there are many external factors that could 
impact the condition/performance and the State DOT's ability to make 
significant progress, including financial uncertainty. However, FHWA 
believes that the frequency of target establishment, and the ability to 
adjust 4-year targets at the mid-point of a performance period creates 
a relatively short forecast window that should allow State DOTs to 
consider the impacts of funding shortfalls and uncertainty (e.g., lack 
of funding for investment, cost escalation, and others) in initial 
targets and any subsequent adjustments. As discussed in section 
490.105(e)(6), the State Biennial Performance Report has the appearance 
that State DOTs must consider uncertainties 2 years in advance. In 
truth, the duration that State DOTs have to consider uncertainties is 
shorter than 2 years. For example, the 2-year target established in 
2018 is not actually submitted until October 2018 when the first State 
Biennial Performance Report is due. Therefore, while it reflects a 2-
year period (2018 and 2019), it is in place for less than 2 years 
(i.e., October 2018 to December 2019). (See discussion section for 
section 490.105(e)(6) for additional details of the timing of reports 
and the impact on targets.) The FHWA does not intend to use the 
significant progress determination process to be punitive or to lead 
State DOTs to simply establish easy targets. The FHWA believes one 
purpose of establishing targets and assessing progress is to encourage 
State DOTs and MPOs to establish data-supported targets that consider 
anticipated resources and potential uncertainties. Establishing targets 
and assessing progress also encourage State DOTs to provide data-
supported explanations of condition/performance changes. If a State DOT 
did not make significant progress because of the absence of a long-term 
surface transportation program, unanticipated cost escalation, and 
other reasons, FHWA expects that State DOT would provide data-supported 
explanations for not achieving significant progress.
    The FHWA strongly believes transportation performance management is 
not just about making significant progress. It is also about 
effectively communicating to Congress and the public how the absence of 
a long-term surface transportation program, unanticipated cost 
escalation, and other circumstances are impacting the condition/
performance of the transportation infrastructure. Moreover, FHWA 
believes the determination process must be meaningful and bring 
accountability to the program as MAP-21 and FAST Act intended. 
Therefore, FHWA believes that adding more circumstances to exclude 
State DOTs from the determination will decrease the level of 
accountability. For these reasons, FHWA is keeping the list of 
extenuating circumstances short. The FHWA modified the language in 
section 490.109(e)(5) only to include the

[[Page 5922]]

discontinuation of Federally furnished data due to a lack of Federal 
funding.
    In section 490.109(e)(5)(ii), FHWA proposed to accept a State DOT's 
explanation if it pertains to the extenuating circumstances listed in 
section 490.109(e)(5)(i). The FHWA would classify the progress toward 
achieving the relevant NHPP targets as ``progress not determined,'' and 
those targets will be excluded from the determination. The FHWA did not 
receive any substantive comments regarding this paragraph. Therefore, 
FHWA retains the language in section 490.109(e)(5)(ii) in the final 
rule.
Discussion of Sec.  490.109(f) Performance Achievement Requirements
    The AASHTO, Oregon DOT, and a private citizen \40\ support basing 
performance achievement on two consecutive FHWA determinations. This 
provides State DOTs some opportunity to improve their performance 
before being assessed the penalty. The ASCE took the opposite view and 
argued that if a State DOT did not make significant progress after two 
consecutive reviews, intervention by the DOT should be immediate. They 
argued that the proposed timeline for penalties did not represent the 
type of speedy accountability that the public expects and that it will 
benefit our transportation system. Section 119(e)(7) of Title 23 of the 
U.S.C. required States to describe the actions they will take to 
achieve targets after they fail to achieve significant progress on two 
consecutive determinations. Subsequently, FAST Act removed the phrase 
``two consecutive'' in 23 U.S.C. 119(e)(7) and added that the 
description of actions will be included in the biennial performance 
report under 23 U.S.C. 150(e). Pursuant to 23 U.S.C. 119(e)(7), FHWA 
amended section 490.109(f) so that State DOTs are required to describe 
the actions they will take to achieve targets after they fail to 
achieve significant progress for each FHWA biennial determination. The 
FHWA believes this required change in section 490.109(f) will ensure 
the accountability ASCE urged in their comment.
---------------------------------------------------------------------------

    \40\ Nicholas Cazares Docket Letter FHWA-2013-0053-0078.
---------------------------------------------------------------------------

    The Southeast Pavement Preservation Partnership commented that the 
short time horizon given to recognize improvement in the pavement 
network may force States into a ``worst-first'' mentality for the 
preservation of pavements. The FHWA agrees that indiscriminately 
attempting to improve condition could lead to a ``worst-first'' 
mentality. The FHWA also realizes that the proposed language in section 
490.109(f) is inconsistent with the principle of ``Recognize Fiscal 
Constraints'' \41\ in the NPRM preamble. In addition, FHWA emphasizes 
that, as discussed in section 490.105, State DOTs and MPOs have the 
authority to establish their targets at their discretion. The MAP-21 
does not provide FHWA the authority to approve or reject State DOT or 
MPO established targets.
---------------------------------------------------------------------------

    \41\ Nine principles used in the development of proposed 
regulations for national performance management measures under 23 
U.S.C. 150(c), www.regulatons.gov, Docket FHWA-2013-0053 ``Recognize 
Fiscal Constraints''--provide for an approach that encourages the 
optimal investment of Federal funds to maximize performance but 
recognize that, when operating with scarce resources, performance 
cannot always be improved.
---------------------------------------------------------------------------

    Therefore, FHWA amended section 490.109(f)(1) through (f)(3) by 
replacing the phrase ``improve . . . condition'' with ``achieve 
targets'' to be consistent with the nine principles and 23 U.S.C. 
119(e)(7). Similarly, in section 490.109(f)(6), FHWA replaces the 
phrase ``improve progress'' with ``achieve targets'' to be consistent 
with the statutory language in 23 U.S.C. 119(e)(7).
Discussion of Section 490.111 Incorporation by Reference
    The FHWA proposed to incorporate by reference several items. First, 
FHWA proposed to incorporate the HPMS Field Manual to codify the data 
requirements for measures, as discussed throughout part 490, and to be 
consistent with the HPMS reporting requirements. Second, FHWA also 
proposed to incorporate by reference the Recording and Coding Guide for 
the Structure Inventory and Appraisal of the Nation's Bridges (NBI 
Coding Guide), which contains all of the NBI items listed in subpart D. 
Finally, FHWA proposed to incorporate by reference five permanent 
AASHTO Standards (M328-14, R36-13, R43-13, R48-10, R57-14) and three 
provisional AASHTO Standards (PP68-14, PP69-10, PP70-10) to codify the 
methods and devices used to collect data for the metrics (i.e., IRI, 
Cracking Percent, rutting, and faulting). The FHWA proposed specific 
versions of each item in the NPRM with an understanding that future 
changes to the HPMS Field Manual, NBI Coding Guide, and AASHTO 
Standards will be subject to Federal Register notices. Because of the 
incorporation by reference, FHWA had posted the Proposed HPMS Field 
Manual 2015 for 2nd Performance Measure NPRM,\42\ the 10 proposed 
AASHTO Standards, and the NBI Coding Guide on the docket.
---------------------------------------------------------------------------

    \42\ Proposed HPMS Field Manual 2015 for 2nd Performance Measure 
NPRM: Docket Document FHWA-2013-0053-0050: http://www.regulations.gov/#!documentDetail;D=FHWA-2013-0053-0050.
---------------------------------------------------------------------------

    The Mid-America Regional Council expressed general support for the 
incorporation by reference of the proposed documents, stating ``the use 
of widely accepted standards and calculation methods will facilitate 
the establishment of targets and monitoring of progress toward their 
achievement.'' The FHWA agrees and appreciates the comment.
    The Alabama DOT recommended that FHWA consider adding AASHTO R56-10 
(Standard Practice for Certification of Inertial Profiling Systems) in 
the final rule. The FHWA appreciates the need for certification of the 
Inertial Profiling Systems used in the HPMS data collection and 
included a requirement for equipment certification as part of the Data 
Quality Management Program in section 490.319(c). It is expected that 
State DOTs would specify AASHTO R56 or an equivalent standard as their 
method for equipment certification in the State Data Quality Management 
Program.
    The AASHTO, Alaska DOT&PF, and Connecticut DOT recommended 
modifying the wording of the proposed rule ``so that any proposed 
changes to items (b)(1) or (b)(2) would be subject to public notice and 
comment by State DOTs and other affected parties''.\43\ The FHWA agrees 
that any updated versions of the HPMS Field Manual and the AASHTO 
Standards will not be incorporated by reference without public notice 
and comment.
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    \43\ State DOTs of Alaska, Connecticut, Idaho, Montana, North 
Dakota, Oklahoma, Oregon, South Dakota, and Wyoming.
---------------------------------------------------------------------------

    The AASHTO and the State DOTs of Connecticut, Florida, Mississippi, 
North Dakota, Iowa, and Oregon commented that AASHTO standards are 
developed in a voluntary manner and are used by State DOTs in a 
voluntary manner. Commenters noted that incorporating these standards 
into a Federal rulemaking is not their intended use and could cause 
unintended consequences. The FHWA recognizes the voluntary process used 
to develop AASHTO Standards and appreciates the efforts of State DOTs 
in creating them. However, the five permanent AASHTO Standards 
incorporated by reference in section 490.111 of this final rule contain 
well-known protocols for data collection, equipment requirements, and 
data compilation. These protocols are useful in determining pavement 
performance. Since these standards have been balloted and approved by a

[[Page 5923]]

majority of State DOTs, it is preferable that State DOTs use the 
appropriate parts of these standards to guide quality data collection, 
even though additional calculations may be needed to meet the reporting 
requirements for the HPMS Field Manual.
    The AASHTO and the State DOTs of Connecticut, Iowa, Minnesota, 
Missouri, and North Dakota recommended that FHWA ``develop a mechanism 
. . . to ensure that the most recent version of AASHTO standards is 
used or not used as appropriate.'' Similarly, Oregon DOT recommended 
that FHWA provide States with some flexibility in which versions of 
AASHTO Standards they use. The Oregon DOT recommended that instead of 
directly referencing specific standards the final rule, FHWA should 
provide separate guidance for this information.
    The FHWA appreciates the desire for flexibility in application of 
standards and the latest versions. However, Federal law requires a 
formal comment and review process for any modification of a document 
incorporated by reference in a rulemaking. The FHWA may undertake this 
process in the future, but there is no mechanism to automatically 
ensure that the latest versions of AASHTO Standards be used. The final 
rule retains the language in section 490.111(b).
    The TEMPO, Oregon DOT, and Texas DOT expressed concern over FHWA's 
proposal to use provisional AASHTO Standards that will be refined 
following completion of an ongoing study on cracking and rutting 
measurements. When provisional standards become full standards, changes 
may occur in the reported data, causing inconsistencies from previously 
reported data. The FHWA agrees with the commenters, and removed 
references to provisional AASHTO standards PP67, PP68, PP69, and PP70 
to ensure consistency in reporting. Specific guidance on data 
collection and reporting for the topics covered by these provisional 
standards has been added to the HPMS Field Manual, which is posted on 
the docket. (See discussion section for section 490.309 for more 
details.)
    In addition, the Center for Auto Safety, PSRC, and Public 
Resource.org expressed concern over the availability of the documents 
incorporated by reference. The PSRC commented that ``section 490.111 
lists AASHTO Standard Specifications that States must follow when 
collecting and calculating pavement distress; however, these 
specifications are not freely available. Please consider providing 
access to the AASHTO standards for pavement data collection as a 
component of MAP-21 implementation.'' In a joint letter, the Center of 
Auto Safety and Publicresource.org expressed concern that the AASHTO 
standards incorporated by reference were not freely available to the 
public.
    While FHWA acknowledges that the proposed AASHTO Standards are 
available for purchase on the AASHTO Web site, they were posted on the 
docket for review by the public. Furthermore, AASHTO provides copies of 
all Standards to State DOTs without charge. Therefore, FHWA retains the 
language as proposed.
    The Louisiana DOT commented that the final rule should specify that 
those documents incorporated by reference are ``revised to all English 
units of measure to be consistent and to eliminate the numerous metric 
to English conversion rounding issue.'' The HPMS Field Manual that is 
incorporated in the final rule indicates that English units are the 
preferred method for measurement. However, there is no prohibition on 
using metric devices for measurement and converting measurements to the 
English standards. State DOTs electing to convert metric measurement 
are guided to follow the accepted U.S. standard process \44\ for 
conversions.
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    \44\ Process is defined in Publication SP 1038-2006 from the 
National Institute of Standards.
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    Regarding the proposed HPMS Field Manual, Wisconsin DOT asked when 
the proposed file that reflects these changes would be available if the 
HPMS Field Manual would continue to be re-released every year. In 
response to those questions, the final rule incorporates the revisions 
to the HPMS Field Manual, which is available on the docket with the 
final rule. The incorporation by reference requires that future updates 
to the HPMS Field Manual be made through a formal public comment and 
review process.
    The PSRC asked which standards should be used to collect IRI data. 
The PSRC also asked for clarification on the following: (1) Whether 
bituminous road would include those with a chip seal wearing surface; 
(2) whether the AASHTO method required for distress evaluation is also 
appropriate for chip sealed surfaces; and (3) whether the percent 
cracking distress only refers to fatigue and/or alligator cracking.
    In response, the HPMS Field Manual has been revised to clarify the 
standards to be used to collect and report all pavement measurements to 
the HPMS.
    The AASHTO commented that in section 490.309(a), the word 
``include'' should be changed to ``are.'' The use of ``include'' 
suggests that there could be additional pavement metrics or 
requirements that are not discussed in this section or elsewhere in the 
NPRM. The FHWA appreciates the comment and has amended the language in 
section 490.309(a) to clarify the extent of the metrics and data 
elements State DOTs are required to report.

B. Subpart C National Performance Management Measures for Assessing 
Pavement Condition

Discussion of Section 490.301 Purpose
    To implement the statutory provisions under 23 U.S.C. 
150(c)(3)(A)(ii)(I) and(II), FHWA proposed a statement of purpose which 
required the establishment of performance measures for State DOTs to 
use to assess the condition of pavements on the Interstate System and 
the NHS excluding the Interstate System. No comments specific to this 
section were received, although Washington DOT concurred with the 
concept that MAP-21 provided more flexibility in the use of Federal 
funds.
Discussion of Section 490.303 Applicability
    This section described the applicability of this rule to highways 
on the NHS for purposes of implementing the NHPP. Comments from 19 
State DOTs (Arkansas, Colorado, Connecticut, Florida, Georgia, Iowa, 
Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, 
Oklahoma, Oregon, Pennsylvania, Texas, Vermont, and Washington State), 
and AASHTO expressed concerns about the requirements to report pavement 
conditions on routes not owned or operated by States. The commenters 
also inquired as to whether required reporting included ramps and 
similar connectors.
    In the NPRM, FHWA indicated that the pavement measure would apply 
to all mainline highways on the NHS. The 19 State DOTs identified 
above, the AASHTO, AMPO, ARC, Center for American Progress, COMPASS, 
NARC, National Center for Pavement Preservation, NYMTC, and one 
anonymous commenter generally agreed that State DOTs and MPOs have no 
authority or control over maintenance and/or investment decisions on 
some of the assets on NHS. Therefore, commenters said State DOTs and 
MPOs should not be held responsible for the reporting of data. The 
commenters suggested that the responsibility for data collection, 
reporting, and programming rests with the entities that own the highway 
system. Similar comments were raised, as discussed in section 
490.105(d), regarding highway

[[Page 5924]]

ownership as it pertains to the accountable entity to establish and 
achieve targets. The statutory language in MAP-21 requires that the 
performance management requirements under 23 U.S.C. 150 and NHPP under 
23 U.S.C. 119 apply to the entire NHS and Interstate System, not to a 
subset of the NHS (e.g., ``State DOT owned or operated Interstate 
System,'' ``State DOT owned or operated National Highway System,'' and 
others) as the commenters would prefer. The MAP-21 does not define the 
terms ``State'' and ``MPOs'' for purposes of 23 U.S.C. 150 and 119 as 
something other than what is already defined elsewhere in MAP-21. 
Accordingly, FHWA retains the language in section 490.303 for purposes 
of the performance management requirements in 23 U.S.C. 150 and 
119(e)(7), which require performance measures for the entire NHS and 
Interstate System within the State. The FHWA evaluated the extent of 
the enhanced NHS that is not owned or maintained by State DOTs. In that 
analysis,\45\ FHWA found that a majority of State DOTs own at least 90 
percent of the Interstate (40 States) and non-Interstate NHS (28 
States) within the State boundary. The FHWA expects State DOTs to 
coordinate with other entities that own and maintain portions of the 
NHS in support of these new performance requirements.
---------------------------------------------------------------------------

    \45\ Docket Document.
---------------------------------------------------------------------------

    The New York DOT and Seattle DOT provided comments to express 
concern with the focus on the NHS. They commented that this system only 
comprises a portion of the roadways they need to maintain and improve. 
The FHWA appreciates these comments and recognizes the challenges that 
transportation and planning organizations are faced with in managing 
the transportation system under tight budgetary constraints. However, 
23 U.S.C. 150 requires the measure to apply to both the Interstate 
System and the non-Interstate NHS and precludes FHWA from establishing 
measures outside those areas described in 23 U.S.C. 150(c). Therefore, 
FHWA cannot change the applicability of the measures beyond the limits 
defined in this section of title 23 U.S.C. (See discussion on target 
scope for the measures in the discussion section for section 
490.105(d)(1).)
    The National Highway System routes for pavement conditions are 
specifically defined as mainline highways excluding ramps and 
connectors. The comments received on the proposed requirement to limit 
the applicability to the mainline highways of the NHS for the pavement 
measure were supportive of this requirement.
Discussion of Section 490.305 Definitions
    The NPRM proposed a number of definitions related to pavement 
performance to clarify specific meaning in Subpart C. Where additional 
clarification is needed, the HPMS Field Manual is to be used for 
interpretation. The Ada County Highway District (ACHD) commented that 
both the definition and means of computing Cracking Percent are 
unclear. They requested that the final rule either describe how the 
metric should be computed or reference the HPMS Field Manual, whose 
definition is clearer. The Iowa DOT expressed concern over the 
definition of PCC pavements. They noted that the definition does not 
appear to cover all possible types of cracks and is overly simplistic. 
As a result, a very small crack could cause an entire pavement slab to 
be assigned a ``failing'' grade. They suggested that the definition use 
``percent slabs cracked'' for PCC overlay projects. The FHWA agrees 
with this concern and has made changes to the thresholds for PCC 
pavements described below and in revisions to the HPMS Field Manual. 
The Portland Cement Association commented that composite pavement 
should be added to the rule as a fourth pavement type. They remarked 
that composite pavements consist of an asphalt overlay of existing 
concrete pavement (either jointed or Continuously Reinforced Concrete 
Pavement). They argued that composite pavement behaves differently than 
asphalt pavements and will respond differently to preservation, repair, 
rehabilitation, and replacement requirements. As such, defining 
composite pavement as a separate pavement type will provide a more 
consistent assessment of roughness and distress. While there is merit 
to this suggestion, not all State DOTs have a complete inventory 
indicating the limits of composite pavement on their networks. The FHWA 
has concerns about the cost of requiring this level of detail and does 
not find it justified at this time. Therefore, the comment was not 
accepted.
    An anonymous commenter requested that FHWA add additional details 
to the pavement cracking definition, noting that the definition in HPMS 
is too vague. The FHWA does not think the definition used here is too 
vague; however, the details about measurement and reporting have been 
revised in the sections that follow to improve clarity.
    The Oregon DOT expressed concern with the definition for Cracking 
Percent, spalling, and visible defects in the proposed rule. In 
addition, the commenter stated that the proposed unintentional break 
cracking definition is not included in AASHTO standards or the HMPS 
Field Manual. The definitions in the final rule are identical to those 
used in the HPMS Field Manual and are intended to cover the typical 
conditions that are typically measured on highway pavements. The NPRM 
defined a term called Pavement Surface Rating that might be used with 
manual evaluation of pavement surfaces. The Alabama DOT stated that PSR 
should refer to ``Present Serviceability Rating'', rather than 
``Pavement Surface Rating.'' The FHWA acknowledges the error in the 
term used and has revised the language the definition to read ``Present 
Serviceability Rating'' (PSR) as ``an observation based system used to 
rate pavements.'' The prohibition on its use was deleted from the 
definition because the use of PSR is permitted in the final rule for 
reporting conditions on certain pavement sections as discussed in 
sections 490.309 and 490.311.
    In a joint submission, the State DOTs of Vermont, Maine, and New 
Hampshire commented that the definition for cracking in the proposed 
rule was unclear and stated that more work is necessary to identify 
data collection requirements and interpretation of the cracking 
performance metric. In addition, the commenters expressed concern with 
the proposed data collection methodology for rutting. The commenters 
said the 5-point system can underestimate rutting measurements and the 
differences between the 5-point system and the automated transverse 
data profile can lead to inconsistent data presentation at the national 
level. The FHWA agrees that there is some ambiguity in the description 
of the methods used for collecting and reporting cracking and rutting 
and has made changes in the sections that follow. The definitions used 
in the NPRM are adequate and have been retained in the final rule. The 
Louisiana DOT expressed concern with several definitions in the 
proposed rule and urged FHWA to develop standardized definitions. In 
addition, the commenter remarked that the proposed rule did not include 
a definition for transverse crack. The issues raised by Louisiana are 
covered in the specific sections of the final rule and discussed in the 
sections describing the measurement and reporting of each distress.
    In the final rule, FHWA adds a definition for a ``Pavement 
Section'' as a nominally 0.1 mile-long reported

[[Page 5925]]

segment that defines the limits of pavement condition metrics required 
by FHWA. The added definition is to clearly differentiate between 
reported condition metric sections and dynamically segmented condition 
metric sections for calculating measures and determining missing, 
invalid, and unresolved data. Please see discussion in section 490.309 
for more details.
    The FHWA proposed a definition for the term ``sampling'' as ``a 
means for measuring pavement conditions on a short section of pavement 
as a statistical representation for the entire section.'' The FHWA also 
proposed in the NPRM that sampling is not to be used to measure or rate 
Interstate and non-Interstate NHS pavement conditions. As discussed in 
section 490.309, FHWA retains the language stating that no sampling of 
condition metric and inventory data items is allowed for required 
pavement condition data and their inventory data items for performance 
measures or condition rating. To ensure consistency, FHWA revised the 
definition of sampling by adding ``Sampling is not to be used to 
measure or rate NHS pavement conditions.'' This reflects the 
requirements in sections 490.309 and 490.313(e).
Discussion of Section 490.307 National Performance Management Measures 
for Assessing Pavement Condition
    This section proposed four performance measures required by 23 
U.S.C. 150(c)(3)(A)(ii)(I) and(II) for measuring pavement conditions, 
two for the Interstate System, and two for the NHS excluding the 
Interstate System. Twenty comments were received from highway agencies, 
planning organizations, local governments, and industry. In summary, 
the issues raised included: (1) Not including traffic in the measures; 
(2) the use of the terms ``Good,'' ``Fair,'' and ``Poor;'' (3) 
inconsistency in how those terms are determined for pavements and 
bridges; and (4) finalizing the enhanced NHS.
    In the NPRM, FHWA asked for comments on whether other factors such 
as facility location, functional class, level of use, or environment 
should be considered in the design of the pavement performance measure. 
The Louisiana DOT disagreed with the language in the proposed rule. The 
commenter argued that traffic is an important measure of pavement 
condition because of the impact that truck traffic has on the long-term 
structural viability of pavements and bridges. The AMPO, NYMTC, and 
Washington DOT provided comments that suggested the pavement measures 
be weighted by the level of traffic on the roadway. The FHWA agrees 
that traffic impacts pavement conditions. However, FHWA believes 
incorporating traffic volume in the pavement condition measures could 
unintentionally force the State DOTs and MPOs put more emphasis on 
high-trafficked highway sections. The FHWA believes incorporating 
traffic in the investment decisionmaking should be dictated by local 
priorities. So, FHWA does not incorporate traffic in the pavement 
condition measures in the final rule. A private citizen, William 
Grenke, commented that there should be separate ratings for pavement 
performance and pavement maintenance level of service. While there is 
merit to this suggestion, the statute limits pavement performance in 
this rule to pavement conditions.
    The AASHTO, Maryland SHA, and Minnesota DOT suggested expanding the 
terms ``Good'', ``Fair'', and ``Poor'' to describe the level of repair 
needed to address each respective condition level. The Connecticut DOT 
opposed making this change. The Memphis MPO expressed support for the 
transition to a numerical based scoring system to assess the quality of 
NHS roads and bridges as well as Interstate pavement. The commenter 
argued that using numerical scoring eliminates the ambiguity associated 
with qualitative scores (e.g., Good, Fair, or Poor).
    In selecting the terms and calculation methodologies in the final 
rule, FHWA intended to identify pavement conditions where ``Good'' 
suggests no major investment is needed and ``Poor'' suggests conditions 
where major investment for pavement reconstruction is needed. ``Fair'' 
pavement conditions suggest that minor expenditures for maintenance and 
repairs are expected. The MAP-21 delegates the selection of actions to 
States. It would be inappropriate for FHWA to prescribe any actions 
needed to address a respective condition level. The FHWA agrees with 
comments from Connecticut DOT that no change should be made to these 
terms and definitions as they are terms commonly understood by the 
public.
    The AASHTO, NEPPP, and NYMTC commented that the focus on Good and 
Poor conditions will not promote management practices to preserve 
existing conditions. The focus on Good and Poor pavements conditions 
for measuring performance is not intended to prescribe State DOT 
management practices. The statute makes preservation activities 
eligible for NHPP funding and State DOTs may find that preservation 
programs are cost effective ways to achieve performance targets. 
However, FHWA has no authority to require them to use preservation 
programs.
    The South Carolina DOT commented that the rating system of Good, 
Fair, and Poor as a national standard presents a conflict. By setting 
new metrics for measuring system performance nationally, it challenges 
State DOTs to tell a new story about the condition of their assets. If 
State DOTs have traditionally used those terms in their own metrics to 
communicate the condition of our asset to the public, stakeholders, and 
legislators, it could give the appearance that State DOTs are 
``manipulating the information.'' The South Carolina DOT also commented 
that they have no issue with complying with the rule, but recommended 
that FHWA grant State DOTs the discretion in their reporting to remain 
consistent in what and how they have been communicating the condition 
of their assets. The AASHTO, NYSAMPO, and the State DOTs of California, 
Connecticut, Michigan, and Oklahoma suggested that the Fair condition 
level be defined and added to the list of four required measures. The 
Washington DOT commented that they did not see the need for a Fair 
category, and were in agreement with FHWA's use of Good and Poor.
    The FHWA believes the net increase or decrease of percent Fair 
network condition does not easily indicate improvement or declining 
condition. For example, if there was an increase in percent Fair, it 
could be the result of declined condition of pavement sections that 
were previously rated as Good condition or improved condition of 
pavement sections that were previously rated as Poor condition. 
Therefore, the net increase (or decrease) in percent Fair may not 
adequately portray condition improvement (or decline) for the highway 
network. The FHWA believes that focusing on Good and Poor conditions 
will better indicate improvement or decline of network condition and 
also will better inform the public about pavement conditions and what 
they should expect from investments in highway pavements. Finally, the 
requirement to establish targets for each of the final four measures 
does not prohibit a State DOT or MPO from focusing on maximizing Fair 
conditions. For these reasons, FHWA retains the four measures in the 
final rule.
    A few commenters commented that the approaches to determining Good, 
Fair, and Poor conditions should be consistent for pavements and 
bridges.

[[Page 5926]]

The FHWA proposed approaches that determine pavement condition levels 
based on the predominance of metric condition levels and bridge 
condition levels based on the lowest metric condition level. In the 
NPRM, FHWA discussed how each of these approaches supported current 
practice and the findings of pilot studies \46\ conducted prior to the 
rulemaking effort. Although the methods for determining pavement and 
bridge condition levels are different, the results of the two methods 
discussed in the studies provide sound assessments of the condition 
level of pavements and bridges. Consistency or using a single 
methodology to determine pavement and bridge condition level is 
desirable from a process standpoint. However, having assessments that 
best reflect the condition of pavements and bridges is more desirable. 
It is also important to note that pavements and bridges are two 
distinct types of assets with distinct performance characteristics. 
Therefore, having different methodologies for determining their 
condition levels should not be unexpected. The FHWA retains the two 
methodologies for assessing the condition level of pavements and 
bridges in the final rule.
---------------------------------------------------------------------------

    \46\ Improving FHWA's Ability to Assess Highway Infrastructure 
Health Pilot Study Report FHWA-HIF-12-049 2012.
---------------------------------------------------------------------------

    The TEMPO expressed concerns that the criteria used to identify the 
NHS are still being developed for implementing performance measures 
applicable to the NHS. They commented that if this issue is not 
addressed before reporting and evaluation deadlines are implemented, 
State DOTs and MPOs could expend significant resources collecting, 
analyzing, and maintaining data that is not part of the final NHS. They 
urged FHWA to delay implementation of the new pavement requirements 
until the limits of the NHS are finalized.
    As discussed in combined discussion sections for sections 
490.105(e)(1) and 490.105(f)(1), FHWA cannot delay the due date of the 
State DOT target establishment or the State DOT reporting on 
performance targets because of the statutory deadlines in MAP-21. The 
FHWA also recognizes that NHS limits could change during a performance 
period. Therefore, FHWA revised section 490.105(d)(3) in this final 
rule so that State DOTs are no longer required to declare and describe 
NHS limits in their Baseline Performance Period Report. As a result, 
the changes in NHS limits during a performance period would be 
accounted for. As discussed in section 490.105(d)(3), the National 
Highway System Data Item in HPMS and the Highway System of the 
Inventory Route Data Item in NBI are required to be reported to FHWA 
annually together with the condition metric data. The NHS limits for 
pavement condition measures will come from the same data set submitted 
to HPMS in the same year as the performance condition metric data is 
submitted, and NHS designation for bridge condition measures will come 
from the same NBI data set as the performance condition metric data of 
the same year. (See more details on implementation timeline discussion 
in sections 490.105(e)(1) and 490.105(f)(1) and discussion on NHS 
limits in the discussion for section 490.105(d)(3).)
Discussion of Section 490.309 Data Requirements
    The FHWA proposed four condition metrics to be collected and 
reported to the HPMS to calculate the pavement measures. These metrics 
included IRI, rutting, faulting, and Cracking Percent. Comments on the 
inclusion of these four metrics were primarily focused on the 
consideration of IRI as a required metric. The AASHTO and eight State 
DOTs \47\ commented that, of the four proposed metrics, IRI is the only 
one ready to be measured consistently in all States and therefore 
should be the only measure of pavement condition. Alternatively, they 
suggested that the additional three metrics be phased in over time. In 
contrast, the ACPA, Cemex USA, Connecticut DOT, Georgia DOT, Illinois 
DOT, Louisiana DOT, Ohio DOT, and PCA supported the use of the four 
metrics. Some commenters \48\ suggested that the four metrics not be 
equally weighted in the calculation of the pavement measures. The FHWA 
considered these differing opinions and elected to retain the 
requirement for the collection and reporting of the four metrics. The 
FHWA has found through documented research \49\ that nearly all State 
DOTs currently use more than IRI in their pavement management programs. 
Publications by recognized pavement experts indicate that pavement 
conditions cannot be determined using only IRI alone 
50 51 52 53. However, FHWA recognizes and appreciates that 
the methods to collect and report the rutting, faulting, and Cracking 
Percent metrics may be new to some State DOTs. The Alabama DOT 
suggested that FHWA replace IRI with Mean Roughness Index (MRI) in 
order to avoid confusion. The FHWA agrees with Alabama that MRI is the 
correct measurement and the HPMS Field Manual has been revised to 
clarify this distinction. The term IRI is still used because it is 
familiar to most users even though the actual collection and reporting 
is the MRI value.
---------------------------------------------------------------------------

    \47\ Alaska DOT&PF, Connecticut DOT, Idaho DOT, Montana DOT, 
North Dakota DOT, South Dakota DOT, Washington State DOT, and 
Wyoming DOT, Michigan Asset Management Council, Michigan State 
Transportation Commission.
    \48\ Oregon DOT, Association of Metropolitan Planning 
Organizations, and Illinois DOT.
    \49\ NCHRP Study 401 ``Quality Management of Pavement Condition 
Data Collection 2009.''
    \50\ ``Pavement Management Practices in State Highway 
Agencies'': Newington, Connecticut Peer Exchange Results. 2011: 
http://www.fhwa.dot.gov/asset/pubs/hif11036/hif11036.pdf.
    \51\ ``Pavement Asset Management'', Uhlmeyer, J., Luhr, D., and 
Rydholm, T., Washington State Department of Transportation. 2016: 
https://www.wsdot.wa.gov/NR/rdonlyres/E93CF754-0452-4FDE-92BA-02A7BC4CB98A/0/WSDOTPavementAssetManagement2816.pdf.
    \52\ ``Performance Measures for Pavement Assets under 
Performance Based Contracts'', Alyami, Z., Tighe, S., Gransberg, D., 
9th International Conference on Managing Pavement Assets, 2014: 
https://vtechworks.lib.vt.edu/bitstream/handle/10919/56400/ICMPA9-000173.PDF?sequence=2&isAllowed=y.
    \53\ ``Performance Measures: Pavement Condition 2015'', Kansas 
DOT 2015: https://kdotapp.ksdot.org/perfmeasures/documents/pavement_fact_sheet.pdf.
---------------------------------------------------------------------------

    The FHWA recognizes that the level of pavement data collection for 
the four metrics is more intensive than the HPMS requirements in 
previous years and will require time for State DOTs to adjust contracts 
and equipment to comply. The final rule delays the requirements for 
pavement data collection until January 1, 2018, for Interstate highways 
and until January 1, 2020, for non-Interstate NHS routes. Further, FHWA 
has delayed the implementation of data collection, reporting, and 
target establishment requirements so that the first performance period 
begins in 2018. The phased approach pushes the determination of 
baseline pavement conditions for the first performance period from 2018 
to 2020 (the mid-point of this period). This phased approach to target 
establishment for the pavement measures is presented in the discussion 
for section 490.105(e)(7). The FHWA believes that these actions will 
advance the state of practice to more consistently collect and report 
rutting, faulting, and cracking while allowing for a phased approach to 
full implementation.
    Several commenters,\54\ primarily representing local governments 
and

[[Page 5927]]

planning organizations, objected to the use of IRI as a metric in the 
calculation of the pavement measure. The ACHD, for example, commented 
that collecting data on low speed roads is difficult and generally 
results in poor quality data. As such Ada County suggested dropping IRI 
as a measure for local roads. Similarly, the city of Santa Rosa 
commented that while the California DOT is collecting IRI data on 
California's NHS, it will likely be the responsibility of local 
agencies to collect IRI data in the future. This change could disrupt 
established process for PCI collection and will result in increased 
cost and duplicative data collection efforts. The Alaska DOT&PF 
commented that asphalt cracking has no standard method of collection, 
remarking that two methods, windshield and laser, are not comparable. 
Finally, CEMEX USA and the Portland Cement Association suggested adding 
Remaining Service Interval as a condition metric. The majority of the 
commenters represent cities and counties that utilize the Pavement 
Condition Index (PCI) as their primary method to assess pavement 
conditions. The commenters noted that the PCI method does not include 
IRI nor an assessment of ride quality. Several commenters, primarily 
local agencies in California, commented that applying IRI to local 
roads could lead to ``worst-first'' strategies. Additionally, the ACHD 
commented that using IRI on local roads may mean that cost-effective 
pavement preservation techniques (e.g., chip seals) will no longer be 
useful as they can negatively impact IRI. The commenters expressed a 
number of concerns related to the cost and burden of collecting IRI 
using a high speed profiler testing device; and the lack of correlation 
between PCI and IRI. In addition, many of these commenters suggested 
that local agencies be allowed to use their own methods to classify 
pavements as being in Good, Fair, or Poor condition. The ACHD suggested 
that straight-edge based methods could replace IRI or manual methods on 
local roads. This alternative method would remain accurate and would be 
much more practical. Furthersmore, as discussed later in this section, 
a number of commenters raised concerns with the accuracy of collecting 
IRI in urban environments. Discussions with manufacturers of IRI data 
collection equipment and the comments from the Road Profiler Users 
Group confirmed that this is particularly difficult where posted speed 
limits are less than 40 mph, usually in urban settings. In the final 
rule, an alternative method known as PSR is permitted to determine the 
overall condition of pavement sections only on roadways where posted 
speed limits are less than 40 mph.
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    \54\ City of Fremont, CA, City of Santa Rosa, CA, City of 
Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of 
Marin, CA, Metropolitan Transportation Commission, Oversight 
Committee for the California Local Streets and Roads Needs 
Assessment, Puget Sound Regional Council, Rural counties Task Force, 
California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, 
County of Los Angeles, Oregon DOT, South Dakota DOT, Seattle DOT, 
Orange County Transportation Authority, City of Portland, OR, City 
of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of 
Tiburon, CA, City of Spokane, WA, California Association of 
Counties, South Jersey Transportation Planning Organization, 
Portland Cement Association, American concrete Pavement Association, 
Northwest Pavement Management Association, Fugro Roadware, NCE, 
Brian Domsic, John Harvey, An anonymous commenter, Stephen Mueller 
Consultancy, League of California Cities, and LA DOT.
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    In section 490.309(b) of the NPRM, FHWA proposed the data 
collection requirements for Interstate and non-Interstate NHS pavements 
necessary to calculate the four pavement condition metrics. A wide 
range of comments was received on these proposed data collection 
requirements. This section includes a discussion on the response to the 
comments and the changes resulted in the final. This discussion is 
organized into the following categories of issues raised by commenters:

 Reference to AASHTO protocols
 Collecting data in both directions on Interstate pavements
 Collecting data at an annual frequency for Interstate 
pavements
 Collecting IRI data on lower speed roadways
 Processing data at 0.10 mile intervals
 Requiring full extent data collection on the full NHS for all 
four metrics
 Using structure type to identify and exclude bridges
 Travel lane required for data collection
 Devices for rutting collection
Reference to AASHTO Protocols
    Because the data requirements to calculate pavement performance 
vary somewhat from current data collection practices, the NPRM 
specified defined collection protocols for each of the required data 
elements. The majority of the methods and standards for data collection 
are outlined in the HPMS Field Manual and reference some of the aspects 
of certain AASHTO Standards. These documents are incorporated by 
reference in section 490.111. Several adopted and provisional AASHTO 
Standards were specified in the NPRM with the intention of providing 
guidance and background for measuring data needed to determine 
performance.
    The AASHTO and others \55\ submitted comments about the proposed 
methods for data collection, suggesting that these standards were never 
intended for regulatory purposes. The comments noted distinctions 
between AASHTO Standards and those in the HPMS Field Manual for 
cracking measurement. The commenters also noted that AASHTO Provisional 
Standards PP68-14, PP69-10, and PP70-10 were never intended as 
permanent standards, are subject to change, and inappropriate for use 
in rulemaking.
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    \55\ Colorado DOT, Connecticut DOT, Florida DOT, Georgia DOT, 
Idaho DOT, Illinois DOT, Minnesota DOT, Montana DOT, North Dakota 
DOT, Oregon DOT, Rhode Island DOT, South Dakota DOT, Wyoming DOT, 
Mid-America Regional Council, and Southeastern Pavement Preservation 
Partnership.
---------------------------------------------------------------------------

    The FHWA recognizes that AASHTO Standards were not specifically 
designed for collecting data that is used for pavement performance 
evaluations. However, the 10 AASHTO Standards incorporated by reference 
in section 490.111 contain well-known protocols for data collection, 
equipment requirements, and data compilation that are useful in 
determining pavement performance. It is preferable that State DOTs use 
the appropriate parts of these standards to guide quality data 
collection even when additional calculations are needed to meet the 
requirements for the HPMS Field Manual. For example, AASHTO Standard 
PP68-14 contains excellent methods to collect cracking images in 
asphalt pavements. Additional calculations can easily be done to make 
this value meet the HPMS requirement for area of pavement cracked. 
Guidance on how to make these calculations is included in the HPMS 
Field Manual. The FHWA agrees with AASHTO that including the 
provisional standards PP67-14, PP68-14, PP69-14, and PP70-14 as 
requirements in the rule is inappropriate. The FHWA directs State DOTs 
to refer to the HPMS Field Manual for data collection methods for 
automated data collection of pavement cracking and rutting. However, 
FHWA recognizes the extensive efforts by State DOTs involved in 
developing these provisional standards. The HPMS Field Manual may 
continue to reference them as preferred methods for data collection 
with specific guidance for making calculations from that data to report 
pavement conditions to HPMS.
Collecting Data in Both Directions on Interstate Pavements
    The FHWA proposed in section 490.309(b) for State DOTs to collect 
data in both directions of travel for the full Interstate for all four 
condition metrics to accurately capture the directional differences 
associated with pavement type, age, traffic loading, and roadway 
geometry. Three State DOTs and one planning organization \56\ expressed

[[Page 5928]]

concerns with the burden associated with collecting data in both 
directions. The Maryland State Highway Administration and Missouri DOT 
suggested a revision to the final rule to limit the requirement for 
collection in both directions to only those cases where the highway is 
divided with either a median or a physical barrier. Conversely, two 
State DOTs \57\ commented that they collect data on their Interstate in 
both directions, and in some cases, in all lanes. In addition, it was 
noted by the Oregon DOT that data for the required inventory metrics 
(Through Lanes, Surface Type, and number of lanes) are collected and 
reported in one direction only, which may not represent information in 
the non-inventory direction correctly. In the NPRM, an HPMS review 
indicated that 52 percent of State DOTs do not report data in both 
directions on the Interstate. The comments received on this requirement 
support that finding.
---------------------------------------------------------------------------

    \56\ Georgia DOT, Missouri DOT, Oregon DOT, Atlanta Regional 
Commission.
    \57\ Tennessee DOT, New Hampshire DOT.
---------------------------------------------------------------------------

    Contrary to the comments opposing data collection on both 
directions of Interstate System, the joint letter from the Maine, New 
Hampshire, and Vermont DOTs supported the pavement condition data 
requirements on ``both barrels of dual-carriageways.'' The letter 
stated that the New Hampshire DOT has been measuring pavement condition 
and other measurements on each carriageway for all of their Interstate 
System for ``several years and it has taken significant effort to 
combine the data for FHWA purposes.'' They noted that requiring data 
for ``both barrels'' of divided Interstate System would relieve them 
from additional post-processing and create a more comprehensive picture 
of the statewide pavement condition in their State. They also 
recommended FHWA to consider the dual-carriage data format to support 
FMIS, which intends to use HPMS data as its source.
    In a recent study for FHWA,\58\ pavement conditions were measured 
in both directions on a significant number of miles of Interstate 
highways. The findings indicated that the difference in pavement 
conditions between the two directions was insignificant. This supports 
the claims made in the comments indicating that data collection in both 
directions on Interstate highways is not warranted. However, FHWA also 
recognizes that agencies, like New Hampshire DOT, collect their data in 
a dual-carriageway data format for a more comprehensive assessment of 
the statewide pavement condition and for better integrating with FMIS. 
Therefore, section 490.309(b)(1) in the final rule was amended to 
require pavement data reporting for ``at least one direction'' for the 
Interstate System, and section 490.309(b)(1)(iii) in the final rule 
provides State DOTs the option to collect and report pavement condition 
data separately for each direction of divided highways (carriageway) on 
the Interstate System. Please note if a State DOT chooses to exercise 
the option of reporting Interstate pavement data in dual-carriage data 
format, then that State DOT must report the data for the entire 
Interstate System within the State (i.e., no partial network dual-
carriage option allowed). As stated previously, FHWA provides this 
option for State DOTs for a more comprehensive assessment of their 
statewide pavement condition and for better integrating with FMIS. The 
FHWA expects State DOTs to not convert data format only to meet the 
minimum Interstate pavement condition level and/or to make significant 
progress. Considering a substantial amount of effort required to covert 
data format (i.e., single/inventory direction to dual carriage or vice 
versa) in accordance with HPMS Field Manual, FHWA does not believe 
State DOTs will convert the data format just to meet the minimum 
Interstate pavement condition level and/or to make significant 
progress. Therefore, FHWA does not specify an allowable frequency of 
changes in data format in the final rule so that State DOTs have the 
flexibility of converting their Interstate data format at any time. The 
FHWA recommends that State DOTs should carefully examine the effects of 
data format conversion on condition/performance trends and on the 
ability to meet the minimum Interstate pavement condition level and 
significant progress toward achieving targets. Also, it is important to 
note that if a State DOT decides to report Interstate System data in a 
dual-carriageway data format, then the Interstate pavement metrics in 
section 490.311 will be determined separately for each direction (i.e., 
inventory and non-inventory directions) and the Interstate pavement 
measures in section 490.313 will be computed using the data from both 
directions of the Interstate highways. Please refer to the HPMS Field 
Manual in the docket for data requirements associated with dual-
carriageway data format for Interstate System.
---------------------------------------------------------------------------

    \58\ Evaluation of Pavement Conditions on the Interstate System: 
Preliminary Summary, Rada 2015.
---------------------------------------------------------------------------

Collecting Data on an Annual Frequency for Interstate Pavements
    The FHWA proposed to maintain the current HPMS requirement to 
collect data annually for the IRI metric and an increased frequency of 
annual (from biennial collection) collection for the Cracking Percent, 
rutting, and faulting metrics for the Interstate System. A total of 23 
comments \59\ addressed the proposed annual data collection 
requirements. The majority of these commenters expressed concern with 
the costs and burden associated with annual data collection and 
questioned the need to capture annual changes in pavement condition. 
The Oregon DOT noted that an evaluation of their annual collection 
efforts after 7 years of testing concluded that ``it was not necessary 
or cost effective to collect data annually,'' citing that the overall 
condition does not change dramatically from year to year. The Michigan 
State Transportation Commission and Michigan Asset Management Council 
opposed the annual data collection requirement and recommended that 
FHWA work in cooperation with States to determine the most appropriate 
frequency and level of detail for data collection. In general, the 
commenters did not feel it was necessary to capture annual changes in 
condition.
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    \59\ AASHTO, California DOT, Connecticut DOT, Delaware DOT, 
Hawaii DOT, Idaho DOT, Iowa DOT, Maryland DOT, Michigan DOT, 
Minnesota DOT, Montana DOT, North Carolina DOT, North Dakota DOT, 
Oregon DOT, Pennsylvania DOT, Rhode Island DOT, South Dakota DOT, 
Northeast Pavement Preservation Partnership, Southeastern Pavement, 
Preservation Partnership, NYSAMPO, SJTPO, Michigan State 
Transportation Commission (STC) and Michigan's Transportation Asset 
Management Council (TAMC).
---------------------------------------------------------------------------

    The Rhode Island, Pennsylvania, and Minnesota DOTs commented that 
they collect data on their Interstate System on an annual basis. The 
Rhode Island DOT commented that their data coverage and frequency were 
the result of a recommendation by the National Center for Pavement 
Preservation to account for the rapid deterioration that pavements in 
Rhode Island can exhibit from year to year due to the weather 
conditions. Fugro Roadware supported the proposed data coverage and 
data collection frequency. Fugro Roadware emphasized the importance of 
identifying many of the potential problems early and clearly so that 
State DOTs and other agencies can ensure that they are optimizing the 
work performed on the network to limit deterioration and potential need 
for more advanced and expensive treatments.
    The FHWA believes that the minimum Interstate pavement condition 
requirements in 23 U.S.C. 119(f) require annual assessments of 
condition. The FHWA recognizes that, for a specific pavement, 
conditions may not change

[[Page 5929]]

dramatically each year. However, FHWA believes that changes in 
conditions of the full-extent Interstate System within a State will be 
evident from year to year due to construction activities, weather 
events, and variability in the durability of the highway pavements. 
State DOTs have been reporting IRI for the Interstate highways to HPMS 
on an annual basis since 1989. A review of the HPMS data from 2007 to 
2011 showed that 29 State DOTs reported at least a 1 percent change in 
the IRI for their Interstate pavements in Good condition. During the 
same period, 10 State DOTs reported at least a 10 percent change in 
annual Good pavement condition levels.
    Although the new pavement measure includes multiple condition 
metrics, FHWA believes this account of historical changes in IRI 
condition suggest that similar changes should be expected for the new 
pavement measure. Furthermore, FHWA believes that the 0.1 percent 
reporting accuracy required of the new pavement measure necessitates at 
least an annual frequency of testing in order to accurately determine 
State DOT compliance with the minimum condition requirements in 23 
U.S.C. 119(f).
    As discussed in the Executive Summary, the FAST Act removed the 
phrase ``two consecutive reports'' in 23 U.S.C. 119(f)(1)(A), which 
relates to triggering the penalty for when the Interstate pavement 
condition has fallen below the minimum condition level established 
under this rule. Under the FAST Act the penalty will be based on each 
FHWA minimum condition level determination instead of two consecutive 
minimum condition level determinations. The FHWA believes that the 
changes due to FAST Act further support the importance of the annual 
data collection for implementing the statutory requirements under 23 
U.S.C. 119(f)(1).
    For these reasons, FHWA retains the requirement of annual data 
collection for all four condition metrics for the Interstate pavements 
in the final rule.
Collecting IRI Data on Lower Speed Highways
    The FHWA proposed that IRI data be collected on all NHS roadways. 
As previously discussed, a number of commenters \60\ noted the 
challenges with collecting IRI data on roadways in urban settings and 
lower speed roadways. Although IRI is a well-known measure for pavement 
performance, it is less detectable to highway users at low speeds and 
less useful as a measure of pavement performance. To specifically 
address this issue, FHWA added an alternative method known as PSR \61\ 
that may be used to determine overall pavement condition for Interstate 
and non-Interstate NHS sections where the posted speed limit is less 
than 40 mph (sections 490.309(b)(1)(iv) and 490.309(b)(2)(iii)). The 
intent of this change is to allow continued use of a method that has 
been a part of HPMS for many years to provide pavement condition 
information for locations where IRI data collection is not practical. 
In addition, section 490.309(b)(2)(iii) provides that State DOTs may 
use conversions to PSR from other pavement condition assessment 
methods, such as the U.S. Army Corps of Engineers PCI,\62\ if they 
demonstrate to FHWA that the conversion produces pavement conditions 
equivalent to the PSR method.\63\ (See discussion section for section 
490.313(b) for the thresholds to define Good, Fair, and Poor condition 
levels based on PSR.)
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    \60\ Ada County Highway District (ACHD), John Harvey, CEMEX USA, 
City of Vacaville, CA, Portland Cement Association, Metropolitan 
Transportation Commission, Oregon DOT.
    \61\ Carey and Irick, Highway Research Bulletin (1960).
    \62\ ASTM Standard D6433.
    \63\ An example in publication: Al-Omari and Darter, ULUI-ENG-
92-2013 (1992).
---------------------------------------------------------------------------

Processing Data at 0.10 Mile Intervals
    The FHWA proposed in sections 490.309(b) and 490.311(c) that data 
be collected and reported at 0.10 mile intervals for the four pavement 
metrics for the full NHS to provide better uniformity and increased 
accuracy in condition assessment. The majority of commenters, including 
18 State DOTs,\64\ 3 industry associations,\65\ 2 planning 
organizations,\66\ ACHD and AASHTO opposed or expressed concerns with 
the proposed requirement. In general, the commenters noted that the 
uniform 0.1 mile reporting requirement did not align with their current 
State DOT pavement measuring and reporting practices. The commenters 
cited the costs to conform to this requirement and urged FHWA to 
consider an approach that would provide greater flexibility to State 
DOTs to allow for varying reporting lengths. The reporting of the 
inventory data elements in section 490.311(c) of the NPRM generated 
some questions. Fugro Roadware recommended that sections shorter than 
0.1 mile be considered for other significant changes in the pavement 
inventory, such as change in pavement surface type and change in route 
identification (i.e., where reference posts reset at county lines and 
overlapping highways start and end). The Georgia DOT urged FHWA to 
define the method for calculating cracking, rutting, and faulting, 
including differentiation of surface types. The Kentucky Transportation 
Cabinet requested clarification on how sections should be broken down 
when there are discontinuities in the route or surface type within a 
section. Considering these comments, FHWA revised sections 490.309(a) 
and 490.311(c)(2) to clarify that State DOTs are required to report all 
relevant \67\ condition metrics for each pavement section. This means 
that each pavement section and all relevant condition metrics must be 
spatially coincident (i.e., identical Route_ID, Begin_Point, and 
End_Point values in HPMS). Recognizing that inventory data items do not 
perfectly align (or are not spatially coincident) with the pavement 
sections, FHWA revised section 490.311(c) and added section 490.311(d) 
in the final rule to clarify that State DOTs are required to report the 
three inventory data items (Through Lanes, Surface Type, and Structure 
Type) using the protocols in the HPMS Field Manual. In contrast to the 
section lengths for the measured pavement metrics, the section length 
for each of the inventory data items is not restricted to the 0.1 mile 
length. Instead, it reflects logical start and end points. These 
inventory data items will be tied to measured pavement conditions 
reported in the metrics using each State DOT's linear referencing 
system, as described in chapter 4 of the HPMS Field Manual.
---------------------------------------------------------------------------

    \64\ Georgia DOT, New York State DOT, North Carolina DOT, North 
Dakota DOT, Pennsylvania DOT, South Dakota DOT, Wyoming DOT, Idaho 
DOT, Minnesota DOT, Mississippi DOT, South Carolina DOT, Texas DOT, 
Colorado DOT, Illinois DOT, Iowa DOT, Alabama DOT, Connecticut DOT, 
and Montana DOT.
    \65\ Road Profiler User's Group, NCE, Agile Asset Inc., and 
Northeast Pavement Partnership.
    \66\ Texas Association of Metropolitan Planning Organizations 
and Association of Metropolitan Planning Organizations, Michigan 
State Transportation Commission, Michigan Asset Management Council.
    \67\ For asphalt pavement sections (Surface_Type is 2,6,7, or 
8), relevant condition metrics are IRI, rutting, and 
Cracking_Percent; for jointed concrete pavement sections 
(Surface_Type is 3,4,9, or 10), relevant condition metrics are IRI, 
faulting, and Cracking_Percent; and for Continuously Reinforced 
Concrete Pavements (CRCP) sections (Surface_Type is 5), relevant 
condition metrics are IRI and Cracking_Percent.
---------------------------------------------------------------------------

    Nine State DOTs \68\ the Northeast Ohio Areawide Coordinating 
Agency and the Southeast Pavement Preservation Partnership provided 
comments expressing support for 0.1-mile intervals and noted that they 
collect and report data at 0.10 mile intervals and did not

[[Page 5930]]

see an undue burden with this proposed requirement. However, many of 
these State DOTs asked for more clarification on how they should 
address breaks in the system that would prevent collection at 0.10 mile 
lengths.
---------------------------------------------------------------------------

    \68\ Hawaii DOT, Kentucky DOT, Maryland DOT, Oklahoma DOT, 
Oregon DOT, Missouri DOT, New Jersey DOT, Tennessee DOT and 
Washington State DOT.
---------------------------------------------------------------------------

    The NPRM contained substantial discussion about the importance of 
the 0.10 mile length data collection and reporting lengths in providing 
uniformity and increased accuracy in pavement condition assessment. The 
RIA prepared for the NPRM considered the increased costs of data 
collection and processing to comply with the requirements. Some State 
DOTs currently collect and report pavement condition at 0.10 mile 
intervals to the HPMS. An evaluation of the network level condition 
outcomes in these State DOTs using 0.20 mile section lengths indicated 
a minor difference in the percentage of Good condition pavements but a 
considerable difference in percentage of Poor condition pavements 
compared to the 0.10 mile length.
    In the final rule, the 0.10 mile uniform pavement section data 
collection and reporting is retained because it is needed for a 
consistency in national performance reporting. Current data collection 
and processing technologies can easily accommodate it, and it is 
already an accepted practice in several State DOTs. Furthermore, this 
requirement does not impose restrictions on State DOT management 
programs. State DOTs can and should operate pavement management 
programs as they see fit.
    Related to the section lengths, the commenters asked for more 
clarification on how State DOTs should address breaks in the system 
where collection at 0.10 mile lengths is not practical. These breaks 
occur due to uneven lengths in highway routes, interruptions to 
measurements by intersections, change in surface type, bridges, and 
similar locations where uniform 0.1 mile lengths are not possible. In 
the NPRM, allowance was made to report conditions for smaller pavement 
sections if needed, but that none should exceed 0.1 mile in length. It 
was noted in the comments and confirmed by examination of existing HPMS 
data that field measurements do not always align exactly with official 
State route maps. These deviations relate to the accuracy of global 
positioning devices and other field conditions that can result in 
sections slightly exceeding 0.1 mile lengths but always within a 
tolerance of approximately 50 feet. In the final rule, the intent is 
that State DOTs will report in 0.1 mile sections wherever possible, but 
are provided an allowance for lengths up to 0.11 mile (580.8 feet) to 
accommodate the alignment issue. Therefore, FHWA revised sections 
490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 490.309(b)(2)(ii)(C) and 
added sections 490.309(b)(1)(iv)(C) and 490.309(b)(2)(iii)(C). These 
changes were made so that shorter than 0.10 mile pavement sections are 
permitted at the beginning of a route, end of a route, bridges, 
locations where surface type changes, or other locations where a 
section length of 0.10 mile is not achievable and specified that the 
maximum length of sections shall not exceed 0.11 mile (580.8 feet). 
Please note that as discussed in sections 490.309(a) and 490.311(c)(2), 
State DOTs are required to report spatially coincident (i.e., identical 
Route_ID, Begin_Point and End_Point values in HPMS) sections for all 
relevant \69\ condition metrics to HPMS.
---------------------------------------------------------------------------

    \69\ For asphalt pavement sections (Surface_Type is 2,6,7, or 
8), relevant condition metrics are IRI, rutting, and 
Cracking_Percent; for jointed concrete pavement sections 
(Surface_Type is 3,4,9, or 10), relevant condition metrics are IRI, 
faulting, and Cracking_Percent; and for Continuously Reinforced 
Concrete Pavements (CRCP) sections (Surface_Type is 5), relevant 
condition metrics are IRI and Cracking_Percent.
---------------------------------------------------------------------------

    As stated above, the sections of condition metrics (i.e., IRI, 
rutting, faulting, Cracking_Percent, and PSR) are 0.10-mile long 
sections (shorter than 0.10 mile sections are permitted at the 
situation specified above) and not exceeding 0.11 mile, and all 
relevant condition metrics must be spatially coincident for each 
section. On the other hand, as discussed above, the section lengths of 
inventory data items (Through Lanes, Surface Type, and Structure Type) 
shall be in accordance with the protocols in the HPMS Field Manual so 
those data items do not necessarily spatially align with the condition 
metrics sections. However, in order to calculate measures (described in 
section 490.313) and to determine missing, invalid, or unresolved data 
(described in 490.313(b)(4)(i)), the data items (i.e., inventory data 
items, and other related data items) which do not spatially align with 
condition metrics are required. So, for the purpose of calculating 
measures and determining missing, invalid, or unresolved data, 
condition metric data will be dynamically segmented with all three 
inventory data items (Through Lanes, Surface Type, and Structure Type), 
functional class data item (Data Item F_System in HPMS) and NHS data 
item (Data Item NHS in HPMS). To provide clarification on how sections 
should be broken down when there are discontinuities in the route in 
responding to the comment from Kentucky Transportation Cabinet, FHWA 
differentiates between condition metric sections and dynamically 
segmented condition metric sections by adding a definition for 
condition metric sections in section 490.305. The FHWA defines a 
``Pavement Section'' as a nominally 0.1 mile-long reported segment that 
defines the limits of pavement condition metrics required by FHWA. The 
revised sections 490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 
490.309(b)(2)(ii)(C) and added sections 490.309(b)(1)(iv)(C) and 
490.309(b)(2)(iii)(C) used the term ``pavement section.''
Requiring Full Extent Data Collection on the Full NHS for the Four 
Condition Metrics
    The FHWA proposed that the data for all four condition metrics be 
collected on the full extent of the Interstate and non-Interstate NHS. 
This proposal introduced and increased the data collection burden for 
cracking, rutting, and faulting. Comments provided by AASHTO, ARC, the 
National Asphalt Pavement Association, and the State DOTs of 
Connecticut, Florida, Georgia, Kentucky, Minnesota, Mississippi, 
Missouri, and Oregon noted that the requirement for full extent data 
coverage is ``unnecessary and excessive.'' They also commented that the 
full extent data provides only marginally better insight into the 
system condition with significant financial consequences for State 
DOTs. Alabama DOT commented that sampling should be permitted on off-
system routes, even if the end goal is to eliminate sampling on-system. 
The Mississippi DOT commented that the cost associated with the 
proposed requirement is not just in the data collection, but also 
includes review, analysis, maintenance, and reporting of the data. 
These requirements create additional burdens to the personnel resources 
of State DOTs. The Illinois DOT commented that automated crack mapping 
is still an emerging technology, and it is possible for there to be 
some inconsistencies in the way that States collect and report this 
data. They added that manual distress surveys of the entire NHS system 
are not a viable option.
    The AASHTO and State DOTs of Connecticut, Georgia, Idaho, 
Minnesota, Montana, North Dakota, South Dakota, and Wyoming recommended 
allowing State DOTs to report metric data on samples in lieu of full 
extent. The AASHTO and Connecticut and Minnesota DOTs argued that 
sampling is a more cost effective approach than measuring the full 
extent. The Oregon

[[Page 5931]]

DOT commented that the full extent requirement is somewhat 
``understandable'' for the Interstate System because there is a minimum 
pavement condition standard applied nationwide with significant 
financial consequences. Therefore, full extent measurement ``makes 
sense'' to ensure the most accurate data. However, the Oregon DOT 
recommended a sampling approach for the non-Interstate NHS because the 
system is not subjected to financial consequences. The Oregon DOT also 
stated that a sampling approach could also help avoid the inherent data 
errors associated with full extent IRI data where the data collection 
vehicle must stop at traffic lights. The Rhode Island DOT commented 
that State DOTs typically manage and maintain each direction of the 
Interstate System as separate roadways, but only report one direction 
to the HPMS. The Pennsylvania DOT commented that they collect data in 
both directions on divided non-Interstate NHS roads and requested 
clarification from FHWA on if they will only need to report one 
direction in the future. In addition, the commenter requested 
clarification on the frequency with which they need to report the data, 
since it is collected every year.
    As discussed in the NPRM, reporting the full extent measurement for 
the whole NHS is important to determining pavement performance.\70\ The 
final rule retains the language in section 490.309(b)(1) that requires 
State DOTs to collect and report IRI, rutting (asphalt pavements), 
faulting (jointed concrete pavements), and Cracking Percent annually 
for the full extent of the mainline highway Interstate System and 
collect data biennially and report data annually for the full extent of 
the non-Interstate NHS. As discussed in sections 490.109(d)(1) through 
(d)(3), State DOTs are required to collect non-Interstate NHS data 
every two years but State DOTs are required to report data for the 
entire non-Interstate NHS network to HPMS every year, hence, replacing 
the reported data from previous data collection cycle with the most 
recent data collected in HPMS. In response to Pennsylvania DOT's 
question on the non-Interstate NHS, FHWA retains the language, as 
proposed in the NPRM, that only one direction (i.e., inventory 
direction) data collection and reporting for non-Interstate NHS is 
required for the pavement metrics and inventory data (sections 
490.309(b)(2)(i)(D), 490.309(b)(2)(ii)(D), 490.309(b)(2)(iii)(D) and 
490.309(c)(1)(ii)). Please note that the non-Interstate NHS pavement 
measures in section 490.313 will be computed using only the data 
referenced to the inventory direction of the non-Interstate NHS 
highways in HPMS. If a State DOT chooses to collect pavement data for 
the non-Interstate NHS on an annual basis, that State DOT will still 
meet the requirements in section 490.309(b)(2). In this case, the 
actual 2-year condition/performance (midpoint of a performance period) 
will be derived from the collected pavement data for the entire non-
Interstate NHS in the second year of a performance period, and the 
actual 4-year condition/performance (end of a performance period) will 
be derived from the collected pavement data for the entire non-
Interstate NHS in the fourth year of a performance period.
---------------------------------------------------------------------------

    \70\ FHWA (2012). Improving FHWA's Ability to Assess Highway 
Infrastructure Health Pilot Study Report, FHWA-HIF-12-049. http://www.fhwa.dot.gov/asset/pubs/hif12049/hif12049.pdf.
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    In response to comments suggesting use of a sampling approach, a 
recent statistical study \71\ found that, even under controlled 
conditions, the variability of pavement data was substantial. A 
sampling program would require sample sizes approaching full data 
collection to provide a reasonable level of confidence in the results. 
It is not practical to implement this kind of a sampling program.
---------------------------------------------------------------------------

    \71\ Evaluation of Pavement Conditions on the Interstate System: 
Preliminary Summary, Rada 2015.
---------------------------------------------------------------------------

Using Structure Type To Identify and Exclude Bridges
    In section 490.313(f)(1) of the NPRM, FHWA proposed that bridges 
would be excluded prior to computing all pavement condition measures by 
removing the sections where the Structure Type field value is coded as 
``1'' in the HPMS. This was done to meet the statutory requirement (23 
U.S.C. 119(f)(1)(A)) that pavement analyses must be done ``excluding 
bridges.''
    The AASHTO, Fugro Roadware, and the State DOTs of Alabama, 
Colorado, Connecticut, Georgia, New Jersey, Oregon, and Texas requested 
clarification on how the bridge limits would be removed from the 0.10 
mile interval continuous pavement performance data, particularly where 
the bridge limits do not spatially coincide with the 0.10 mile pavement 
sections. Fugro Roadware recommended that areas with bridge structures 
simply be invalidated and identified as a bridge. The AASHTO and 
Connecticut and New York DOTs recommended flexibility for State DOTs to 
use segments other than 0.10 mile at the bridges. Oregon DOT commented 
that they prefer not to include IRI data for the structures, but State 
DOTs have been required for several years to report IRI metric data for 
bridges under the current HPMS reporting requirements. Oregon DOT added 
that this redundant effort to provide pavement condition data on 
structures that is not being used by FHWA is inefficient. This creates 
concern because of the current environment where staff and money are 
scarce. The AASHTO and Illinois and Montana DOTs commented that there 
is a discrepancy between pavement data reporting requirements in the 
current HPMS and the proposed measure calculation process for handling 
pavement data on bridges. The Hawaii DOT commented that pavements on 
viaduct structures should be excluded from the pavement condition 
performance measures. The FHWA concurs since viaduct structures meet 
the definition for bridges and are excluded in the legislation.
    The New Hampshire DOT commented that the Federal definition of 
bridges requires structures to be greater than 20 feet long. However, 
in New Hampshire there are several shorter bridges that often impact 
roughness just as larger structures do because many of them contain 
expansion joints or cause transverse cracking through expansion.
    The FHWA has evaluated the comments regarding the methodology for 
excluding bridges for pavement condition measure calculation. The FHWA 
clarified several of the issues related to bridges on the NHS in the 
final rule.
    First, in response to the comment from New Hampshire DOT, the term 
``bridge'' used throughout subparts C and D is consistent with the 
definition proposed in section 490.405 of the NPRM. The FHWA agrees 
with New Hampshire DOT that structures less than 20 feet long could 
impact the condition of pavement sections. As discussed in the NPRM, 
FHWA recognizes that State DOTs may have different definitions for 
bridge. However, FHWA believes that these discrepancies would cause 
problems in calculating pavement measure consistently at the national 
level by excluding additional structures. The FHWA believes that the 
use of an established definition would continue to provide consistent 
and standardized data to be analyzed for the evaluation of State DOT 
and national progress. Therefore, FHWA moved the definition for the 
term ``bridge'' in subpart D (section 490.405) to subpart A (section 
490.101) to use it in a consistent manner

[[Page 5932]]

throughout the rule. As discussed in section 490.405, FHWA did not 
receive any substantive comments on the definition. The FHWA made an 
editorial revision to the definition in section 490.101 by striking the 
phrase ``this section'' and replacing it with the phrase ``this part'' 
to ensure that the definition in subpart A applies to both subparts C 
and D in the final rule.
    The FHWA also clarifies that excluding bridges means that bridge 
limits will be determined by the coded values ``Route_ID,'' 
``Begin_Point,'' and ``End_Point'' for the Structure Type Data Item in 
HPMS where the value is coded ``1.'' Those determined bridge limits 
will not be used for calculating pavement performance measures.
    The FHWA agrees with the comments and recommendations from AASHTO 
and Connecticut and New York DOTs to provide flexibility for State DOTs 
to use segments other than 0.10 mile at the bridges. Therefore, FHWA 
revised sections 490.309(b)(1)(i)(C), 490.309(b)(2)(i)(C), 
490.309(b)(2)(ii)(C), and 490.309(b)(ii)(C) and added sections 
490.309(b)(1)(iv)(C) and 490.309(b)(2)(iii)(C) so that shorter than 
0.10 mile pavement sections are permitted at bridges. The FHWA also 
provided flexibility for State DOTs in reporting pavement sections by 
either: (1) Reporting uniform section lengths of 0.10 mile regardless 
of presence of bridges (Figure 3); or (2) reporting shorter than 0.10 
mile pavement sections adjacent to bridges (Figure 4). The method of 
excluding the bridges for both options will be the same for both 
pavement section reporting options. The FHWA notes that if the first 
option is chosen, the reported IRI, rutting, faulting, and Cracking 
Percent metric values for a 0.10 mile pavement section will be 
influenced by the surface condition of the bridge deck. State DOTs 
should carefully examine the impact of bridge surface condition on the 
pavement condition measures when choosing the options on reporting 
pavement sections at (or adjacent to) bridges.
    The FHWA cautions State DOTs in changing the way they report 
pavement sections at (or adjacent to) bridges between the time of 
target establishment and the time of progress evaluation. Such changes 
may alter the measures reported, which could then impact how an 
established target relates to actual measured performance. This 
difference could impact a State DOT's ability to make significant 
progress toward achieving targets. Therefore, FHWA recommends that 
reporting of pavement section pavement sections at (or adjacent to) 
bridges is consistent between the HPMS data reporting cycles so that 
evaluating progress toward achieving target is consistent.
    Finally, unlike the NHS limits and urbanized area boundary, FHWA 
did not propose that constant bridge limits would be used for excluding 
bridges throughout performance period. The FHWA did not add language in 
the final rule specifying constant bridge limits to be used for 
excluding bridges throughout performance period. However, FHWA expects 
State DOTs to take necessary actions so that changes (both the number 
and the limits) in reported Structure Type Data Item in HPMS will be 
minimal between the data reporting cycles and have minimal impact on 
changes in pavement condition. In the discussion section for section 
490.105(d)(3), ARC commented that changes to the NHS network are likely 
to be ``infrequent and minimal'' in impact when compared to the overall 
network extent. The FHWA expects the majority of changes in reported 
Structure Type Data Item in HPMS between data reporting cycles will be 
due to changes in NHS limits. For example, if a State DOT reports 
Structure Type Data Item in HPMS for only a small fraction of their 
bridges at the time of target establishment but reports for all bridges 
in subsequent years, the progress evaluation of targets for pavement 
condition measures will not be done in a consistent manner. The FHWA 
encourages State DOTs to take necessary actions to better integrate 
data between NBI and HPMS prior to establishing performance targets to 
minimize the impact of changes in HPMS between reporting cycles.

[[Page 5933]]

[GRAPHIC] [TIFF OMITTED] TR18JA17.017


[[Page 5934]]


[GRAPHIC] [TIFF OMITTED] TR18JA17.018

Travel Lane Required for Data Collection
    In the NPRM, FHWA proposed that data be collected for all four 
condition metrics in the rightmost travel lane, or one consistent lane 
if the rightmost travel lane is not accessible. The AMPO stated that a 
lane-mile requirement could become prohibitively expensive. This 
commenter suggested a compromise similar to the Interstate requirement 
where data is collected in each direction for highways divided by a 
physical median. Similarly, the commenter said data for frontage roads, 
which serve NHS facilities, should be collected as well and be reported 
separately. The AASHTO and the Connecticut and Wisconsin DOTs commented 
that the rightmost lane may not be the most effective for data 
collection. They agreed that a consistent lane should be used, but 
preferred that State DOTs make the decision on the lane for data 
collection. The commenters expressed concerns with using the rightmost 
lane in mountainous areas. They argued that these lanes are often 
dedicated to truck travel and not representative of the other lanes on 
the roadway. They also expressed concern with the challenges of 
collecting data in urban settings where the rightmost lane is often 
more congested than other lanes. The Tennessee DOT commented that they 
currently test the rightmost lane and supported the proposed 
requirement.
    The FHWA considered these points and acknowledges that pavement 
conditions measured in dedicated truck lanes and congested lanes may 
not be representative of the overall condition of pavements in all 
lanes. The FHWA amended section 490.309(b) to allow other lanes to be 
used if the rightmost lane carries traffic that is not representative 
of the remainder of the lanes or is not readily accessible due to 
closure, excessive congestion, or other events impacting access.
Devices for Rutting Collection
    The Florida and Oregon DOTs commented that the proposed process for 
data collection allows for rutting measurements using either a device 
that determines rutting from 5 points across the lane, or a device that 
determines rutting from 1,000 points or more across the lane. They 
argued that there is a large difference between the two methods. Fugro 
Roadware commented that AASHTO R48-10 is not a reliable solution and 
should be removed as an option for pavement condition reporting. A 
review of AASHTO Standards R48-10 and PP-70 suggests that differences 
in precision exist. While the automated transverse profiling devices 
are the preferred method for measuring rutting, FHWA realizes that the 
devices are not yet universally adopted by State DOTs and that a 
significant number of State DOTs use the 5-point devices in their 
pavement programs. The NPRM provided for use of either device. No 
changes are made in the final rule.
Discussion of Section 490.311 Calculation of Pavement Metrics
    The FHWA proposed the methodology to be used by State DOTs to 
calculate the IRI, cracking, rutting, and faulting metrics and the 
requirements to report these metrics and the three inventory data 
elements to the HPMS. The condition metrics are used, as defined in 
section 490.313, to classify pavements as being in Good, Fair, or Poor 
condition. These methods and metrics were derived primarily from

[[Page 5935]]

published standards \72\ used in pavement design and adopted by a 
majority of State DOTs.
---------------------------------------------------------------------------

    \72\ Mechanistic-Empirical Pavement Design Guide, A Manual of 
Practice, August 2015, 2nd Edition. American Association of State 
Highway and Transportation Officials, Washington, DC. Table 7.1
---------------------------------------------------------------------------

    A number of commenters suggested additional or alternative metrics 
to be collected and identified challenges with the use of IRI in some 
local jurisdictions. The FHWA included discussion on these comments and 
the changes to the final rule in the previous sections of this 
rulemaking.
    In the NPRM, FHWA proposed a requirement in section 490.311(b)(1) 
for State DOTs to determine the IRI metric for all NHS sections. As 
discussed in the previous section, a number of comments raised concerns 
with the collection of IRI in urban settings and on lower speed 
roadways. The FHWA used these comments to adjust the requirement of 
data collection to allow for an alternative method (PSR) to assess 
pavement condition on roadways where the posted speed limit is less 
than 40 mph. The PSR is to be determined using the method prescribed in 
the HPMS Field Manual, which is a visual overall assessment of pavement 
condition. The new provision also allows for State DOTs to utilize an 
alternative assessment method to estimate the PSR using a correlation 
that is approved by FHWA.
    In section 490.311(b)(2)(i), FHWA proposed the method to calculate 
the amount of cracking in each asphalt pavement section. Many 
commenters noted inconsistencies with the proposed regulations and the 
HPMS Field Manual, the types of cracks to be included in the metric, 
and the consideration of cracks that have been sealed. In addition, 
several commenters noted concerns with the use of provisional AASHTO 
Standards that have been removed, as discussed previously for section 
409.309 (under ``Reference to AASHTO Protocols''). Fugro Roadware and 
the Ada County Highway District recommended the HPMS Field Manual 
metric of percent area of fatigue cracking for use on asphalt roads. 
The NCE commented that Cracking Percent may be overly simplistic for 
use in pavement management. The commenter states that Cracking Percent 
is a much simpler measure than PCI and adopting it in the rule as 
opposed to PCI ``would be a step backwards.'' The commenter also 
remarked that Cracking Percent is not widely used by either local 
agencies or States. In addition, the commenter expressed concerns with 
the proposed thresholds for pavement measures, stating that they are 
inappropriate for local roads.
    Some comments sought clarification on the location of cracks to be 
included in the metric or how the area of cracked pavement is to be 
calculated. The language in the HPMS Field Manual has been changed to 
more clearly state that the location of cracks to be included shall be 
limited to the wheel paths only. The Louisiana DOT suggested that a 
wheel path be defined as 3 feet wide to eliminate metric conversion 
errors. The HPMS Field Manual further clarifies the width and location 
of each wheel path is in English units. In addition, commenters asked 
for clarification on the types of cracks to be included in the metric. 
Suggestions were provided to consider the severity of the crack and to 
limit the metric to only fatigue related cracking. Stephen Mueller 
Consultancy suggested that the severity level of cracking (high, 
medium, or low) be added to the HPMS ``Cracking Percent'' reporting 
requirement to be used as one of the pavement condition rating 
thresholds in the regulation. In addition, the Maine Turnpike Authority 
commented that severity of cracking will be crucial for making a fair 
assessment of a road's performance.
    The intent of the metric is to only include load associated 
cracking in the wheel path. The HPMS Field Manual has been revised to 
clearly state that only fatigue (interconnected cracks) will be 
included in the metric. The FHWA believes that, for the purpose of the 
pavement measure being established through this rulemaking, an overall 
assessment of cracking is adequate to monitor system-wide performance. 
Consequently, FHWA does not feel that the cracking metric needs to 
consider the severity of the crack or cracking that is not related to 
pavement fatigue. The FHWA believes that the majority of fatigue 
generated cracking is in the wheel paths for asphalt pavements and 
therefore should be considered in the metric. The HPMS Field Manual has 
been revised to provide a clarification and guidance in reporting 
fatigue cracks, regardless of severity, in the metric.
    Several commenters asked for clarification on the inclusion of 
sealed cracks in the cracking metric specifically related to asphalt 
pavements. The NEPPP noted that sealed cracks are often rated more 
severe using automated methods. The FP\2\ corporation commented that 
crack sealing is an effective pavement preservation technique and 
should not be considered equal to an unsealed crack. The Rhode Island 
DOT commented that sealed cracks should be considered in the metric.
    In response to these comments, it should be noted that while 
sealing pavement cracks is an accepted practice for preserving 
pavements in Good condition, sealing cracks caused by fatigue does not 
restore structural capacity or alter the need for investment. The 
cracking performance metric in the final rule is predicated on 
measurement of fatigue cracking located only in the wheel path, 
regardless of whether the cracks are sealed. Therefore, no change was 
made in this final rule.
    In section 490.311(b)(2)(ii), FHWA proposed methods to determine 
the rutting metric for asphalt pavements that permitted the use of 
either 5-point devices, scanning laser devices, or manual measurements. 
The Connecticut DOT asked for clarification on the accuracy of rutting 
measurement and Texas DOT suggested a minimum rut measurement spacing 
interval be required to determine the rutting average. The Michigan DOT 
suggested that if the precision level equaled the threshold for Good, 
then only pavements with zero rutting would be considered Good. The 
Texas DOT suggested an alternative metric that would represent the 
extent of rutting, in terms of the percentage of the section exhibiting 
rutting, to the proposed average value of rutting in a section. The 
Colorado, Florida, and North Carolina DOTs commented that the two 
devices identified in the NPRM for measuring rutting do not produce the 
same results. They recommended that only one device be permitted. The 
South Carolina DOT commented that it only has a 3-point laser system, 
and asked that FHWA consider the inability of State DOTs to perform the 
work in-house as required by the new rulemaking.
    In consideration of these comments and inquiries made to the 
manufacturers of the measuring devices, the final rule clarified 
section 490.311(b)(2)(ii) and Item 50 of the HPMS Field Manual. The 
final rule requires the average rutting measurement to be computed to 
the nearest 0.01 inch, and that the measured rut values in each wheel 
path should be averaged first and then used as the basis for the final 
rutting metric calculation (average of the average wheel path ruts). 
The FHWA concurs with the comment by Texas DOT related to the minimum 
spacing for manual rut measurement at 12 inches and has included 
clarification in the HPMS Field Manual. However, FHWA does not concur 
with the suggestion to base the rutting measurement on the extent of 
rutting in a section instead of the averaged area of

[[Page 5936]]

rutting. While there is merit to the suggested method, it conflicts 
with typical practices used in a majority of State DOTs and would 
require major reworking of planning and other performance models, such 
as the Highway Economics Requirements System, currently in use by FHWA. 
The final rule retains the use of averaged area as the basis for the 
rutting metric.
    In section 490.311(b)(3), FHWA proposed the method to determine the 
cracking metric for CRCP. Commenters \73\ requested a more clear 
description of how cracking, punch-outs, and patching should be 
measured to determine the percentage of the area for the metric. The 
Alabama DOT commented that the values for Item 52 are rounded to the 
nearest 5 percent under the current HPMS Field Manual, meaning that a 
result of 7.5 percent cracked is rounded to 5 percent and values up to 
12.5 percent are rounded to 10 percent cracked. Louisiana DOT made 
similar comments regarding rounding in the HPMS Field Manual. Item 52 
in the HPMS Field Manual was revised to clarify how cracking and other 
distresses in CRCP are to be measured and reported to the HPMS.
---------------------------------------------------------------------------

    \73\ AMPO, Fugro Roadware, Virginia DOT, Illinois DOT, Louisiana 
DOTD, New Jersey DOT, Portland Cement Association.
---------------------------------------------------------------------------

    In section 490.311(b)(4)(i), FHWA proposed the method to determine 
the cracking metric for jointed concrete pavements. There were a number 
of comments \74\ requesting clarification about the method of 
calculation, the types of cracks to be included, and the consideration 
of sealed cracks to the measure. Item 52 of the HPMS Field Manual 
(attached to the NPRM and posted to the docket) has been revised to 
clarify how the cracking metric for jointed concrete pavements is to be 
calculated and reported to the HPMS. There are no changes in the final 
rule language related to this issue.
---------------------------------------------------------------------------

    \74\ Colorado DOT, Connecticut DOT, Louisiana DOT, Michigan DOT, 
Mississippi DOT, New Jersey DOT, New Mexico DOT, New York DOT, 
Oregon DOT, Rhode Island DOT, Tennessee DOT, Wisconsin DOT, FP\2\ 
Inc., NAPA, NCE, Portland Cement Association, Southeastern Pavement 
Preservation Partnership, and three private citizens.
---------------------------------------------------------------------------

    In section 490.311(b)(4), FHWA proposed the method to determine the 
faulting metric for jointed concrete pavements from measured pavement 
profiles, although there is no prohibition from using manual methods. A 
number of comments \75\ focused on the method to determine faults from 
pavement profiles, the determination of average faulting, and the 
accuracy of reporting. The NPRM proposed the use of AASHTO Standard 
R36-13 as the method to identify faults, allowing for both automated 
and manual detection of faults. Several commenters \76\ expressed 
concerns with the potential for bias using the automated method. They 
remarked that the automated method would only average joints that 
exhibit measurable faulting. They noted that AASHTO Standard R36-13 
allows for variability in the method of detecting the location of 
joints, which causes variation in the reported faulting values.
---------------------------------------------------------------------------

    \75\ Michigan DOT, Wisconsin DOT, Iowa DOT, Louisiana DOT, PCA, 
Roadway Profile Users Group.
    \76\ Michigan DOT, Wisconsin DOT, Iowa DOT, Louisiana DOT, Ohio 
DOT (Tim McDonald), PCA, Roadway Profile Users Group.
---------------------------------------------------------------------------

    In response to these concerns, FHWA has revised the section for 
Data Item 51 in the HPMS Field Manual to clarify how to calculate and 
report the average faulting to the HPMS.
    The Michigan DOT, Alabama DOT, and Louisiana DOTD pointed out a 
conflict in the threshold proposed to determine Good faulting condition 
and the accuracy of reporting for the faulting metric. The Louisiana 
DOT stated that the proposed metrics for faulting appear to be based on 
pre-2000 historical faulting data, which ignores the significant 
increase in Truck Traffic and is relatively limited in scope. As 
Michigan DOT pointed out, if the precision of the reporting of average 
faulting for a section is 0.05, the process of rounding would eliminate 
the possibility of a Good classification unless the pavement faulting 
was zero. For example, if in a section one half of the measurements 
were 0.02 inch and one half of the measurements were 0.04 inch, the 
average would be 0.03 inch, which would be rounded up to 0.05 inch. 
Since the threshold is also 0.05 inch, this section would be classified 
as Fair per the NPRM, even though all of the measurements were in the 
Good range. A recheck with the manufacturers of the measuring equipment 
indicated that the devices would not have a problem providing an 
average measurement to the 0.01 inch precision. This would eliminate 
the problem. The basis for the faulting thresholds is the ``end of 
design life'' from the AASHTO Mechanistic-Empirical Pavement Design 
Guide (MEPDG),\77\ not pre-2000 historical faulting data as suggested 
by Louisiana DOT.
---------------------------------------------------------------------------

    \77\ Mechanistic Empirical Design Guide, A Manual of Practice, 
Second Edition AASHTO 2015.
---------------------------------------------------------------------------

    In the final rule, FHWA revised the reporting accuracy of faulting 
from 0.05 inches to 0.01 inches to address conflicts associated with 
rounding in the determination of condition levels.
    In section 490.311(c)(4) and (5), FHWA proposed due dates of April 
15th and June 15th to report metrics to the HPMS for the Interstate and 
non-Interstate NHS, respectively. The AASHTO, Alaska DOT&PF, Illinois 
DOT, Mississippi DOT, New York DOT, Oregon DOT, Rhode Island DOT, and 
Texas DOT objected to these due dates. They expressed concern with 
managing two different submission dates and the challenges of meeting 
the April 15th deadline for Interstates. The commenters felt that the 
earlier due date was not necessary and that all of the data should be 
submitted no later than June 15th. The Wisconsin and the Kentucky DOTs 
commented that they could meet the proposed April 15th deadline. The 
Washington DOT agreed with reporting metrics for the entire Interstate 
System by April 15th.
    The FHWA included discussion in the NPRM to explain the reasoning 
for this proposed change. In summary, the accelerated due dates for 
Interstate pavements and NHS bridges is needed to administer the NHPP 
condition requirements prescribed in 23 U.S.C. 119(f). These provisions 
require FHWA to make a determination of compliance in a time frame that 
would allow for any resulting penalties to be applied by the next 
fiscal year. The April 15th deadline was proposed to provide sufficient 
time for the data to be reviewed and for any issues to be addressed 
before a determination is made. As discussed previously, the 
determination will be made based on HPMS data extracted on June 15th. 
State DOTs will have 2 months prior to June 15th to address any 
unresolved issues with the data submitted to HPMS. The final rule 
retains the due dates for HPMS submission as proposed.
Discussion of Section 490.313 Calculation of Performance Management 
Measures
    The FHWA proposed the following: (1) The methods to calculate the 
condition levels for each of the four condition metrics; (2) the 
approach to address missing data; (3) a transition in the design of the 
pavement measure for non-Interstate NHS pavements; and (4) the method 
to calculate the section 490.307 pavement performance measures. The 
proposed approach utilized a method that considered the predominant 
condition level, represented by the four condition metrics, to 
determine the overall condition of each pavement section. The overall 
condition was proposed to be used to determine the percentage of the 
Interstate and non-Interstate NHS in Good and Poor conditions. In 
addition, the NPRM provided for a transition for non-Interstate NHS 
pavements that

[[Page 5937]]

utilized only the IRI metric for the first performance period in 
determining the pavement measure. Finally, the NPRM also proposed an 
approach to consider all sections with missing data to be in Poor 
condition.
    A number of comments were received on the use of the terms 
``Good,'' ``Fair,'' and ``Poor'' and the condition metrics that were 
proposed to determine condition levels and the final pavement measures. 
The City of Seattle DOT suggested that FHWA define pavement condition 
in terms of 3 to 4 predominant assessment systems, arguing that it 
would provide additional flexibility. The FHWA considered these 
comments in the review of section 490.307. The discussion in section 
490.307 of this preamble responds to comments and describes 
corresponding changes to the final rule.
    In section 490.313(b), FHWA proposed thresholds for each of the 
four condition metrics that would be used to determine Good, Fair, and 
Poor condition levels. Several comments, primarily from local 
government agencies,\78\ suggested that the thresholds be set 
differently for higher and lower volume roadways. The Louisiana DOT 
proposed that different performance metrics be identified for pavements 
that have higher traffic volumes. Maryland DOT generally agreed that 
the proposed criteria are appropriate, but suggested that alternative 
thresholds may be appropriate if friction is included as a metric, or 
if consideration is given to the causes of and repairs to structural 
cracking versus surface (functional) cracking. The Missouri DOT 
commented that one approach should be used for all roadways. The FHWA 
agrees with the comment from Missouri DOT and maintains that a standard 
definition of condition levels be used for all levels of roadway. The 
intent of MAP-21 is that State DOTs and MPOs establish targets that 
reflect different expectations for pavement conditions due to higher 
and lower traffic volumes and/or other reasons. For example, a State 
DOT may elect to establish the pavement performance condition target 
for high traffic volume roads to be significantly smoother and less 
prone to disruption from maintenance activities than conditions on 
lower volume roads.
---------------------------------------------------------------------------

    \78\ City of Fremont, CA, City of Santa Rosa, CA, City of 
Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of 
Marin, CA, Metropolitan Transportation Commission, Oversight 
Committee for the California Local Streets and Roads Needs 
Assessment, Puget Sound Regional Council, Rural Counties Task Force, 
California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, 
County of Los Angeles, Oregon DOT, South Dakota DOT, Seattle DOT, 
Orange County Transportation Authority, City of Portland, OR, City 
of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of 
Tiburon, CA, City of Spokane, WA, California Association of 
Counties, League of California Cities, Ada County Highway District.
---------------------------------------------------------------------------

    The FP\2\ Corporation and State DOTs of Georgia, Rhode Island and 
Illinois expressed concerns regarding the weighting of pavement 
measures. They suggested that rather than weighting equally (except for 
rutting and faulting, which are combined), FHWA should consider 
weighting rutting and faulting differently. Fatigue cracking and 
rutting typically have a higher impact on the overall pavement 
condition rating and deterioration rate than does IRI or faulting. In 
addition, the State DOTs of Connecticut and Illinois argued that 
excluding bridges from the IRI calculation conflicts with the current 
HPMS Field Manual reporting practices. The State DOTs asked if the HPMS 
Field Manual will be updated.
    The FHWA appreciates the concerns from FP\2\ Corporation and the 
Georgia, Rhode Island and Illinois DOTs about the issues related to 
weighting of the pavement metrics. The FHWA recognizes that weighting 
is a typical practice for pavement management in many jurisdictions. 
However, the evaluation of pavement performance is more of a snapshot 
of existing conditions than a predictor of future conditions. Because 
of this, it is dependent more or less equally on each of the parameters 
described in the NPRM and maintained in the final rule. With reference 
to the bridges, it should be noted that the HPMS Field Manual made 
changes related to excluding bridges as required by 23 U.S.C. 
119(f)(1)(A). Revisions to the HPMS Field Manual incorporated in the 
final rule retain these changes.
    In section 490.313(b)(1), FHWA proposed IRI thresholds of less than 
95 for Good condition and more than 170 for Poor condition with an 
exception for urbanized areas over 1 million in population. The IRI 
equal to 95 threshold reflects the generally accepted point where a 
road surface is no longer considered smooth; an IRI equal to 170 is the 
point where a road surface is considered unacceptably rough. A 
threshold of 220 for Poor was proposed for urbanized areas over 1 
million in population, citing that a greater tolerance for increased 
roughness, lower travel speeds, utilities and construction difficulties 
existing in these areas. Several commenters \79\ objected to this 
provision. They argued that population should not be part of the 
definition of pavement roughness and that if adopted, it should be 
extended to all urban areas. The AASHTO and Connecticut DOT also 
requested clarification on the definition of urban, suggesting that 
urban areas should include more than the 1 million population threshold 
proposed in the NPRM. The Orange County Transportation Authority, PSRC, 
Road Profilers Users Group, Tennessee DOT, and Washington DOT suggested 
that the threshold for IRI on pavements be based on speed, not 
population. New Jersey DOT argued that the Interstate IRI should never 
be greater than 170, regardless of whether or not it is urban. CEMEX 
USA suggested that a ``Poor IRI threshold of greater than 170 in/mile'' 
be used for both rural and urban Interstate applications. Similarly, 
the Northeast Areawide Coordinating Agency, the Metropolitan 
Transportation Commission, and the Portland Cement Association agreed 
that urbanized and non-urbanized areas should have the same thresholds. 
Florida DOT and Illinois DOT also noted that there is potential 
confusion over census boundaries, adjusted/approved boundaries, and 
metropolitan planning areas.
---------------------------------------------------------------------------

    \79\ Alaska DOT&PF, AASHTO, CalTrans, Association of Municipal 
Planning Officials, Connecticut DOT, Idaho DOT, Illinois DOT, Iowa 
DOT, Louisiana DOT, Mississippi DOT, Missouri DOT, Montana DOT, New 
Jersey DOT, North Dakota DOT, Oklahoma DOT, South Dakota DOT, 
Tennessee DOT, Washington State DOT, Wyoming DOT, Puget Sound 
Regional Council, Road Profilers Users Group, North East Ohio 
Areawide Coordinating Agency, CEMEX, USA, Brian Domsic, Ohio DOT, 
Larry Scofield.
---------------------------------------------------------------------------

    The FHWA agrees that a separate threshold should not be established 
for urban areas, primarily because of the point raised by Florida DOT 
on confusion about boundaries for urbanized areas with a population 
over 1 million. The exception provided for in the NPRM (section 
490.313(b)(2)) has been removed from the final rule. The change 
requires that all pavements will be considered in Poor IRI condition 
when the IRI is greater than 170.
    In section 490.313(b)(2), FHWA proposed cracking thresholds of less 
than or equal to 5 percent for Good condition and greater than 10 
percent for Poor condition. The New Mexico DOT commented that the 
definition of Cracking Percent is unclear, particularly for flexible 
pavements. In addition, the commenter stated the proposed threshold is 
too low. The Louisiana DOT commented that the thresholds for Cracking 
Percent be reviewed. The commenter stated that the usefulness of 
Cracking Percent is extremely limited. In addition, the commenter 
proposed that total length of cracks in a section be used as opposed to 
Cracking Percent. The AASHTO and Alabama DOT

[[Page 5938]]

commented that the proposed cracking thresholds for asphalt and jointed 
concrete pavements were more appropriate for Interstates and intended 
for project level assessments, citing references in the AASHTO MEPDG 
for different design thresholds. The FP\2\ Corporation proposed 
alternative cracking thresholds of less than 10 percent for Good 
condition and greater than 20 percent for Poor condition.
    In response to the comments, the threshold for Poor due to cracking 
is relaxed in section 490.313(b)(2) of the final rule (Table 1). This 
change aligns with the AASHTO MEPDG \80\ for arterial highways and 
reflects actual practices States DOTs use for design and management of 
NHS highways.
---------------------------------------------------------------------------

    \80\ The Mechanistic-Empirical Pavement Design Guide: A Manual 
of Practice from AASHTO (2008). AASHTO distributed this document to 
State DOTs upon publication. The document is currently available for 
purchase on the AASHTO Web site. A copy has been placed on the 
docket and is available for viewing by the public.

                         Table 1--Cracking Percent Pavement Condition Rating Thresholds
----------------------------------------------------------------------------------------------------------------
                                                                           Metric  range
              Surface type                            Metric                 (percent)            Rating
----------------------------------------------------------------------------------------------------------------
Asphalt Pavement.......................  Cracking Percent...............              <5  Good.
                                                                                    5-20  Fair.
                                                                                     >20  Poor.
Jointed Concrete Pavement..............  Cracking Percent...............              <5  Good.
                                                                                    5-15  Fair.
                                                                                     >15  Poor.
CRCP...................................  Cracking Percent...............              <5  Good.
                                                                                    5-10  Fair.
                                                                                     >10  Poor.
----------------------------------------------------------------------------------------------------------------

    No comments were received on the proposed cracking condition 
thresholds for CRCP (section 490.313(b)(2)(iii). Therefore, they have 
been incorporated as proposed.
    In section 490.313(b)(3), FHWA proposed asphalt pavement rutting 
thresholds of less than 0.20 inch for Good condition and greater than 
0.40 inch for Poor condition. Several commenters \81\ objected to these 
standards. They argued that the thresholds were not reasonable in areas 
where tire studs and snow chains are used and that 0.75 inch was a more 
acceptable threshold. Connecticut DOT suggested that increments of 0.25 
inches be used for the thresholds, as opposed to the proposed 0.10 inch 
increments. Cemex USA and PCA commented that the rutting threshold of 
0.10 should be the threshold for Poor condition as this is the level 
where hydroplaning would begin to occur. The Ohio DOT commented that 
the proposed rutting threshold of 0.10 would minimize the risk of 
hydroplaning. For 0.10 mile segments that have relatively uniform 
rutting, the threshold is appropriate, however, the threshold is 
inappropriate for 0.10 mile intervals that contain high stress areas.
---------------------------------------------------------------------------

    \81\ AASHTO, Colorado DOT, Connecticut DOT, Rhode Island DOT, 
Oregon DOT and North Dakota DOT.
---------------------------------------------------------------------------

    The FHWA acknowledges the issues related to the use of tire studs 
and snow chains; however, as noted by Cemex USA and PCA, the presence 
of rutting has a potential safety impact to users of the system 
regardless of the stress in the pavement. Although hydroplaning is 
possible at rutting level as low as 0.10 inch, the documented practices 
for State DOTs \82\ identify rutting above 0.20 inch as cause for 
concern and above 0.40 inch as needing immediate attention. Moreover, 
these levels are supported by the design thresholds in the MEPDG,\83\ 
which has been widely adopted by State DOTs. The final rule retains the 
proposed thresholds for asphalt pavement rutting.
---------------------------------------------------------------------------

    \82\ American Association of State Highway and Transportation 
Officials, ``Report of the AASHTO Joint Task Force on Rutting,'' 
Washington, DC, 1989.
    \83\ Mechanistic-Empirical Pavement Design Guide, A Manual of 
Practice, August 2015, 2nd Edition. American Association of State 
Highway and Transportation Officials, Washington, DC. Table 7.1.
---------------------------------------------------------------------------

    In section 490.313(b)(3)(ii), FHWA proposed faulting thresholds for 
jointed concrete pavement of less than 0.05 inch for Good condition and 
greater than 0.15 inch for Poor condition. There were a number of 
comments \84\ about this proposal. Some commenters argued that the 
thresholds were too stringent, particularly to define Good conditions. 
Some noted that there appears to be a conflict in the proposed 
threshold of 0.05 inch for Good condition and in the 0.05 inch accuracy 
of reporting for faulting (discussed earlier in section 490.311(b)). 
Others suggested that the 0.05 inch threshold for Good faulting would 
be difficult to maintain using sound construction, preservation, and 
maintenance activities. The suggested thresholds for Good ranged from 
0.05 inch to 0.25 inch.
---------------------------------------------------------------------------

    \84\ AASHTO, Idaho DOT, Connecticut DOT, Tennessee DOT, 
Mississippi DOT, North Dakota DOT, Oregon DOT, Rhode Island DOT, 
Virginia DOT, Louisiana DOTD, Portland Cement Association, Cemex 
USA, FP\2\ Corporation, Fugro Roadware, and Southeast Pavement 
Preservation Partnership.
---------------------------------------------------------------------------

    In the NPRM, FHWA proposed a minimum requirement for reporting 
faulting in the HPMS to a precision level of 0.05 inch, reflecting 
measuring capabilities from legacy equipment no longer in use. Current 
devices are accurate to 0.002 inches \85\ for individual measures and 
routinely deliver average values to a precision level of 0.01 inch. The 
HPMS permits State DOTs to report values more precisely than 0.10 inch 
and several report values to 0.01 inch or even 0.001 inch precision 
levels.
---------------------------------------------------------------------------

    \85\ This is also the standard sensor accuracy required in 
AASHTO Standard M328-10.
---------------------------------------------------------------------------

    The FHWA revised section 490.313(b)(3)(ii) to provide a 0.01 inch 
precision level for reporting average faulting, reflecting the existing 
state of the practice. The FHWA also revised section 
490.313(b)(3)(ii)(A) to set the threshold for Good at 0.10 inch, as 
discussed in the research.\86\ The FHWA retains the threshold for Poor 
at 0.15 inch since the same research indicates that a highway with an 
average of this faulting level would be considered unsatisfactory to 
all users and not easily repaired.
---------------------------------------------------------------------------

    \86\ Improving FHWA's Ability to Assess Highway Infrastructure 
Health FHWA-HIF-13-042.
---------------------------------------------------------------------------

    In response to the concerns with collecting IRI data on lower speed 
roadways and the request from local governments to consider alternative 
condition assessment methods, FHWA

[[Page 5939]]

has established thresholds to define Good, Fair, and Poor condition 
levels based on PSR in section 490.313(c)(4). In developing these 
thresholds, FHWA utilized relationships developed by Michael 
Darter.\87\ Mr. Darter's research suggests a rough correlation between 
estimated PSR values and measured IRI. In the final rule, the usage of 
PSR is restricted only to locations where posted speed limits are less 
than 40 mph on any NHS highway. The intent of this restriction is to 
provide an alternative method for areas with ``stop-and-go'' traffic 
and where constant speeds needed for proper operation of the measuring 
devices are not attainable. The PSR is calculated based on a defined 
process \88\ that uses pavement conditions that include cracking, 
rutting, and faulting. The overall performance condition rating for 
these sections is determined directly from the reported PSR values. The 
comments from the local agencies \89\ indicated that some used methods 
other than PSR, such as PCI, to rate pavements. The final rule provides 
that equivalent methods to determine pavement condition can be used 
with prior approval from FHWA of the pavement data collection method 
and the technique to convert values to PSR.
---------------------------------------------------------------------------

    \87\ ``Relationships between IRI and PSR'', Al-Omari and Darter, 
ULIU-ENG-92-2013 (1992).
    \88\ Carey, W.N. and Irick, P.E. ``The Pavement Serviceability 
Concept'' Bulletin 250, Highway Research Board, 1960.
    \89\ City of Fremont, CA, City of Santa Rosa, CA, City of 
Vacaville, CA, Colorado DOT, Contra Costa County, CA, County of 
Marin, CA, Metropolitan Transportation Commission, Oversight 
Committee for the California Local Streets and Roads Needs 
Assessment, Puget Sound Regional Council, Rural Counties Task Force, 
California DOT, Cemex USA, City of Vancouver, WA, Connecticut DOT, 
County of Los Angeles, Oregon DOT, South Dakota DOT, Seattle DOT, 
Orange County Transportation Authority, City of Portland, OR, City 
of Sacramento, CA, City of Gilroy, CA, City of Napa, CA, Town of 
Tiburon, CA, City of Spokane, WA, California Association of 
Counties, California League of Cities, South Jersey Transportation 
Planning Organization, Portland Cement Association, American 
Concrete Pavement Association, Northwest Pavement Management 
Association, Fugro Roadware, NCE, Brian Domsic, John Harvey.
---------------------------------------------------------------------------

    In section 490.313(b)(4), FHWA proposed that roadway sections with 
missing, unresolved, or invalid data would be considered in Poor 
condition for each respective condition metric. The FHWA received 
comments from 41 groups \90\ objecting to the proposal. The majority of 
the commenters expressed concern that the proposed action would give a 
false impression of the condition of the network and would mislead the 
public. Commenters identified common reasons for missing data, 
including actual or planned construction, road closures, disasters, and 
similar kinds of events. Most suggested that in any given year it would 
be unrealistic for a State DOT to reach more than 95 percent of their 
network, even under the best of conditions. The commenters offered 
alternative approaches to the proposed method, including: (1) An 
allowance of the network to be missed for valid reasons; (2) using 
previous year reported metrics when data is missing; (3) base the 
measure only on the sections that were tested and (4) an allowance for 
construction projects that will improve pavement surface be 
automatically categorized as Good until a formal rating can be given. 
The Illinois and Washington DOTs did not specifically object to the 
proposal, but asked if segments under improvement would default to 
Poor.
---------------------------------------------------------------------------

    \90\ Alabama Department of Transportation, Alaska DOT&PF, 
California (Caltrans), Connecticut DOT, Delaware DOT, Georgia DOT, 
Idaho DOT, Iowa DOT, Kentucky TTC, Louisiana DOT, Maryland DOT, 
Michigan DOT, Minnesota DOT, Mississippi DOT, Missouri DOT, Montana 
DOT, New Jersey DOT, New York State DOT, North Carolina DOT, North 
Dakota DOT, Oregon DOT, Pennsylvania DOT, Rhode Island DOT, South 
Dakota DOT, Tennessee DOT, Texas DOT, Virginia DOT, Washington State 
DOT, Wyoming DOT, AASHTO, AMPO, National Association of Regional 
Councils (NARC), New York State Association of Metropolitan Planning 
Organizations, Northeast Pavement Preservation Partnership, 
Southeast Pavement Preservation Partnership, Texas Association of 
Metropolitan Planning Organizations, New York Metropolitan 
Transportation Council, Atlanta Regional Commission, Community 
Planning Association of Southwestern Idaho, Knoxville Regional TPO, 
Fugro Roadware.
---------------------------------------------------------------------------

    In response, FHWA revised section 490.313(b)(4)(i) to allow no more 
than 5 percent of the network lane miles, not including bridges, 
unpaved and ``other''surface types (such as cobblestone, planks, 
brick), to be represented with missing, unresolved, or invalid data due 
to the reasons noted in Table 2 below. The codes provided in Table 2 
are to be documented in the HPMS submission whenever data is missing 
for any of the required relevant condition metrics or inventory data 
elements.

                  Table 2--HPMS Codes for Missing Data
------------------------------------------------------------------------
                Code                             Description
------------------------------------------------------------------------
1..................................  Construction--Roadway was under
                                      construction.
2..................................  Closure--Roadway was closed to
                                      traffic.
3..................................  Disaster--Roadway was located in an
                                      area declared as a disaster zone.
4..................................  Deterioration--Roadway is too
                                      deteriorated to measure; is
                                      already designated as ``Poor'' and
                                      is in the STIP for Capital
                                      Improvement Program purposes.
5..................................  Other--Please describe in comments.
------------------------------------------------------------------------

    The FHWA will determine that a reported section in HPMS has a 
missing, invalid or unresolved data on June 15, 2019, and annually 
thereafter for Interstate System (section 490.317(b)) and on August 15, 
2018 and biennially thereafter for non-Interstate NHS (sections 
490.109(d)(2) and 490.109(d)(4)). Once State DOTs submit data to HPMS 
by April 15 for the Interstate System (sections 490.311(c)(4) and 
490.311(d)(2)) and by June 15 for the non-Interstate NHS (sections 
490.311(c)(5) and 490.311(d)(3)), FHWA will identify the data sections 
that do not meet the data requirements specified in sections 490.309 
and 490.311(c) or do not provide sufficient data to determine its 
Overall Condition specified in sections 490.313(c) through (f) and FHWA 
will classify those data sections as ``missing or invalid data.'' The 
FHWA will then notify State DOTs the list of those data sections 
classified as missing or invalid data. Upon FHWA notification, State 
DOTs will have an opportunity to rectify by FHWA data extraction dates 
(June 15 for the Interstate System and August 15 for non-Interstate 
NHS) for determining minimum condition level for the Interstate System 
and significant progress determination for non-Interstate NHS. If a 
State DOT does not rectify FHWA identified missing or invalid data by 
FHWA data extraction dates, then those unrectified data will be 
classified as ``unresolved data.'' The FHWA will issue guidance on 
classifying ``missing, invalid or unresolved data.''

[[Page 5940]]

    The percentage will be determined by total lane-miles with missing, 
invalid, or unresolved for the network divided by the total lane-miles 
of the network (excluding the lane-miles of bridges, unpaved surface 
type, and ``other'' surface type). As shown above, the criteria for 
determining missing, invalid, or unresolved values did not include the 
data completeness of Structure Type data item. However, FHWA expects 
State DOTs to report comparable data contained their NBI data. Please 
see discussion sections for 490.313(f)(1) related to excluding bridges. 
The FHWA plans to check the reasonableness of total lane-miles of 
bridges reported in HPMS with the reported NBI data.
    The final rule prohibits reporting data collected during the 
previous data collection cycles because it does not accurately 
represent current pavement conditions required for reporting 
performance. Similarly, pavements under construction are not in 
``Good'' condition and should not be reported as such. A review of 
recent submissions to the HPMS indicates that timely and complete data 
submissions have been problematic for some State DOTs, although 23 CFR 
420.105(b) has required State DOTs to ``provide data that supports 
FHWA's responsibilities to the Congress and to the public'' for many 
years. Failure to comply with this rule results in inadequate data to 
report performance, as required in section 490.107 for the NHS, and 
insufficient data to enforce the provisions of 23 U.S.C. 150(c)(3)(iii) 
for minimum conditions on the Interstate System. Because of the 
importance of the Interstate System to demonstrate progress toward the 
national goals in 23 U.S.C. 150(b), the final rule requires that State 
DOTs have at least 95 percent of the Interstate pavement data 
available, and demonstrate that no more than 5 percent of the pavements 
are in Poor condition to avoid imposition of the penalties under 
section 490.317.
    In addition, FHWA revised section 490.109(e)(4) so that FHWA will 
determine that a State DOT has not made significant progress toward the 
achievement of an NHPP target if a State DOT does not comply with the 
data completeness requirement under this section. (See discussion on 
section 490.109(e)(4) for more detail.)
    Finally, the equation to calculate the measure was revised. It is 
now based on the total lane-miles collected and reported, not the total 
lane-miles in the system.
    In sections 490.313(c) and (d) FHWA proposed that the method to 
determine the overall condition of the pavement be based on the 
conditions levels for each metric. The AMPO and the State DOTs of 
Colorado and Illinois commented that the condition metrics should not 
be considered equally in the determination of overall condition. The 
North Dakota DOT commented that faulting and IRI are both indicators of 
roughness and therefore only one should be considered in the condition 
of jointed concrete pavements.
    The FHWA notes that no data on pavement performance, as defined in 
the NPRM and in the final rule, exists at the present time. The MEPDG 
\91\ suggests that the selected parameters are equally important in 
predicting future pavement conditions. The FHWA is committed to 
reevaluating the process through a future rulemaking once sufficient 
data has been collected. At this point there is no change in the 
proposed approach to determining the overall condition.
---------------------------------------------------------------------------

    \91\ The Mechanistic-Empirical Pavement Design Guide: A Manual 
of Practice from AASHTO (2008). AASHTO distributed this document to 
State DOTs upon publication. The document is currently available for 
purchase on the AASHTO Web site. A copy has been placed on the 
docket and is available for viewing by the public.
---------------------------------------------------------------------------

    The FHWA established sections 490.313(c)(4) and 490.313(d)(4) to 
require the overall condition to be equal to the PSR condition level 
for roadways with posted speed limits less than 40 mph where State DOTs 
have reported PSR in lieu of the IRI, cracking, rutting, and faulting 
metrics. If a State DOT elects to collect PSR for pavement sections 
meeting these requirements, the overall condition of the section will 
be determined directly from the PSR values, as described in Table 3.

                     Table 3--Overall Pavement Condition Rating Thresholds Using PSR Metric
----------------------------------------------------------------------------------------------------------------
           Surface type                      Metric                 Metric range                 Rating
----------------------------------------------------------------------------------------------------------------
All Pavements....................  PSR......................  >=4.0...................  Good.
                                                              >2.0 and <4.0...........  Fair.
                                                              <=2.0...................  Poor.
----------------------------------------------------------------------------------------------------------------

    The FHWA proposed a transition period in section 490.313(e) for 
implementing cracking, rutting, and faulting metrics for full extent 
non-Interstate NHS pavement measures to allow State DOTs time to 
implement the data requirements. During the proposed transition period, 
the overall condition rating for all pavement types on the non-
Interstate NHS would be based on IRI rating only.
    The FHWA received one comment on the proposed transition approach. 
The Washington DOT disagreed with the proposed transition approach. The 
Washington DOT remarked that the sole reporting of full extent IRI may 
``exaggerate the Poor condition.'' They provided an example in which 
IRI-based measure calculation yielded 17 percent Poor, but the measure 
calculation using all four metrics yielded 6.4 percent Poor for their 
for their non-Interstate NHS network. The Washington DOT recommended 
that the overall condition rating during the transition period should 
be based on HPMS sample sections for all four metrics. They argued that 
their approach ensures consistency in condition reporting across the 
entire first performance period. They also stated that MPOs would have 
no choice but to adopt the statewide targets (section 490.105(f)(3)) 
because the HPMS sample data would not be sufficient to represent their 
metropolitan planning area, and therefore they would not be able to 
establish their own unique targets.
    The FHWA appreciates the comment and the recommendation from 
Washington DOT. As stated in the NPRM, FHWA recognized that complete 
data for establishing baseline condition/performance for the first 
performance period will not be available for many State DOTs. The IRI 
metric data is already required for all NHS routes and can be used by 
State DOTs and MPOs to estimate the baseline condition/performance 
during the non-Interstate NHS pavement measure transition period. The 
FHWA understands Washington DOT's concerns about the discrepancies 
between IRI and four metrics based measures. However, on a national 
basis, the pavement performance metrics using sampled sections of the 
NHS is substantially less

[[Page 5941]]

reliable and less representative of actual pavement conditions. For 
these reasons, FHWA retains section 490.313(e) in the final rule. (See 
discussion sections for sections 490.105(e)(7) and 490.109(e)(3) for 
more details on phase-in target establishment requirements and 
significant progress determination for the pavement condition 
measures.)
    The New Jersey Department of Transportation requested clarification 
about how to report pavement conditions adjacent to bridges and other 
obstacles in the roadway. Alaska DOT noted that a significant portion 
of the NHS in Alaska is not paved and requested clarification about 
reporting conditions and rating performance on those routes.
    Fugro Roadware recommended that sections with pavement surfaces 
that are not asphalt, PCCP, or CRCP be identified as alternative 
pavement types and should be excluded from the network length to 
determine the percent of Good, Fair, and Poor for Interstate and other 
NHS roadways.
    In response to these requests, Section 490.313(f) includes 
exemptions for the sections of highway where the Structure is 
identified as a bridge and exempts sections that where the Surface Type 
is identified as unpaved or a type where pavement conditions cannot be 
measured, such as cobblestone or brick. The exemption for bridges 
conforms to the legislative requirement that measurement of performance 
not include bridges.
Discussion of Section 490.315 Establishment of Minimum Level for 
Condition of Pavements on the Interstate System
    The MAP-21 requires the Secretary to establish minimum condition 
levels for pavements on the Interstate System to be maintained by State 
DOTs. The FHWA proposed the requirement that no more than 5 percent of 
Interstate pavements be classified as Poor. State DOTs are subject to a 
statutory penalty that would obligate a portion of NHPP funds and 
transfer a portion of STP funds to address Interstate pavement 
conditions if they fail to meet this minimum condition requirement for 
2 consecutive years. Passage of the FAST Act in 2015 reduced the time 
from 2 consecutive years to 1 year.
    The AASHTO and a number of State DOTs \92\ submitted comments 
suggesting the following:
---------------------------------------------------------------------------

    \92\ New York State DOT, Connecticut DOT, Delaware DOT, Oregon 
DOT, Maine DOT, New Hampshire DOT, Vermont DOT, Ohio DOT, New York 
Association of Municipal Planning Organizations, Alaska DOT&PF, 
Connecticut DOT, Georgia DOT, Texas DOT, New York Metropolitan 
transportation Council.
---------------------------------------------------------------------------

     States would not be able to meet the 5 percent 
requirement.
     FHWA should establish the threshold at 10 percent (or 
higher) or not establish a threshold at all.
     State DOTs should set their own requirement as part of the 
target setting process. The requirement should be distinct by region.
     The minimum pavement condition requirements should 
consider a range of pavement condition thresholds that accommodate 
regional variation.
     The rule should establish criteria that reflect a rational 
assessment of a State's Transportation Asset Management Plan.\93\
---------------------------------------------------------------------------

    \93\ New York DOT.
---------------------------------------------------------------------------

     Funds should not be diverted from one program to another 
as a penalty for not meeting the minimum condition standard.
     The FHWA should delay implementation of the minimum 
standard for 48 months from the effective date of the rule.\94\
---------------------------------------------------------------------------

    \94\ AASHTO, Connecticut DOT, New Jersey DOT.
---------------------------------------------------------------------------

     The FHWA should incorporate safety measures into the 
minimum condition for the Interstate System.
    In the NPRM, FHWA cited a review of the reported conditions in 
recent HPMS submissions which suggested that at least 40 of the 52 
jurisdictions could meet the 5 percent standard. The existing HPMS data 
is not as comprehensive as was proposed in the NPRM, but suggests that 
most State DOTs already prioritize funding to maintain Interstates at a 
high level. The FHWA believes that setting the threshold higher than 5 
percent Poor is not justified by any available data and does not 
accomplish the national goal of keeping the Interstate System in a 
state of good repair. Acknowledging that there is virtually no existing 
data on performance, FHWA made a commitment in the NPRM to review the 
data submission from State DOTs for the first performance period and 
conduct a separate rulemaking to change the minimum standard if 
justified by the assessment of Interstate pavement conditions.
    In response to the suggestion that State DOTs set their own minimum 
standard for Interstate highways, the statute clearly indicates the 
requirement for a national standard as part of the NHPP and 
specifically directs FHWA to establish it. The minimum standard is seen 
as the minimum tolerable condition for the Interstate system to meet 
the national goals set in the legislation.
    Recent submissions to the HPMS suggested that State DOTs 
prioritized Interstate pavement conditions in every State and did not 
show significant differences in any region, except in Alaska. Alaska's 
recent submissions to HPMS showed rates of roughness, cracking, and 
rutting many times more than other parts of the country. The Alaska 
DOT&PF commented that Interstate highways in Alaska do not resemble 
Interstate highways elsewhere in the Nation. They cited the obvious 
climatic issues present in an Arctic and sub-Arctic environment such as 
embankment failures due to melting permafrost, cracking, and settlement 
due to extreme temperatures and the need for studded tire use for 7 
months of the year. More importantly, Alaska DOT&PF noted that the 
Interstate routes were not constructed under the expansion of the 
National System of Interstate and Defense Highways funding that was 
used to construct much of the Interstate system in other States. When 
the Interstate System was designated in Alaska in 1976,\95\ the routes 
typically were two lanes, did not have access control, and had been 
constructed under a variety of standards, none of which met Interstate 
requirements. In addition, Alaska DOT&PF requested that Section 490.315 
only apply to ``signed'' Interstates. Furthermore, they requested that 
non-Intestate roads that are not paved or that have similar design 
features as Interstates should not be subject to the performance 
measures for pavement either.
---------------------------------------------------------------------------

    \95\ 23U.S.C. 103(c)(1)(B)(ii).
---------------------------------------------------------------------------

    Although Alaska DOT&PF requested an overall exemption from the 
minimum standard requirement, MAP-21 does not provide that option. 
However, the regional conditions and issues brought to light by the 
Alaska DOT&PF suggest that a greater allowance for Poor pavements is 
appropriate. A review of the recent HPMS submissions from Alaska DOT&PF 
suggests that a standard of no more than 10 percent Poor should be 
achievable and appropriate for the conditions, as provided for in 
section 490.315(b).
    Commenters expressed mixed opinions on the establishment of a 
minimum condition threshold that would become more stringent over time. 
Several commenters expressed concern that pressure to meet a difficult 
minimum condition threshold may push State DOTs to implement a ``worst-
first'' approach to pavement preservation, which would run counter to 
the asset management principles and

[[Page 5942]]

planning approach advocated by FHWA.\96\
---------------------------------------------------------------------------

    \96\ State DOTs of Arkansas, Oregon and Mississippi, the 
Southern California Association of Governments, the Seattle 
Department of Transportation.
---------------------------------------------------------------------------

    However, AASHTO and the State DOTs of California, Louisiana, and 
Oregon recommended FHWA evaluate the effects of the national level 
performance measures and targets. They suggested that FHWA consider a 
graduated approach to setting minimum condition levels to ensure that 
these policies have a positive impact on management approaches.
    The New York State DOT indicated that the establishment of 
penalties and minimum conditions should take into consideration sound 
performance and asset management policies. The New York State DOT 
suggested a delay until State DOTs adopt such measures.
    The FHWA agrees that sound performance and asset management 
policies will aid State DOTs in establishing and achieving desired 
performance targets. However, it is clear that the intent of 23 U.S.C. 
150(b)(2)(iii) and 23 U.S.C. 119(f)(1) is to keep Interstate pavements 
in a state of good repair in order to achieve the national goals 
outlined in the statute. The imposition of penalties that transfer 
Federal funds to Interstate programs is intended as a last resort for 
State DOTs that have not met this expectation. Delaying this effort 
would be contrary to the intent of the legislation.
    In terms of implementation, the final rule establishes that State 
DOTs must start collecting Interstate pavement data for the HPMS 
according to the requirements in the rule not later than January 1, 
2018, with the first reporting to HPMS not later than April 15, 2019. 
The FAST Act eliminated the ``two consecutive reporting periods'' 
provisions that were outlined in the NPRM. Therefore, the first 
evaluation of the Interstate pavement conditions for minimum condition 
levels will occur based on information in the HPMS database as of June 
15, 2019. Delaying this determination is contrary to the intent of the 
FAST Act.
    There are no changes to this section in the final rule except for 
modifying the 5 percent minimum requirement for Poor pavement condition 
to 10 percent in the State of Alaska.
Discussion of Section 490.317 Penalties for Not Maintaining Minimum 
Interstate System Pavement Condition
    The FHWA proposed a methodology to annually assess the condition of 
Interstate pavements to determine compliance with the minimum condition 
requirements in 23 U.S.C. 119(f). The MAP-21 specifically applies 
penalties to State DOTs that do not meet the minimum requirements for 
pavement condition. These penalties adjust the funding requirements for 
the Interstate System until the minimum condition standards are met.
    The AASHTO and the NCPP outlined concerns from State DOTs over the 
application and subsequent consequences of not meeting the minimum 
condition requirements established by Congress and proposed by FHWA in 
the NPRM with the following arguments:
     Penalties should be eliminated in their entirety because 
they can lead to a ``worst-first'' management approach.
     The FHWA should allow longer timeframes for reporting 
periods before imposing mandatory penalties.
     The transition to the proposed full extent data collection 
requirements for pavements needs to be fully implemented before 
assessing penalties for minimum condition.
     Minimum condition and penalties should consider important 
factors like the current conditions for Interstate pavements or other 
stressors, such as impacts of State-specific climates.
     The FHWA should defer the imposition of any penalties and 
minimum condition thresholds to the fullest extent possible. Penalties 
should be a last resort and only utilized if a State DOT has not 
adopted sound performance and asset management policies and methods.
     The FHWA should be cautious if establishing a minimum 
condition goal based primarily on a limited amount of data.
     Attainment of minimum condition thresholds without 
sufficient and reliable Federal funding will be difficult for some 
States \97\ and therefore detrimental to off-NHS needs.
---------------------------------------------------------------------------

    \97\ New York DOT, National Asphalt Paving Association (NAPA).
---------------------------------------------------------------------------

    Several State DOTs \98\ agreed with AASHTO's comments and suggested 
that no standard was needed or that the minimum condition standard 
should be set at a level that would be much easier to meet. The 
Michigan State Transportation Commission (STC) and Michigan's 
Transportation Asset Management Council (TAMC) suggested that the ``5 
percent Poor'' (or 95 percent Good/Fair) goal for Interstate pavements 
should be removed from the rule, arguing that setting such a high 
standard for Interstate pavements will undermine State DOTs' ability to 
improve the condition or ensure the performance of the miles of NHS 
pavement under their control.
---------------------------------------------------------------------------

    \98\ New York State DOT, Connecticut DOT, Delaware DOT, Oregon 
DOT, Maine DOT, New Hampshire DOT, Vermont AOT, New York Association 
of Municipal Planning Organizations.
---------------------------------------------------------------------------

    Title 23 U.S.C. 150(a) contains a declaration of policy directing 
the NHPP to provide efficient investment of Federal transportation 
funds by focusing on national transportation goals. These goals 
emphasize the importance of national routes to the economy, safety, and 
other concerns of the Nation. By including the requirements for a 
minimum level of condition for Interstate pavements and the penalty 
provisions in 23 U.S.C. 119(f), the statute focuses on the Interstate 
system as an essential part of achieving the stated goals. The statute 
is also clear that redirection of Federal funds is a last resort when 
Interstate highways do not meet the expectations for state of good 
repair.
    A review of the Highway Statistics table for 2013 \99\ indicates 
that the percentage of State maintained highways that are Interstate 
lane miles averages 2.5 percent, with no State having more than 7 
percent of the State maintained lane miles on the Interstate System. 
Even in the worst case, maintaining the Interstate lane miles to 
achieve 95 percent in Fair or better condition would not require the 
level of investment that would drive a program to a ``worst-first'' 
approach. On the contrary, good maintenance and preservation, as 
currently practiced by many State DOTs, would minimize requirements for 
major investment on these routes, most likely well below the threshold 
of 5 percent in Poor condition.
---------------------------------------------------------------------------

    \99\ Highway Statistics 2013 Table HM-60.
---------------------------------------------------------------------------

    With respect to the timelines for implementation, the final rule 
takes into account the time State DOTs will need to acquire data 
collection equipment or arrange for contract data collection in section 
490.309(a).
    The AASHTO and the concurring State DOTs \100\ noted that there may 
be climatic and other stressors affecting conditions of Interstate 
pavements. This may be true, but there is no evidence other than State 
HPMS submissions to estimate whether this variation actually exists. An 
examination of the 2013 submissions to HPMS suggests that no distinct 
variations in IRI or other reported pavement characteristics based on 
regional conditions were reported except in Alaska. Based on this 
finding

[[Page 5943]]

and the estimation that the majority of State DOTs will meet the 
minimum pavement condition standard, the final rule was not changed 
except to accommodate Alaska, as described above. However, due to the 
limited availability of data on performance, FHWA committed to 
reexamine the pavement performance parameters after the first 
performance period and open a new rulemaking effort to make changes, if 
justified.
---------------------------------------------------------------------------

    \100\ Alabama DOT, Connecticut DOT, Kentucky DOT, New Jersey 
DOT, New York State DOT, Tennessee DOT, Texas DOT, Alaska DOT&PF, 
and Georgia DOT.
---------------------------------------------------------------------------

    The MAP-21 language ties together the requirements for asset 
management plans and performance measurement. As previously stated, 
State DOTs are expected to have an asset management plan and sound 
performance policies within a certain period of time designated in the 
respective rules. In establishing the implementation schedule for data 
collection and performance evaluation under subpart C, care was taken 
to give State DOTs enough time to develop and implement the necessary 
programs to ensure pavement performance.
    The FHWA agrees with AASHTO that the imposition of the penalty is a 
last resort effort necessary to ensure acceptable performance of the 
Interstate System to achieve the national goals for the NHPP.
Discussion of Section 490.319 Other Requirements
    The FHWA proposed the Data Quality Management program requirements 
in section 490.319(c) to implement 23 U.S.C.150(c)(3)(A)(iv) for 
pavement condition data. As FHWA indicated in the NPRM, the structure 
of the data quality Management Program is left up to State DOTs but 
this section proposed that the plan must have methods to ensure that 
equipment is working properly, people are trained, data quality is 
being checked, and that a method of error resolution is documented.
    However, AASHTO and a few State DOTs \101\ objected to the 
language. They suggested that a data quality management program was not 
called for in the legislation; that no specific details are mentioned 
in the legislation; and that there is concern with the variability 
among FHWA Division Office approvals. The Oregon DOT requested 
clarification on which FHWA office would review and approve the Data 
Quality Management Program, noting that the requirement for a State DOT 
to seek approval for any change to the Program seemed excessive. In 
their joint letter, the State DOTs of Idaho, Montana, North Dakota, 
South Dakota, and Wyoming suggested that the requirements for Data 
Quality Management be revised so that States must certify they have a 
data quality management program and provide a description to FHWA. 
Conversely, the Alaska DOT&PF supported the provision to have a Data 
Quality Management Program and suggested that the Program be approved 
prior to States using the data for the performance measures.
---------------------------------------------------------------------------

    \101\ Alaska DOT&PF, Connecticut DOT, Idaho DOT, Montana DOT, 
New York DOT, North Dakota DOT, Oregon DOT, South Dakota DOT, 
Washington DOT, Wyoming DOT.
---------------------------------------------------------------------------

    The FHWA disagrees with the comments from AASHTO and those 
concurring State DOTs. The FHWA believes that MAP-21 gives it the 
discretion to establish requirements for implementing 23 U.S.C. 
150(c)(3)(A)(iv). The FHWA also believes the data quality management 
program requirements in section 490.319(c) will ensure quality data and 
provide a sufficient level of consistency in report expectations. The 
FHWA believes the proposed language is consistent with the nine 
principles \102\ in the NPRM preamble, which were considered in the 
development of the proposed regulation. Additionally, a recent FHWA 
study \103\ on data quality indicated that most State DOTs have 
implemented parts of programs to ensure data quality but have not 
documented or formalized their use in the data collection process. As 
stated in the NPRM, the intent of this section was to ensure that the 
important step of formalization in the program occurs. The FHWA retains 
the language that leaves the content of the data quality management 
plan up to State DOTs because FHWA recognizes that every State DOT has 
unique methods, needs, and opportunities in the data collection. The 
FHWA approval of each State DOT's data quality management plan is to be 
based on its ability to deliver the specific outcomes identified in the 
NPRM and retained in the final rule. Specific guidance will be provided 
to Division Offices to ensure consistency in the Pavement Data Quality 
Plan requirements.
---------------------------------------------------------------------------

    \102\ Nine principles used in the development of proposed 
regulations for national performance management measures under 23 
U.S.C. 150(c), www.regulatons.gov, Docket FHWA-2013-0053.
    \103\ ``Practical Guide for Quality Management of Pavement 
Condition Data Collection'' FHWA-HIF-14-006.
---------------------------------------------------------------------------

C. Subpart D National Performance Management Measures for Assessing 
Bridge Condition

Discussion of Section 490.401 Purpose
    To implement the provisions of 23 U.S.C. 150(c)(3)(A)(ii)(III), 
FHWA proposed a statement of purpose which required the establishment 
of performance measures for State DOTs to use to assess the condition 
of bridges carrying the NHS which includes on- and off-ramps connected 
to the NHS. This is done to carry out the NHPP. The FHWA revised 
section 490.401 to provide clarity as to which highway bridges are 
subject to this regulation.
    The FHWA received two comments on section 490.401. The Oregon DOT 
argued that the proposed rule would create a conflict by giving the 
Federal Government the authority to interfere with a State DOT's 
ability to independently manage its highway infrastructure assets.
    The Virginia DOT provided a statement of support. The Virginia DOT 
argued that the proposed rule would promote a preservation approach to 
managing highway bridges and is an improvement over the ``worst-first'' 
approach.
    The overall purpose of this rule and the underlying statutory 
provisions is to ensure that Federal transportation funds are 
efficiently invested and that the condition of highway infrastructure 
assets are maintained in a state of good repair, while increasing 
accountability and transparency of the Federal-aid highway program. 
(See 23 U.S.C. 150(a) and (b).) Although recipients of Federal-aid 
highway funds are expected to make transportation investments with a 
focus on national goals, the authority to establish performance targets 
and make project selections is still maintained by State DOTs.
    The FHWA retains the language in section 490.401, as proposed in 
the NPRM, with a minor revision that provides clarity as to which 
highway bridges are subject to this regulation. The stated purpose is 
consistent with statutory language in MAP-21 and clear in the purpose 
of the performance measures.
Discussion of Section 490.403 Applicability
    To implement the statutory provisions under 23 U.S.C. 
150(c)(3)(A)(ii)(III), FHWA proposed that subpart D be applicable to 
bridges carrying the NHS which includes on- and off-ramps connected to 
the NHS.
    The FHWA received comments from AASHTO, ARC, and 12 State DOTs 
(Arkansas, Colorado, Connecticut, Iowa,

[[Page 5944]]

Maine, Michigan, Missouri, New Hampshire, North Dakota, Oklahoma, 
Tennessee, and Vermont) generally stating that State DOTs should not be 
responsible for the reporting of data, establishment of targets, asset 
condition, and managing of assets that are beyond their control.
    The FHWA retains the language in section 490.403 with a minor 
revision that provides clarity as to which highway bridges are subject 
to this regulation. Section 23 U.S.C. 150(c)(3))(A)(ii)(III) of Title 
23 of the U.S. Code requires the establishment of measures for ``States 
to use to assess the condition of bridges on the National Highway 
System'' for the purpose of carrying out the NHPP. The Section does not 
define the terms ``National Highway System'' or ``States.'' The MAP-21 
did not provide FHWA with the authority to change the definition of 
State or NHS. Thus, the definitions in 23 U.S.C. 101(a)(15) and 23 
U.S.C. 101(a)(25) have been used in this Rule. Therefore, a State DOT 
is not alleviated of the responsibilities under sec. 150 for the NHPP. 
As stated in the NPRM, FHWA recognizes that there is a limit to the 
direct impact State DOTs and the MPOs can have on the performance 
outcomes within the State and the metropolitan planning area, 
respectively. The FHWA encourages State DOTs to consult with relevant 
entities (e.g., Federal Land Management Agencies, MPOs, local 
transportation agencies, and tribal governments) as they report 
performance data and establish targets. Consultation will help State 
DOTs to better assess condition of bridges carrying the NHS, which 
includes on- and off-ramps connected to the NHS and better identify and 
consider factors outside of their direct control that could impact 
future condition/performance. (See discussion on ownership in 
discussion section for section 490.105(d).)
    The FHWA received comments from six State DOTs (Connecticut, 
Illinois, Iowa, Michigan, Minnesota, and Missouri) generally stating 
that the applicability of subparts C and D should be consistent. 
Specifically, they commented that the regulations apply only to 
mainline highway bridges carrying the NHS and that highway bridges on 
on- and off-ramps that connect to the NHS should not be subject to 
these regulations.
    Historically, FHWA has provided guidance stating that ramps are to 
be considered to be the same functional classification as the highest 
facility served.\104\ Although the NHS is not solely based on 
functional classification, but is instead defined by 23 U.S.C. 103, the 
practice of assigning the highest system served for a ramp is 
consistent with the FHWA guidance referenced above. Therefore, this 
section is applicable to the NHS (defined by 23 U.S.C. 103), which 
includes highway bridges that carry the NHS and bridges on on- and off-
ramps connecting to NHS.
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    \104\ U.S. Department of Transportation, Federal Highway 
Administration. Highway Performance Monitoring System, Guidance for 
the Functional Classification of Highways http://www.fhwa.dot.gov/policy/ohpi/hpms/fchguidance.cfm.
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    The FHWA received comments from five State DOTs (Connecticut, 
Illinois, Mississippi, Virginia, and Washington) seeking clarification 
on their responsibility for highway bridges on the NHS that cross the 
border with a neighboring State. One commenter expressed concern that 
there would be a ``double-counting'' of the deck area of highway 
bridges on the NHS when the bridge performance measures are calculated. 
Another commenter recommended that the responsibility of a highway 
bridge that crosses a border with a neighboring State should be based 
on the percentage of ownership. The commenter further stated that a 
State that does not own or share such a bridge should not be held 
responsible.
    In regards to the responsibility for highway bridges carrying the 
NHS that cross a border with a neighboring State, State DOTs should 
refer to the above discussion on responsibility for the reporting of 
data, establishment of targets, asset condition, and managing of assets 
that are beyond the control of State DOTs and MPOs. State DOTS should 
also refer to the discussion on ownership in the discussion of section 
490.105(d). Based on these previous discussions, border bridges are to 
be regarded in the same manner as any other highway bridge carrying the 
NHS that is within a State's boundaries.
    In calculating the deck area, the total deck area of all the border 
bridges that cross a State's border will be included in the calculation 
of an individual State DOT's bridge performance measures and the 
percentage of the deck area of bridges classified as Structurally 
Deficient. However, there will be no ``double-counting'' of deck area 
as FHWA has not proposed a summation or aggregate calculation of all 
State DOTs' bridge performance measures or percentage of the deck area 
of bridges classified as Structurally Deficient into national 
percentages.
    The New York