Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; Transportation Asset Management Plan Consistency Determination Interim Guidance, 7835-7839 [2018-03618]

Download as PDF Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Notices DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Public Notice for Waiver of Aeronautical Land Use Assurance; Great Falls International Airport, Great Falls, MT Federal Aviation Administration, (FAA), DOT. ACTION: Notice. AGENCY: Notice is being given that the FAA is considering a proposal from the Great Falls International Airport Authority to change certain portions of the airport from aeronautical use to nonaeronautical use at the Great Falls International Airport, Great Falls, MT. The proposal consists of 5 acres of surplus property shown on the Airport’s Exhibit ‘‘A’’ as the portion of Parcel 4 east of the airport’s access road. DATES: Comments must be received by March 26, 2018. ADDRESSES: Comments on this application may be mailed or delivered to the FAA at the following address: Mr. William C. Garrison, Manager, Federal Aviation Administration, Northwest Mountain Region, Airports Division, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, Montana 59602. FOR FURTHER INFORMATION CONTACT: Mr. Joe Nye, Civil Engineer, Federal Aviation Administration, Northwest Mountain Region, Helena Airports District Office, 2725 Skyway Drive, Suite 2, Helena, MT 59602–1213. The request to release deed restrictions may be reviewed, by appointment, in person at the same location. SUMMARY: The FAA invites public comment on the request to release the aeronautical use restriction of 5 acres at the Great Falls International Airport under the provisions of Title 49, U.S.C. Section 47153(c) and 47107(h)2. The Great Falls International Airport Authority, referred to herein as the Authority, has requested release from the aeronautical use restrictions assigned to 5 acres donated by the U.S. Government as surplus property in 1948. The 5 acres are a fragment of a larger 780-acre parcel identified on the Airport’s Exhibit A as Parcel 4. The 5 acres proposed for non-aeronautical use are isolated from the airfield by the airport entry road to the south and west. The Authority has identified these 5 acres as no longer needed for aeronautical purposes. daltland on DSKBBV9HB2PROD with NOTICES SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 20:10 Feb 21, 2018 Jkt 244001 The Authority proposes to lease the property for the construction and operation of a fueling station and restaurant. The revenue from the lease of this property will be used for airport purposes. The proposed use of this property is compatible with other airport operations and is in accordance with FAA’s Policy and Procedures Concerning the Use of Airport Revenue, published in Federal Register on February 16, 1999. Any person may inspect the request in person at the FAA office listed above under FOR FURTHER INFORMATION CONTACT. Issued in Helena, Montana, on February 14, 2018. William C. Garrison, Manager, Helena Airports District Office. [FR Doc. 2018–03658 Filed 2–21–18; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2017–0018] Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; Transportation Asset Management Plan Consistency Determination Interim Guidance Federal Highway Administration (FHWA), U.S. Department of Transportation (DOT). ACTION: Notice. AGENCY: The FHWA is finalizing one guidance document and issuing one interim guidance document: Transportation Asset Management Plan Development Processes Certification and Recertification Guidance, and Transportation Asset Management Plan Consistency Determination Interim Guidance. These documents provide implementation guidance on provisions of the Moving Ahead for Progress in the 21st Century Act (MAP–21) and the Asset Management Final Rule, which requires a State department of transportation (State DOT) to develop and implement a risk-based asset management plan. Under these authorities, FHWA must certify that Transportation Asset Management Plan (TAMP) development processes established by a State DOT meet applicable requirements, and make an annual consistency determination, evaluating whether a State DOT has developed and implemented a Stateapproved TAMP that meets all applicable requirements. This notice finalizes the Transportation Asset SUMMARY: PO 00000 Frm 00182 Fmt 4703 Sfmt 4703 7835 Management Plan Development Processes Certification and Recertification Guidance, issues interim guidance on transportation asset management plan consistency determinations, and summarizes the comments received on the drafts of both guidance documents, FHWA’s response to those comments, and any changes that were made to the guidance documents issued with this notice. FOR FURTHER INFORMATION CONTACT: For questions about this notice contact Mr. Stephen Gaj, FHWA Office of Infrastructure, (202) 366–1336, Federal Highway Administration, 1200 New Jersey Ave. SE, Washington, DC 20590, or via email at Stephen.Gaj@dot.gov. For legal questions, please contact Ms. Janet Myers, FHWA Office of the Chief Counsel, (202) 366–2019, Federal Highway Administration, 1200 New Jersey Ave. SE, Washington, DC 20590– 0001, or via email at Janet.Myers@ dot.gov. Business hours for FHWA are from 8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access Copies of the proposed Transportation Asset Management Plan Development Processes Certification and Recertification Guidance; and Transportation Asset Management Plan Consistency Determination Interim Guidance are available online for download and public inspection online under the docket at the Federal eRulemaking portal at: http:// www.regulations.gov. An electronic copy of this notice may be downloaded from the Office of the Federal Register’s home page at: http://www.archives.gov/ federal_register and the Government Publishing Office’s web page at: https:// www.gpo.gov/fdsys/. Background Under the asset management provisions enacted in MAP–21, codified at 23 U.S.C. 119, State DOTs must develop and implement a risk-based TAMP. This TAMP must include all National Highway System (NHS) pavements and bridges, regardless of whether the State or some other entity owns the relevant NHS facility. The FHWA Division Offices (Divisions) must take two actions with respect to State DOT asset management activities. The first is TAMP development process certification/ recertification. Under 23 U.S.C. 119(e)(6), FHWA must certify at least every 4 years that the State DOT’s processes for developing its TAMP are consistent with applicable E:\FR\FM\22FEN1.SGM 22FEN1 7836 Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES requirements. The FHWA also must recertify whenever the State amends its TAMP development processes, in accordance with 23 CFR 515.13(c). The Transportation Asset Management Plan Development Processes Certification and Recertification Guidance (Development Processes Certification Guidance) provides a framework for Divisions to undertake and complete this process certification. The second FHWA action, under 23 U.S.C. 119(e)(5), is an annual consistency determination, which evaluates whether the State DOT has developed and implemented a TAMP that is consistent with the requirements of 23 U.S.C. 119. The Transportation Asset Management Plan Consistency Determination Interim Guidance (Consistency Determination Interim Guidance) assists Divisions on evaluating whether a State DOT has developed and implemented its TAMP in accordance with provisions in 23 CFR 515.13(b). Note that best practices in guidance may be revised as the state of asset management practices advance and the asset management rule is further implemented. Draft versions of guidance were made available for public review and comment June 6, 2017, at 82 FR 25905. The FHWA received seven comment letters from the following organizations: Alaska Department of Transportation and Public Facilities, Georgia DOT, Maryland DOT, Michigan DOT, New Jersey DOT, Wyoming DOT, and joint comments from the DOTs of Idaho, Montana, New York, North Dakota, South Dakota, and Wyoming. A summary of the comments received and FHWA’s response, including any changes made in response to comments, is provided below. Based on the comments received, as well as FHWA’s experience to date as it implements the certification and consistency determination requirements, FHWA concluded it is appropriate to issue final certification guidance. However, FHWA believes that issues that may affect FHWA consistency determinations are less well-defined at this time. Accordingly, FHWA is issuing the guidance on consistency determinations as interim guidance, with the expectation of finalizing that guidance later in 2018. Concern That the Guidance Would Impose New Requirements Several commenters (Alaska, Wyoming, and the joint commenters) expressed concern that these guidance documents would impose new requirements without undergoing the required notice and comment procedures. In response to these VerDate Sep<11>2014 20:10 Feb 21, 2018 Jkt 244001 concerns, FHWA notes that the guidance does not impose any new requirements. Any requirements discussed in the guidance are imposed by existing statute or regulation, and those requirements can be changed only by revising these underlying authorities. Recommended best practices are clearly described as not required, and may be revised as practices advance and asset management is further implemented. The FHWA revised the introduction of both documents to clarify this point. TAMP Consistency Determination Requirements Alaska asked for more information on the factors that Divisions will use to determine that State DOT funding allocations are ‘‘reasonably consistent’’ with 23 U.S.C. 119. Under that section, the Secretary must determine annually that a State has developed and implemented an acceptable TAMP. As indicated in 23 CFR 515.13(b)(2), each State DOT may determine the most suitable approach for demonstrating implementation of its TAMP, so long as the information is current, documented, and verifiable. The FHWA considers the best evidence of plan implementation to be that, for the 12 months preceding the consistency determination, the State DOT funding allocations are reasonably consistent with the investment strategies in the State DOT’s TAMP. This demonstration takes into account the alignment between the actual and planned levels of investment for various work types (i.e., initial construction, maintenance, preservation, rehabilitation, and reconstruction (CFR 515.13(b)(2)(i))). The FHWA believes the draft guidance (page 2, third paragraph) discussion of ‘‘reasonably consistent’’ is sufficiently detailed to inform FHWA Divisions and stakeholders about this issue. Alaska also asked for more information about how the Division will communicate its consistency determination to the State DOT. As provided in 23 CFR 515.13(b), FHWA will notify the State DOT, in writing, whether the State DOT has developed and implemented a TAMP consistent with applicable requirements. The FHWA does not believe it is necessary to further specify how the notice is delivered to the State DOT. Declining Targets and Asset Conditions Joint commenters and Wyoming noted that the performance management regulations in 23 CFR part 490 allow a State DOT to adopt targets for NHS bridge and pavement conditions that reflect conditions that decline at faster rates than previously was the case. The PO 00000 Frm 00183 Fmt 4703 Sfmt 4703 FHWA recognizes that, due to the fiscal conditions and the need for trade-offs across assets, conditions of an asset may improve, stay constant, or decline. In response to this comment, FHWA added clarifying language to the Consistency Determination Interim Guidance regarding such declining targets and asset conditions. However, the State DOT should explain in its TAMP how these improvements or declines affect long-term goals of achieving and sustaining a state of good repair. The TAMP investment strategies must, during the life of the long-term TAMP, be designed to support or make progress toward (1) achieving and sustaining a desired state of good repair over the life cycle of the assets, (2) improving or preserving the condition of the assets and the performance of the NHS relating to physical assets, and (3) achieving the national goals identified in 23 U.S.C. 150(b). Relationship Between TAMP and Existing Transportation Planning Processes Michigan asked for clarification on the relationship between existing transportation processes and TAMP requirements, specifically on page 20 of the draft Development Processes Certification Guidance. The requirement to integrate the State-approved TAMP into the transportation planning process calls for consideration of TAMP information and investment strategies when making programming and project selection decisions during transportation planning. The asset management rule, at 23 CFR 515.9(h), clearly describes the interaction between the TAMP and STIP: ‘‘the State DOT must integrate its TAMP into the State DOT’s planning processes that lead to the STIP, to support the State DOT’s efforts to achieve the goals in 23 CFR 515.9(f).’’ The FHWA encourages (but does not require) that such integration extend to including, in the STIP performance management target achievement discussion under 23 CFR 450.218(q), information about how TAMP investment strategies have been used when programming projects into the STIP. In contrast, the draft Development Processes Certification Guidance addresses the appropriate role of STIPs when State DOTs are developing their TAMPs. The statement noted by the commenter does not contradict 23 CFR 515.9(h). The TAMPs are the product of analyses and data requirements that do not necessarily apply to other documents, such as STIPs. The guidance emphasizes the long-term nature of the TAMP. A short-term E:\FR\FM\22FEN1.SGM 22FEN1 Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Notices program, like the STIP, should be used only as background information given this difference in relevant time periods. For example, hard coding STIP projects into Bridge Management Systems to impact development of investment strategies for bridge assets is not considered the use of STIP as background information. However, if a major project with significant amount of funding is delayed for some reason, then the State DOT needs to determine if this delay could have any impact on their TAMP and if so, whether the impact is significant enough to require an update. For these reasons, importing a STIP directly into a TAMP as a substitute for TAMP analysis and investment decision-making does not fulfill TAMP requirements. The FHWA concluded no change is needed to the Development Processes Certification Guidance. daltland on DSKBBV9HB2PROD with NOTICES TAMP Life Cycle Planning (LCP) Process and Modeling Requirements Georgia asked for clarification on the extent and detail it should include in its TAMP submission regarding the LCP process and modeling. In response, FHWA clarifies that States do not need to include their deterioration models in detail in their TAMPs. However, the deterioration models are required to perform the required analysis, and a State DOT must identify the model(s) that are part of the State DOT’s process for developing its TAMP. The State DOTs should include, as part of their process description, an explanation of how the selected model(s) provide insight into LCP, and why a certain type of management strategy is the most appropriate strategy at the time of TAMP development. The asset management rule does not specifically require State DOTs to break assets into sub-groups; however, asset inventories normally break assets into sub-groups (for example a pavement inventory distinguishes between asphalt and concrete pavements), including appropriate condition data for each asset sub-group that are used to predict how each sub-group deteriorates. The State DOTs typically have agencyspecific deterioration curves for different pavement types and components/elements of bridges by bridge type. The FHWA believes the Consistency Determination Interim Guidance, the interim document ‘‘Using a Life Cycle Planning Process to Support Asset Management,’’ and the final asset management rule adequately cover this information. No change was made to the guidance. VerDate Sep<11>2014 20:10 Feb 21, 2018 Jkt 244001 Update or Amendment of TAMPs Georgia and Maryland requested clarification on the TAMP update and amendment timelines. The State DOTs must update or amend TAMPs at least every 4 years (23 CFR 515.13(c)). The State DOTs are otherwise free to update or amend plans whenever such revision is warranted.1 The FHWA will consider annually the most recent TAMP submitted by the State DOT, along with any separate documentation submitted by the State DOT to demonstrate implementation of the plan. Thus, the State DOT should consider updating its plan whenever there is a change that has material impact on the accuracy and validity of the processes, analyses, or investment strategies in the plan. If the State DOT amends its TAMP, including any amendments to TAMP development processes, the State DOT must submit the amended document to FHWA for review. The FHWA will make the applicable determination(s) (a new process certification, consistency determination, or both). The State DOT must make such submissions at least 30 days prior to the deadline for the next FHWA consistency determination, except in the case of non-material revisions as defined in 23 CFR 515.13(c). The FHWA believes the Consistency Determination Interim Guidance and the final asset management rule adequately cover this information; thus, no change was made to the guidance. Initial TAMP Requirements Michigan and Maryland requested further information on the requirements for the initial TAMP. The initial TAMP must include a description of all the required TAMP development processes described in 23 CFR 515.7. The scope of this requirement includes policies, procedures, documentation, and an implementation approach that satisfy the requirements of 23 CFR part 515. The FHWA process certification is based on those aspects of the initial TAMP. Separate from the information required for the TAMP development process certification, there are requirements for additional types of information in the initial TAMP. Those requirements are discussed in Question and Answer #1 in FHWA’s ‘‘Asset Management Initial Plan Guidance,’’ available on FHWA’s Asset Management web page (Initial TAMP Q&A #1), at https://www.fhwa.dot.gov/asset/. Specifically, Maryland asserts that the Development Processes Certification 1 Note that there are provisions in 23 CFR part 490 that affect the timing and procedures for amending 23 U.S.C. 150(d) targets. PO 00000 Frm 00184 Fmt 4703 Sfmt 4703 7837 Guidance contains requirements for the initial plans that falls outside the scope of the asset management rule. The FHWA does not agree with the commenter’s interpretation. Section 515.11(b) of the rule establishes flexibility for State DOTs, when preparing their initial TAMPs, to deviate in certain respects from 23 CFR 515.7 and 515.9 requirements by eliminating certain analyses from the plans. In response to the comment, FHWA added language to the Development Processes Certification Guidance clarifying that (1) certification of the State DOT’s TAMP development processes is based on meeting the process requirements described in 23 CFR 515.7; and (2) the initial TAMP must provide all the information specified in 23 CFR 515.7 and 515.9, except the analyses in the three areas listed as exclusions under 515.11(b). For a detailed discussion of the initial TAMP requirements, see Initial TAMP Q&A #1, discussed above. Further, Michigan requested that FHWA add a list of processes required for the initial TAMP to the Development Processes Certification Guidance. Because this information goes beyond the scope of the guidance documents that are the subject of this notice, FHWA did not revise the documents based on this comment. The requested information appears in the Initial TAMP Q&A #1, discussed above. Performance Gap Analysis Georgia and Michigan requested clarification on how to conduct the performance gap analysis, particularly, whether to use current asset condition targets given that the targets required under 23 U.S.C. 150(d) are not due until May 20, 2018. In response to the commenter’s specific questions about the use of targets in initial TAMPs, pursuant to 23 CFR 515.11(b), State DOTs are not required to include 23 U.S.C. 150(d) targets in the Initial TAMPs because the deadline for setting those targets is less than 6 months before the deadline for submission of the initial TAMP on April 30, 2018. However, FHWA encourages (but does not require) State DOTs that have performance targets, whether developed to meet 23 U.S.C. 150(d) requirements or for other reasons, to include those targets if possible. This will provide the State DOT with more experience in analysis and implementation. A State DOT that includes targets can test the effectiveness of its proposed TAMP development processes. The State DOTs may wish to establish ‘‘temporary targets’’ for use in the initial TAMP. For E:\FR\FM\22FEN1.SGM 22FEN1 7838 Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Notices daltland on DSKBBV9HB2PROD with NOTICES example, State DOTs may use the minimum condition requirements for NHS bridges and Interstate pavements, as established under 23 CFR part 490. Also, States are encouraged to set targets for non-Interstate pavements to get full coverage for NHS pavements. The State DOT can use various sources of information for temporary targets, such as strategic plans and other State plans. As discussed above, State DOT may amend its TAMP at any time to add section 150(d) targets, or to revise or remove any other targets. Procedures applicable to TAMP amendments appear in 23 CFR 515.13(c). Note, however, that 23 CFR part 490 contains separate procedures that govern the amendment of part 490 targets. The FHWA believes this information is adequately addressed in the guidance, the final asset management rule, and FHWA’s ‘‘Asset Management Initial Plan Guidance,’’ available on FHWA’s Asset Management web page, at https:// www.fhwa.dot.gov/asset/. Michigan noted that the examples of good practices for the performance gap analysis would be better suited for the portion of the Development Processes Certification Guidance entitled ‘‘Process for Ensuring Use of Best Available Data and Use of Bridge and Pavement Management Systems’’ on page 20. The FHWA agrees, and revised the final guidance as suggested. Long-term Targets, Vision, and State of Good Repair (SOGR) Michigan and Georgia requested additional guidance on the role of longterm targets and the State DOT’s longterm vision. Michigan commented that the Consistency Determination Guidance should be expanded to clarify how the long-term vision under the performance gap analysis should fit with other TAMP requirements. Michigan is concerned that Federal and some States’ performance management pavement categories may not be in alignment, and that the 10-year period for the financial plan may not align with time periods some States use for asset management. In response to the comments concerning the use of ‘‘long-term targets’’ and ‘‘long-term vision,’’ FHWA notes that neither the rule, nor the Development Processes Certification Guidance, specifically requires the State DOT’s performance gap process to include identification of long-term targets. However, it is good practice for a State DOT’s performance gap process to include identification of long-term targets and performance goals. The purpose of the TAMP is to achieve or maintain the State DOT’s desired SOGR, VerDate Sep<11>2014 20:10 Feb 21, 2018 Jkt 244001 which is a long-term goal and typically will look forward more than 10 years. Identification of long-term targets is inherent in defining SOGR. Each State DOT is required to define asset management objectives and SOGR for itself. The asset management objectives of the State DOT’s TAMP should align with the State DOT’s mission. The objectives must be consistent with the purpose of asset management, which is to achieve and sustain the desired SOGR over the life cycle of the assets at minimum practicable cost (23 CFR 515.9(d)(1)). In fact, to achieve this goal, the performance gap, life-cycle plan, and risk management analyses should cover periods longer than 10 years. For example, life cycle plans for bridges may cover a period of 70–100 years; however, the TAMP must include the information that covers the immediate next 10 years, not the entire 70–100 years (see 23 CFR 515.9(e)). The minimum 10-year period was established to acknowledge the uncertainty surrounding the validity of the assumptions that State DOTs must make to conduct analyses for periods longer than 10 years. The FHWA concluded the draft Development Processes Certification Guidance already reflects this link between the State DOT’s long-term vision for SOGR and the TAMP process for performance gap analysis. No change was made in response to this comment. Michigan specifically noted that it uses freeway and non-freeway categories for its long-term vision, rather than Interstate and NHS (excluding the Interstate) categories. The State DOT TAMPs must specifically address the Interstate and NHS (excluding the Interstate) as required under the performance management and asset management rules. State DOTs have flexibility in how they make the needed adjustments. For example, if the State DOT is managing all its freeways and the Interstate the same way, with the same SOGR goals, the State DOT should explain this in its asset management plan. No change was made in response to this comment. Michigan also asked how it should treat assets other than NHS pavements and bridges in its long-term vision, specifically, whether it could include other assets without making those other assets subject to all TAMP requirements. If the State DOT wants to address other assets without subjecting those assets to section 515.7 or 515.9(l) analyses, the State DOT can group such assets and identify them as assets outside the TAMP (e.g., ‘‘other assets,’’ ‘‘non-TAMP assets’’, ‘‘other safety related assets,’’ PO 00000 Frm 00185 Fmt 4703 Sfmt 4703 etc.). A State DOT may identify these other types of assets with its respective funding needs in a separate table or general discussion, but must clearly note that the TAMP framework was not used to arrive at the estimated funding needs/allocations for those non-TAMP assets. This issue is addressed in Question #11 of FHWA’s ‘‘Asset Management Initial Plan Guidance,’’ available on FHWA’s Asset Management web page, at https://www.fhwa.dot.gov/ asset/. In response to this comment, FHWA added information to the Consistency Determination Interim Guidance. Deviation From the TAMP Under Extenuating Circumstances Michigan asked FHWA for clarification or examples of ‘‘extenuating circumstances’’ that would allow a State to deviate from its TAMP investment strategies, pursuant to 23 CFR 515.13(b)(2)(ii). In response to these comments, FHWA revised the Consistency Determination Interim Guidance, to better describe the case-bycase, extenuating circumstances determination and the information that the State DOT should provide to support deviation from the TAMP. The FHWA may find that a State DOT has implemented its TAMP even if the State DOT has deviated from the TAMP investment strategies (23 CFR 515.13(b)(2)(ii)). To support such finding, the State DOT’s deviation from its TAMP investment strategies must be the result of circumstances beyond its reasonable control. If major changes in available funding or program costs are due to natural disasters or third party (non-State) actions, those circumstances likely will qualify.2 Circumstances caused by State action outside the State DOT, such as major State funding changes or changes in State program priorities due to State legislative or executive leadership action, may qualify as extenuating circumstances if the State DOT shows it was unable to either prevent those changes, or to offset their effects on achievement of the TAMP investment strategies. Changes in plans or priorities produced solely as a result of the transportation planning process would not typically be considered extenuating circumstances due to the State DOT’s role in transportation planning and the regulatory requirements that call for integration of 2 In the asset management final rule preamble (81 FR 73245), FHWA provided the following example of extenuating circumstances: A sudden increase in material prices that has an impact on delivery of the entire program, forcing the State DOT to divert more funds to projects already underway. E:\FR\FM\22FEN1.SGM 22FEN1 Federal Register / Vol. 83, No. 36 / Thursday, February 22, 2018 / Notices the TAMP into the transportation planning process. If the State believes extenuating circumstances apply, it should provide an explanation of the extenuating circumstances, the impacts, the State DOT’s efforts to avoid or offset the changes and impacts, and program changes that will be undertaken to account for the changed conditions. In addition, State DOT should consider updating or amending its TAMPs whenever there is a material impact on the accuracy and validity of the processes, analysis, or investment strategies in the plan. Updates and other amendments may require FHWA review (see 23 CFR 515.13(c)). Best Available Data New Jersey asked whether State DOTs could use adjusted historical data to analyze NHS bridge and pavement conditions. The State DOT must use the best available data (23 CFR 515.7(g)). If changes are made to historic data, the State DOT needs to explain what it has done, and why the State DOT believes that the quality of the historic data is improved by the changes. However, any changes in historical data will not be used to revise reporting submitted pursuant to 23 U.S.C. 150(e) or to change determinations made under 23 U.S.C. 119(e)(7) or 119(f). No change was made to either document based on this comment. Authority: 23 U.S.C. 119; 23 CFR part 515; 49 CFR 1.85. Issued on: February 14, 2018. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. [FR Doc. 2018–03618 Filed 2–21–18; 8:45 am] BILLING CODE 4910–22–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration [FHWA Docket No. FHWA–2017–0006] Fixing America’s Surface Transportation (FAST) Act; Equal Access for Over-the-Road Buses Guidance Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Notice. daltland on DSKBBV9HB2PROD with NOTICES AGENCY: This Notice announces and outlines the final guidance for requirements contained in Section 1411(a) and (b) of the FAST Act regarding the treatment of over-the-road buses (OTRBs). SUMMARY: VerDate Sep<11>2014 20:10 Feb 21, 2018 Jkt 244001 This guidance is effective February 22, 2018. Electronic Access: This document, the request for comments, and the comments received may be viewed online through the Federal eRulemaking portal at: http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document may also be downloaded from the Office of the Federal Register’s website at: http://www.archives.gov/ federalregister and the Government Publishing Office’s website at: http:// www.gpo.gov/fdsys. FOR FURTHER INFORMATION CONTACT: Ms. Cynthia Essenmacher, Federal Tolling Program Manager, Center for Innovative Finance Support, Office of Innovative Program Delivery, Federal Highway Administration, 315 W. Allegan St., Ste. 201, Lansing, MI 48913, (517) 702–1856. For legal questions: Mr. Steven Rochlis, Office of the Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366–1395. Office hours are from 8:00 a.m. to 4:30 p.m. E.T., Monday through Friday, except for Federal holidays. SUPPLEMENTARY INFORMATION: DATES: Table of Contents A. Background B. Summary Discussion of Comments C. Applicable Definitions for Implementing Section 1411 of the FAST Act D. Covered Facilities Subject to OTRB Equal Access E. Compliance F. Effective Date A. Background The FHWA published a Federal Register Notice on April 28, 2017, at 82 FR 19784, seeking public comment for the FAST Act OTRB provisions related to high-occupancy vehicle (HOV) facilities and toll highways. In preparing this guidance to assist in the implementation of Section 1411 of the FAST Act, FHWA considered all public comments submitted to the Federal Register Notice. Section 1411(a) and (b) of the FAST Act contained new requirements regarding the treatment of OTRBs that access toll highways and HOV facilities. Specifically, the FAST Act amended 23 U.S.C. 129 and 23 U.S.C. 166 to address equal access to toll or HOV facilities for OTRBs. The FAST Act amendments defined certain key terms but did not define other terms. The FHWA considered how to define the terms that were not defined under Section 1411 PO 00000 Frm 00186 Fmt 4703 Sfmt 4703 7839 (Section C) as well as enumerating the toll facilities subject to the OTRB requirements (Section D), as the OTRB amendment related to toll facilities that received or will receive Federal participation under 23 U.S.C. 129. In addition, FHWA believes that Congress intended that the OTRB equal access provisions be effective beginning on December 4, 2015, the enactment date of the FAST Act, in contrast to the FAST Act effective date of October 1, 2015, as noted further in Sections B and F. Application of the OTRB requirements retroactive to the FAST Act enactment date raised potential constitutional implications associated with the application prior to the enactment date, particularly for those toll facilities operated by private taxpayers under agreement with a public authority that may have assessed different toll rates to OTRBs during this period between October 1, 2015, and December 4, 2015, without notice of the change in law. For HOV facilities, 23 U.S.C. 166 (b)(3) was amended by the FAST Act, adding subparagraph (C) to grant HOV authorities an exception to allow public transportation vehicles (which FHWA interprets to include all public transportation vehicles, including public transportation buses) that do not meet the minimum occupancy requirements to use HOV lanes, but only if the HOV authority also gives equal access to OTRBs that serve the public. Under this exception, HOV authorities may allow all public transportation vehicles to use HOV lanes, whether they meet the minimum occupancy requirements or not, if they provide equal access to OTRBs serving the public, under the same rates, terms, and conditions as all other public transportation vehicles. Additionally, 23 U.S.C. 166(b)(4)(C) was amended by the FAST Act, adding subparagraph (iii), to grant HOV authorities the alternative to toll vehicles not meeting the minimum occupancy requirements in HOV lanes. In that case, HOV authorities are required to provide access to OTRBs that serve the public under the same rates, terms, and conditions as public transportation buses (which FHWA interprets to exclude other types of public transportation vehicles, which may be treated differently by the HOV authority). Similarly, on toll facilities subject to 23 U.S.C. 129, the FAST Act amended 23 U.S.C. 129(a) by adding paragraph (9) to also require that OTRBs that serve the public be provided access to the toll facility under the same rates, terms, and conditions as public transportation buses. E:\FR\FM\22FEN1.SGM 22FEN1

Agencies

[Federal Register Volume 83, Number 36 (Thursday, February 22, 2018)]
[Notices]
[Pages 7835-7839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03618]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2017-0018]


Transportation Asset Management Plan Development Processes 
Certification and Recertification Guidance; Transportation Asset 
Management Plan Consistency Determination Interim Guidance

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

ACTION: Notice.

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SUMMARY: The FHWA is finalizing one guidance document and issuing one 
interim guidance document: Transportation Asset Management Plan 
Development Processes Certification and Recertification Guidance, and 
Transportation Asset Management Plan Consistency Determination Interim 
Guidance. These documents provide implementation guidance on provisions 
of the Moving Ahead for Progress in the 21st Century Act (MAP-21) and 
the Asset Management Final Rule, which requires a State department of 
transportation (State DOT) to develop and implement a risk-based asset 
management plan. Under these authorities, FHWA must certify that 
Transportation Asset Management Plan (TAMP) development processes 
established by a State DOT meet applicable requirements, and make an 
annual consistency determination, evaluating whether a State DOT has 
developed and implemented a State-approved TAMP that meets all 
applicable requirements. This notice finalizes the Transportation Asset 
Management Plan Development Processes Certification and Recertification 
Guidance, issues interim guidance on transportation asset management 
plan consistency determinations, and summarizes the comments received 
on the drafts of both guidance documents, FHWA's response to those 
comments, and any changes that were made to the guidance documents 
issued with this notice.

FOR FURTHER INFORMATION CONTACT: For questions about this notice 
contact Mr. Stephen Gaj, FHWA Office of Infrastructure, (202) 366-1336, 
Federal Highway Administration, 1200 New Jersey Ave. SE, Washington, DC 
20590, or via email at [email protected]. For legal questions, please 
contact Ms. Janet Myers, FHWA Office of the Chief Counsel, (202) 366-
2019, Federal Highway Administration, 1200 New Jersey Ave. SE, 
Washington, DC 20590-0001, or via email at [email protected]. 
Business hours for FHWA are from 8:00 a.m. to 4:30 p.m., e.t., Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    Copies of the proposed Transportation Asset Management Plan 
Development Processes Certification and Recertification Guidance; and 
Transportation Asset Management Plan Consistency Determination Interim 
Guidance are available online for download and public inspection online 
under the docket at the Federal eRulemaking portal at: http://www.regulations.gov. An electronic copy of this notice may be 
downloaded from the Office of the Federal Register's home page at: 
http://www.archives.gov/federal_register and the Government Publishing 
Office's web page at: https://www.gpo.gov/fdsys/.

Background

    Under the asset management provisions enacted in MAP-21, codified 
at 23 U.S.C. 119, State DOTs must develop and implement a risk-based 
TAMP. This TAMP must include all National Highway System (NHS) 
pavements and bridges, regardless of whether the State or some other 
entity owns the relevant NHS facility.
    The FHWA Division Offices (Divisions) must take two actions with 
respect to State DOT asset management activities. The first is TAMP 
development process certification/recertification. Under 23 U.S.C. 
119(e)(6), FHWA must certify at least every 4 years that the State 
DOT's processes for developing its TAMP are consistent with applicable

[[Page 7836]]

requirements. The FHWA also must recertify whenever the State amends 
its TAMP development processes, in accordance with 23 CFR 515.13(c). 
The Transportation Asset Management Plan Development Processes 
Certification and Recertification Guidance (Development Processes 
Certification Guidance) provides a framework for Divisions to undertake 
and complete this process certification. The second FHWA action, under 
23 U.S.C. 119(e)(5), is an annual consistency determination, which 
evaluates whether the State DOT has developed and implemented a TAMP 
that is consistent with the requirements of 23 U.S.C. 119. The 
Transportation Asset Management Plan Consistency Determination Interim 
Guidance (Consistency Determination Interim Guidance) assists Divisions 
on evaluating whether a State DOT has developed and implemented its 
TAMP in accordance with provisions in 23 CFR 515.13(b). Note that best 
practices in guidance may be revised as the state of asset management 
practices advance and the asset management rule is further implemented.
    Draft versions of guidance were made available for public review 
and comment June 6, 2017, at 82 FR 25905. The FHWA received seven 
comment letters from the following organizations: Alaska Department of 
Transportation and Public Facilities, Georgia DOT, Maryland DOT, 
Michigan DOT, New Jersey DOT, Wyoming DOT, and joint comments from the 
DOTs of Idaho, Montana, New York, North Dakota, South Dakota, and 
Wyoming. A summary of the comments received and FHWA's response, 
including any changes made in response to comments, is provided below. 
Based on the comments received, as well as FHWA's experience to date as 
it implements the certification and consistency determination 
requirements, FHWA concluded it is appropriate to issue final 
certification guidance. However, FHWA believes that issues that may 
affect FHWA consistency determinations are less well-defined at this 
time. Accordingly, FHWA is issuing the guidance on consistency 
determinations as interim guidance, with the expectation of finalizing 
that guidance later in 2018.

Concern That the Guidance Would Impose New Requirements

    Several commenters (Alaska, Wyoming, and the joint commenters) 
expressed concern that these guidance documents would impose new 
requirements without undergoing the required notice and comment 
procedures. In response to these concerns, FHWA notes that the guidance 
does not impose any new requirements. Any requirements discussed in the 
guidance are imposed by existing statute or regulation, and those 
requirements can be changed only by revising these underlying 
authorities. Recommended best practices are clearly described as not 
required, and may be revised as practices advance and asset management 
is further implemented. The FHWA revised the introduction of both 
documents to clarify this point.

TAMP Consistency Determination Requirements

    Alaska asked for more information on the factors that Divisions 
will use to determine that State DOT funding allocations are 
``reasonably consistent'' with 23 U.S.C. 119. Under that section, the 
Secretary must determine annually that a State has developed and 
implemented an acceptable TAMP. As indicated in 23 CFR 515.13(b)(2), 
each State DOT may determine the most suitable approach for 
demonstrating implementation of its TAMP, so long as the information is 
current, documented, and verifiable. The FHWA considers the best 
evidence of plan implementation to be that, for the 12 months preceding 
the consistency determination, the State DOT funding allocations are 
reasonably consistent with the investment strategies in the State DOT's 
TAMP. This demonstration takes into account the alignment between the 
actual and planned levels of investment for various work types (i.e., 
initial construction, maintenance, preservation, rehabilitation, and 
reconstruction (CFR 515.13(b)(2)(i))). The FHWA believes the draft 
guidance (page 2, third paragraph) discussion of ``reasonably 
consistent'' is sufficiently detailed to inform FHWA Divisions and 
stakeholders about this issue.
    Alaska also asked for more information about how the Division will 
communicate its consistency determination to the State DOT. As provided 
in 23 CFR 515.13(b), FHWA will notify the State DOT, in writing, 
whether the State DOT has developed and implemented a TAMP consistent 
with applicable requirements. The FHWA does not believe it is necessary 
to further specify how the notice is delivered to the State DOT.

Declining Targets and Asset Conditions

    Joint commenters and Wyoming noted that the performance management 
regulations in 23 CFR part 490 allow a State DOT to adopt targets for 
NHS bridge and pavement conditions that reflect conditions that decline 
at faster rates than previously was the case. The FHWA recognizes that, 
due to the fiscal conditions and the need for trade-offs across assets, 
conditions of an asset may improve, stay constant, or decline. In 
response to this comment, FHWA added clarifying language to the 
Consistency Determination Interim Guidance regarding such declining 
targets and asset conditions. However, the State DOT should explain in 
its TAMP how these improvements or declines affect long-term goals of 
achieving and sustaining a state of good repair. The TAMP investment 
strategies must, during the life of the long-term TAMP, be designed to 
support or make progress toward (1) achieving and sustaining a desired 
state of good repair over the life cycle of the assets, (2) improving 
or preserving the condition of the assets and the performance of the 
NHS relating to physical assets, and (3) achieving the national goals 
identified in 23 U.S.C. 150(b).

Relationship Between TAMP and Existing Transportation Planning 
Processes

    Michigan asked for clarification on the relationship between 
existing transportation processes and TAMP requirements, specifically 
on page 20 of the draft Development Processes Certification Guidance. 
The requirement to integrate the State-approved TAMP into the 
transportation planning process calls for consideration of TAMP 
information and investment strategies when making programming and 
project selection decisions during transportation planning. The asset 
management rule, at 23 CFR 515.9(h), clearly describes the interaction 
between the TAMP and STIP: ``the State DOT must integrate its TAMP into 
the State DOT's planning processes that lead to the STIP, to support 
the State DOT's efforts to achieve the goals in 23 CFR 515.9(f).'' The 
FHWA encourages (but does not require) that such integration extend to 
including, in the STIP performance management target achievement 
discussion under 23 CFR 450.218(q), information about how TAMP 
investment strategies have been used when programming projects into the 
STIP. In contrast, the draft Development Processes Certification 
Guidance addresses the appropriate role of STIPs when State DOTs are 
developing their TAMPs.
    The statement noted by the commenter does not contradict 23 CFR 
515.9(h). The TAMPs are the product of analyses and data requirements 
that do not necessarily apply to other documents, such as STIPs. The 
guidance emphasizes the long-term nature of the TAMP. A short-term

[[Page 7837]]

program, like the STIP, should be used only as background information 
given this difference in relevant time periods. For example, hard 
coding STIP projects into Bridge Management Systems to impact 
development of investment strategies for bridge assets is not 
considered the use of STIP as background information. However, if a 
major project with significant amount of funding is delayed for some 
reason, then the State DOT needs to determine if this delay could have 
any impact on their TAMP and if so, whether the impact is significant 
enough to require an update. For these reasons, importing a STIP 
directly into a TAMP as a substitute for TAMP analysis and investment 
decision-making does not fulfill TAMP requirements. The FHWA concluded 
no change is needed to the Development Processes Certification 
Guidance.

TAMP Life Cycle Planning (LCP) Process and Modeling Requirements

    Georgia asked for clarification on the extent and detail it should 
include in its TAMP submission regarding the LCP process and modeling. 
In response, FHWA clarifies that States do not need to include their 
deterioration models in detail in their TAMPs. However, the 
deterioration models are required to perform the required analysis, and 
a State DOT must identify the model(s) that are part of the State DOT's 
process for developing its TAMP. The State DOTs should include, as part 
of their process description, an explanation of how the selected 
model(s) provide insight into LCP, and why a certain type of management 
strategy is the most appropriate strategy at the time of TAMP 
development.
    The asset management rule does not specifically require State DOTs 
to break assets into sub-groups; however, asset inventories normally 
break assets into sub-groups (for example a pavement inventory 
distinguishes between asphalt and concrete pavements), including 
appropriate condition data for each asset sub-group that are used to 
predict how each sub-group deteriorates. The State DOTs typically have 
agency-specific deterioration curves for different pavement types and 
components/elements of bridges by bridge type. The FHWA believes the 
Consistency Determination Interim Guidance, the interim document 
``Using a Life Cycle Planning Process to Support Asset Management,'' 
and the final asset management rule adequately cover this information. 
No change was made to the guidance.

Update or Amendment of TAMPs

    Georgia and Maryland requested clarification on the TAMP update and 
amendment timelines. The State DOTs must update or amend TAMPs at least 
every 4 years (23 CFR 515.13(c)). The State DOTs are otherwise free to 
update or amend plans whenever such revision is warranted.\1\ The FHWA 
will consider annually the most recent TAMP submitted by the State DOT, 
along with any separate documentation submitted by the State DOT to 
demonstrate implementation of the plan. Thus, the State DOT should 
consider updating its plan whenever there is a change that has material 
impact on the accuracy and validity of the processes, analyses, or 
investment strategies in the plan. If the State DOT amends its TAMP, 
including any amendments to TAMP development processes, the State DOT 
must submit the amended document to FHWA for review. The FHWA will make 
the applicable determination(s) (a new process certification, 
consistency determination, or both). The State DOT must make such 
submissions at least 30 days prior to the deadline for the next FHWA 
consistency determination, except in the case of non-material revisions 
as defined in 23 CFR 515.13(c). The FHWA believes the Consistency 
Determination Interim Guidance and the final asset management rule 
adequately cover this information; thus, no change was made to the 
guidance.
---------------------------------------------------------------------------

    \1\ Note that there are provisions in 23 CFR part 490 that 
affect the timing and procedures for amending 23 U.S.C. 150(d) 
targets.
---------------------------------------------------------------------------

Initial TAMP Requirements

    Michigan and Maryland requested further information on the 
requirements for the initial TAMP. The initial TAMP must include a 
description of all the required TAMP development processes described in 
23 CFR 515.7. The scope of this requirement includes policies, 
procedures, documentation, and an implementation approach that satisfy 
the requirements of 23 CFR part 515. The FHWA process certification is 
based on those aspects of the initial TAMP. Separate from the 
information required for the TAMP development process certification, 
there are requirements for additional types of information in the 
initial TAMP. Those requirements are discussed in Question and Answer 
#1 in FHWA's ``Asset Management Initial Plan Guidance,'' available on 
FHWA's Asset Management web page (Initial TAMP Q&A #1), at https://www.fhwa.dot.gov/asset/.
    Specifically, Maryland asserts that the Development Processes 
Certification Guidance contains requirements for the initial plans that 
falls outside the scope of the asset management rule. The FHWA does not 
agree with the commenter's interpretation. Section 515.11(b) of the 
rule establishes flexibility for State DOTs, when preparing their 
initial TAMPs, to deviate in certain respects from 23 CFR 515.7 and 
515.9 requirements by eliminating certain analyses from the plans. In 
response to the comment, FHWA added language to the Development 
Processes Certification Guidance clarifying that (1) certification of 
the State DOT's TAMP development processes is based on meeting the 
process requirements described in 23 CFR 515.7; and (2) the initial 
TAMP must provide all the information specified in 23 CFR 515.7 and 
515.9, except the analyses in the three areas listed as exclusions 
under 515.11(b). For a detailed discussion of the initial TAMP 
requirements, see Initial TAMP Q&A #1, discussed above.
    Further, Michigan requested that FHWA add a list of processes 
required for the initial TAMP to the Development Processes 
Certification Guidance. Because this information goes beyond the scope 
of the guidance documents that are the subject of this notice, FHWA did 
not revise the documents based on this comment. The requested 
information appears in the Initial TAMP Q&A #1, discussed above.

Performance Gap Analysis

    Georgia and Michigan requested clarification on how to conduct the 
performance gap analysis, particularly, whether to use current asset 
condition targets given that the targets required under 23 U.S.C. 
150(d) are not due until May 20, 2018.
    In response to the commenter's specific questions about the use of 
targets in initial TAMPs, pursuant to 23 CFR 515.11(b), State DOTs are 
not required to include 23 U.S.C. 150(d) targets in the Initial TAMPs 
because the deadline for setting those targets is less than 6 months 
before the deadline for submission of the initial TAMP on April 30, 
2018. However, FHWA encourages (but does not require) State DOTs that 
have performance targets, whether developed to meet 23 U.S.C. 150(d) 
requirements or for other reasons, to include those targets if 
possible. This will provide the State DOT with more experience in 
analysis and implementation. A State DOT that includes targets can test 
the effectiveness of its proposed TAMP development processes. The State 
DOTs may wish to establish ``temporary targets'' for use in the initial 
TAMP. For

[[Page 7838]]

example, State DOTs may use the minimum condition requirements for NHS 
bridges and Interstate pavements, as established under 23 CFR part 490. 
Also, States are encouraged to set targets for non-Interstate pavements 
to get full coverage for NHS pavements. The State DOT can use various 
sources of information for temporary targets, such as strategic plans 
and other State plans.
    As discussed above, State DOT may amend its TAMP at any time to add 
section 150(d) targets, or to revise or remove any other targets. 
Procedures applicable to TAMP amendments appear in 23 CFR 515.13(c). 
Note, however, that 23 CFR part 490 contains separate procedures that 
govern the amendment of part 490 targets.
    The FHWA believes this information is adequately addressed in the 
guidance, the final asset management rule, and FHWA's ``Asset 
Management Initial Plan Guidance,'' available on FHWA's Asset 
Management web page, at https://www.fhwa.dot.gov/asset/.
    Michigan noted that the examples of good practices for the 
performance gap analysis would be better suited for the portion of the 
Development Processes Certification Guidance entitled ``Process for 
Ensuring Use of Best Available Data and Use of Bridge and Pavement 
Management Systems'' on page 20. The FHWA agrees, and revised the final 
guidance as suggested.

Long-term Targets, Vision, and State of Good Repair (SOGR)

    Michigan and Georgia requested additional guidance on the role of 
long-term targets and the State DOT's long-term vision. Michigan 
commented that the Consistency Determination Guidance should be 
expanded to clarify how the long-term vision under the performance gap 
analysis should fit with other TAMP requirements. Michigan is concerned 
that Federal and some States' performance management pavement 
categories may not be in alignment, and that the 10-year period for the 
financial plan may not align with time periods some States use for 
asset management.
    In response to the comments concerning the use of ``long-term 
targets'' and ``long-term vision,'' FHWA notes that neither the rule, 
nor the Development Processes Certification Guidance, specifically 
requires the State DOT's performance gap process to include 
identification of long-term targets. However, it is good practice for a 
State DOT's performance gap process to include identification of long-
term targets and performance goals. The purpose of the TAMP is to 
achieve or maintain the State DOT's desired SOGR, which is a long-term 
goal and typically will look forward more than 10 years. Identification 
of long-term targets is inherent in defining SOGR.
    Each State DOT is required to define asset management objectives 
and SOGR for itself. The asset management objectives of the State DOT's 
TAMP should align with the State DOT's mission. The objectives must be 
consistent with the purpose of asset management, which is to achieve 
and sustain the desired SOGR over the life cycle of the assets at 
minimum practicable cost (23 CFR 515.9(d)(1)). In fact, to achieve this 
goal, the performance gap, life-cycle plan, and risk management 
analyses should cover periods longer than 10 years. For example, life 
cycle plans for bridges may cover a period of 70-100 years; however, 
the TAMP must include the information that covers the immediate next 10 
years, not the entire 70-100 years (see 23 CFR 515.9(e)). The minimum 
10-year period was established to acknowledge the uncertainty 
surrounding the validity of the assumptions that State DOTs must make 
to conduct analyses for periods longer than 10 years. The FHWA 
concluded the draft Development Processes Certification Guidance 
already reflects this link between the State DOT's long-term vision for 
SOGR and the TAMP process for performance gap analysis. No change was 
made in response to this comment.
    Michigan specifically noted that it uses freeway and non-freeway 
categories for its long-term vision, rather than Interstate and NHS 
(excluding the Interstate) categories. The State DOT TAMPs must 
specifically address the Interstate and NHS (excluding the Interstate) 
as required under the performance management and asset management 
rules. State DOTs have flexibility in how they make the needed 
adjustments. For example, if the State DOT is managing all its freeways 
and the Interstate the same way, with the same SOGR goals, the State 
DOT should explain this in its asset management plan. No change was 
made in response to this comment.
    Michigan also asked how it should treat assets other than NHS 
pavements and bridges in its long-term vision, specifically, whether it 
could include other assets without making those other assets subject to 
all TAMP requirements. If the State DOT wants to address other assets 
without subjecting those assets to section 515.7 or 515.9(l) analyses, 
the State DOT can group such assets and identify them as assets outside 
the TAMP (e.g., ``other assets,'' ``non-TAMP assets'', ``other safety 
related assets,'' etc.). A State DOT may identify these other types of 
assets with its respective funding needs in a separate table or general 
discussion, but must clearly note that the TAMP framework was not used 
to arrive at the estimated funding needs/allocations for those non-TAMP 
assets. This issue is addressed in Question #11 of FHWA's ``Asset 
Management Initial Plan Guidance,'' available on FHWA's Asset 
Management web page, at https://www.fhwa.dot.gov/asset/. In response to 
this comment, FHWA added information to the Consistency Determination 
Interim Guidance.

Deviation From the TAMP Under Extenuating Circumstances

    Michigan asked FHWA for clarification or examples of ``extenuating 
circumstances'' that would allow a State to deviate from its TAMP 
investment strategies, pursuant to 23 CFR 515.13(b)(2)(ii). In response 
to these comments, FHWA revised the Consistency Determination Interim 
Guidance, to better describe the case-by-case, extenuating 
circumstances determination and the information that the State DOT 
should provide to support deviation from the TAMP.
    The FHWA may find that a State DOT has implemented its TAMP even if 
the State DOT has deviated from the TAMP investment strategies (23 CFR 
515.13(b)(2)(ii)). To support such finding, the State DOT's deviation 
from its TAMP investment strategies must be the result of circumstances 
beyond its reasonable control. If major changes in available funding or 
program costs are due to natural disasters or third party (non-State) 
actions, those circumstances likely will qualify.\2\ Circumstances 
caused by State action outside the State DOT, such as major State 
funding changes or changes in State program priorities due to State 
legislative or executive leadership action, may qualify as extenuating 
circumstances if the State DOT shows it was unable to either prevent 
those changes, or to offset their effects on achievement of the TAMP 
investment strategies. Changes in plans or priorities produced solely 
as a result of the transportation planning process would not typically 
be considered extenuating circumstances due to the State DOT's role in 
transportation planning and the regulatory requirements that call for 
integration of

[[Page 7839]]

the TAMP into the transportation planning process.
---------------------------------------------------------------------------

    \2\ In the asset management final rule preamble (81 FR 73245), 
FHWA provided the following example of extenuating circumstances: A 
sudden increase in material prices that has an impact on delivery of 
the entire program, forcing the State DOT to divert more funds to 
projects already underway.
---------------------------------------------------------------------------

    If the State believes extenuating circumstances apply, it should 
provide an explanation of the extenuating circumstances, the impacts, 
the State DOT's efforts to avoid or offset the changes and impacts, and 
program changes that will be undertaken to account for the changed 
conditions. In addition, State DOT should consider updating or amending 
its TAMPs whenever there is a material impact on the accuracy and 
validity of the processes, analysis, or investment strategies in the 
plan. Updates and other amendments may require FHWA review (see 23 CFR 
515.13(c)).

Best Available Data

    New Jersey asked whether State DOTs could use adjusted historical 
data to analyze NHS bridge and pavement conditions. The State DOT must 
use the best available data (23 CFR 515.7(g)). If changes are made to 
historic data, the State DOT needs to explain what it has done, and why 
the State DOT believes that the quality of the historic data is 
improved by the changes. However, any changes in historical data will 
not be used to revise reporting submitted pursuant to 23 U.S.C. 150(e) 
or to change determinations made under 23 U.S.C. 119(e)(7) or 119(f). 
No change was made to either document based on this comment.

    Authority: 23 U.S.C. 119; 23 CFR part 515; 49 CFR 1.85.

    Issued on: February 14, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2018-03618 Filed 2-21-18; 8:45 am]
 BILLING CODE 4910-22-P