National Performance Management Measures; Extenuating Circumstances, Highway Performance Monitoring System Data Field Names, Safety Performance Measure, Pavement Condition Measure, and Freight Performance Measure, 4857-4872 [2024-00373]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 89, Number 17 (Thursday, January 25, 2024)]
[Proposed Rules]
[Pages 4857-4872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00373]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 490

[Docket No. FHWA-2023-0014]
RIN 2125-AG06


National Performance Management Measures; Extenuating 
Circumstances, Highway Performance Monitoring System Data Field Names, 
Safety Performance Measure, Pavement Condition Measure, and Freight 
Performance Measure

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

ACTION: Notice of Proposed Rulemaking (NPRM); request for comments.

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[[Page 4858]]

SUMMARY: This rulemaking proposes updates to the National Performance 
Management Measures regulations to consider impacts of national 
emergencies on performance achievement, address compliance 
determinations and penalty assessment for the pavement condition 
measures, clarify data collection standards and requirements, adjust 
freight reporting to align with the 4-year update cycle for State 
Freight Plans in the Bipartisan Infrastructure Law (BIL), and provide 
select clarifying technical corrections. The rulemaking would also 
incorporate by reference the Highway Performance Monitoring System 
(HPMS) Field Manual, which includes updated fields related to the 
collection of Transportation Performance Management (TPM) data. This 
rulemaking also would provide for greater opportunities for meaningful 
safety performance targets and outcomes, consider approaches to 
alternative safety performance measures, and align performance targets 
for the three common measures that must be identical with the National 
Highway Traffic Safety Administration (NHTSA).

DATES: Comments must be received on or before February 26, 2024.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit comments by only one of the following means:
     Federal eRulemaking Portal: Go to www.regulations.gov and 
follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. The telephone number is (202) 
366-9329.
    All submissions should include the agency name and the docket 
number that appears in the heading of this document or the Regulation 
Identifier Number (RIN) for the rulemaking. All comments received will 
be posted without change to www.regulations.gov, including any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: Mrs. Alexis Kuklenski, Office of 
Infrastructure (HIF), (202) 689-9229, or via email at 
[email protected], or Ms. Dawn Horan, Office of the Chief 
Counsel (HCC-30), (202) 366-9615, or via email at [email protected]. 
Office hours are from 8 a.m. to 4:30 p.m., E.T., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov using the 
docket number listed above. Electronic retrieval help and guidelines 
are also available at www.regulations.gov. An electronic copy of this 
document may also be downloaded from the Office of the Federal 
Register's website at www.FederalRegister.gov and the Government 
Publishing Office's website at www.GovInfo.gov.
    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period and after DOT has had the opportunity to review the 
comments submitted.

I. Background and Regulatory History

    The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
(Pub. L. 112-141) and the Fixing America's Surface Transportation 
(FAST) Act (Pub. L. 114-94) transformed the Federal-aid highway program 
by establishing performance management requirements. On November 14, 
2021, President Biden signed the BIL, enacted as the Infrastructure 
Investment and Jobs Act (Pub. L. 117-58), which continued the 
performance management requirements. Such requirements aim to increase 
accountability and transparency and facilitate efficient investment of 
Federal transportation funds through a focus on performance outcomes 
for seven national transportation goals concerning safety, 
infrastructure condition, congestion reduction, system reliability, 
freight movement and economic vitality, environmental sustainability, 
and reduced project delivery delays. See 23 U.S.C. 150(b). Through 
performance management, recipients of Federal-aid highway funds make 
transportation investments to achieve performance targets that make 
progress toward those national goals. The FHWA's performance management 
regulations created a framework to more effectively evaluate and report 
on the Nation's surface transportation performance. The FHWA's 
performance management requirements are codified in 23 CFR part 490.
    Most relevant to the proposed rulemaking, the performance 
management framework requires State departments of transportation 
(State DOT) to biennially establish performance targets related to the 
National Highway Performance Program (NHPP) and National Highway 
Freight Program (NHFP) Congestion Mitigation and Air Quality 
Improvement Program. State DOTs then report progress towards those 
targets biennially per Sec.  490.107.
    In addition, FHWA conducts a biennial assessment of the State DOT's 
progress toward the achievement of individual NHPP and NHFP targets. 
This assessment is commonly called the significant progress 
determination. If a State DOT fails to make significant progress toward 
the achievement of an applicable target, additional reporting to 
document how progress will be made is required for all targets in the 
measure area.
    For the freight measure only, as part of the biennial reporting, 
the State DOT also provides the location of truck freight bottlenecks 
within the State and reports on progress toward addressing the 
congestion at these locations. The regulation allows the State DOT to 
use their State Freight Plan prepared under 49 U.S.C. 70202 to meet 
these requirements when it is less than 2 years old.
    As part the State DOT's biennial reporting, the State DOT can 
provide an explanation of how any extenuating circumstances listed in 
the regulation prevented it from making significant progress toward the 
achievement of an individual target. The State DOT must also quantify 
the impacts on the condition/performance that resulted from the 
extenuating circumstance(s). The FHWA expects that the application of 
extenuating circumstances would occur for unique events and would not 
be regularly applied. If FHWA accepts the State DOT's explanation, FHWA 
classifies the progress toward achieving the relevant target(s) as 
``progress not determined,'' and those targets are excluded from the 
requirement to make significant progress toward the achievement of 
applicable targets.
    In addition, for the Interstate System pavement condition measures, 
Sec. Sec.  490.105(c)(1) and (c)(2), State DOTs are allowed to have no 
more than 5.0

[[Page 4859]]

percent of their Interstate System in poor condition. Alaska alone is 
not allowed to exceed 10.0 percent. The minimum condition requirements 
for Interstate pavements are described in Sec.  490.316. When a State 
DOT exceeds the minimum condition level for Interstate pavements, 
penalties apply, as described in Sec.  490.317. To determine if the 
penalty will apply, FHWA annually determines if the State DOT is in 
compliance with the minimum condition thresholds in Sec.  490.315(a) or 
Sec.  490.315(b) and 23 U.S.C. 119(f)(1).
    The five safety measures listed at Sec.  490.205 have a slightly 
different target setting and reporting framework than the other TPM 
measures in 23 CFR part 490. For the five safety measures, each 
performance measure is based on a 5-year rolling average, and targets 
are established annually consistent with Sec.  490.209. The State DOT 
targets are to be identical to the targets established by the State 
Highway Safety Office for common performance measures reported in the 
State's Highway Safety Plan, subject to the requirements of 23 U.S.C. 
402(k)(4), and as coordinated through the State Strategic Highway 
Safety Plan. The targets established by the State DOT are reported to 
FHWA in the State's Highway Safety Improvement Program (HSIP) annual 
report in accordance with 23 CFR part 924. As with the other measures, 
FHWA assesses the State DOT's progress toward the achievement of its 
safety targets. This assessment is commonly called the significant 
progress determination. If a State DOT fails to meet or make 
significant progress toward the achievement of four of the five safety 
targets, the State DOT must comply with 23 U.S.C. 148(i) for the 
subsequent three fiscal years. This means that State DOTs would be 
submitting a single HSIP Implementation Plan covering the next three 
fiscal years and must use their obligation authority equal to the 
apportionment of the State for the prior year for the next three fiscal 
years only for highway safety improvement projects. The FHWA invites 
comments on this proposed approach.

A. Summary of Expected Schedule for Implementation

    The FHWA understands that the timing of this rulemaking will impact 
performance cycle data submission. The FHWA will develop phase-in 
timeframe compliance dates and other implementation guidance at the 
conclusion of the rulemaking process. Under Subpart B, FHWA proposes to 
align the target setting performance cycle with NHTSA's final rule \1\ 
that sets forth two new requirements with respect to the safety 
performance targets set by the State Highway Safety Office (HSO): (1) 
States must develop a triennial HSP and (2) performance targets must 
demonstrate constant or improved performance. The proposed changes to 
the FHWA regulation would shift the reporting cycle of the HSIP 
performance targets from an annual to a triennial cycle.
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    \1\ Uniform Procedures for State Highway Safety Grant Programs 
Final Rule: https://www.federalregister.gov/documents/2023/02/06/2023-01819/uniform-procedures-for-state-highway-safety-grant-programs.
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    If this new regulatory language goes into effect, the next 
triennial cycle under these proposed revised requirements is expected 
to be for the HSIP safety performance targets reported in August 2024 
representing safety performance for calendar years 2025 through 2027, 
based on a 3-year average. However, this cycle will not align with 
NHTSA's current triennial cycle (2024-2026) for the safety performance 
targets submitted by State HSOs in their triennial Highway Safety Plans 
(3HSP) in July 2023. As a result, FHWA is seeking comment on how to 
approach aligning FHWA's triennial cycle with NHTSA's triennial cycle.
    One option would be for FHWA to require States to align with 
NHTSA's 2024-2026 triennial cycle in their August 2024 HSIP Annual 
Report. This would require States to retroactively report 2024 data for 
their first triennial cycle (2024-2026) in their August 2024 HSIP 
Annual Report. Under this option, States could choose to submit the 
established targets that SHSOs submitted to NHTSA in July 2023, or work 
with the SHSOs to reset the triennial targets so it is identical for 
the common safety performance measures.
    Another option for consideration would be to waive the requirement 
for identical performance targets between NHTSA and FHWA programs for 
CY 2025 and CY 2026 and have the State DOTs continue to submit annual 
safety performance targets based on 5-year averages (as per the current 
regulation) in their HSIP Annual Reports until NHTSA's next triennial 
cycle (2027-2029). This option would require State DOTs to first report 
identical targets for the common safety performance measures in their 
August 2026 HSIP Annual Report for CY 2027 through 2029, based on a 3-
year average, which would align with the safety performance targets 
submitted by State HSOs in the 3 HSP in July 2026. The FHWA 
specifically requests comments regarding this topic.

II. Section-by-Section Discussion of the Proposed Changes

    The FHWA proposes substantive changes to three subparts of 23 CFR 
part 490: Subpart A--General Information, which applies to all of the 
regulations throughout part 490; Subpart B--National Performance 
Management Measures for the Highway Safety Improvement Program; and 
Subpart E--National Performance Management Measures to Assess 
Performance of the National Highway System. This section of the 
preamble describes the proposed changes and the reasons behind them. 
The FHWA has also proposed several non-substantive changes throughout 
the regulatory text to remove the phrase ``and/or'' and replace it with 
``and'' or ``or'', as appropriate, to provide increased clarity. The 
proposed rule would apply to the 50 States, the District of Columbia, 
and Puerto Rico consistent with the definition of the term ``State'' in 
23 U.S.C. 101(a). The FHWA has included questions to the public on 
issues where comments may be particularly useful in facilitating 
implementation of the proposals.

A. Subpart A--General Information

Section 490.103 Data Requirements
    The FHWA proposes to add Sec.  490.103(h) to allow a temporary 
extension of any date within the part for good cause, unless an 
extension of that date is prohibited by law. The FHWA desires to have, 
and be able to exercise, flexibility when unforeseen circumstances 
arise that would cause undue hardship on the State DOTs or Metropolitan 
Planning Organizations (MPO) when complying with the provisions in this 
part.
Section 490.107 Reporting on Performance Targets
    The FHWA proposes to revise paragraphs of Sec.  490.107 to align 
with section 21104(c) of the BIL, which amended the State Freight Plan 
requirements of 49 U.S.C. 70202(e). State DOTs are now required to 
update their State Freight Plans every 4 years, as opposed to the 5 
years that were required by the FAST Act. Congress made this change 
through BIL to better align the timing of State Freight Plan updates 
with other State transportation planning efforts, including the TPM 
Program established under MAP-21. Since BIL created a 4-year update 
cycle for State Freight Plans, there will now be an updated State 
Freight Plan within each 4-year TPM reporting cycle.
    The FHWA is proposing to remove the text in Sec. Sec.  
490.107(b)(1)(ii)(E) and 490.107(b)(2)(ii)(D) that requires a State

[[Page 4860]]

Freight Plan prepared under 49 U.S.C. 70202 be done within the previous 
2-years for it to be used as the basis for identifying freight 
bottlenecks and addressing congestion at truck freight bottlenecks in 
the biennial report. The FHWA's proposal would allow the most recent 
State Freight Plan prepared under 49 U.S.C. 70202 to be used.
    In Sec.  490.107(b)(2)(ii)(D), for the Mid and Full Performance 
Period Progress Report, if the State Freight Plan has not been updated 
in the last 2 years, ``then an updated analysis of congestion at truck 
freight bottlenecks must be completed.'' Some State DOTs misinterpreted 
this as requiring the submission of an updated bottleneck list. The 
FHWA is proposing revisions to clarify FHWA's expectation State DOTs 
will identify bottlenecks at the baseline and will provide a discussion 
of progress toward addressing congestion at those points in the Mid and 
Full Performance Period Progress Reports. The proposed change is 
intended to clarify expectations but not change them.
    In addition, as part of the Mid and Full Performance Period 
Progress Reports, the State DOT must discuss their efforts to address 
congestion at truck freight bottlenecks and the State Freight Plan may 
serve as the basis for discussing how congestion has been addressed at 
truck freight bottlenecks. The FHWA is proposing to add language to 
Sec.  490.107(b)(2)(ii)(D) to clarify that the State DOT needs to 
update the information from the previous State Biennial Performance 
Report. If the information in the previous State Biennial Performance 
Report was from the current State Freight Plan, this information needs 
to be reviewed and updated as necessary with the next State Biennial 
Performance Report. This clarification is consistent with FHWA's 
existing guidance.
    The FHWA has also proposed a technical correction to Sec.  
490.107(b)(2)(ii)(D) and 490.107(b)(3)(ii)(D). The FHWA is proposing to 
change ``. . . paragraph (b)(1)(ii)(F) . . .'' to ``. . . paragraph 
(b)(1)(ii)(E) . . .'' in both locations.
Section 490.109 Assessing Significant Progress Toward Achieving the 
Performance Targets for the National Highway Performance Program and 
the National Highway Freight Program
    The FHWA proposes to add specificity to the paragraph reference in 
Sec.  490.109(e)(4)(ii) from (d)(1) to (d)(1)(i), and revise the 
paragraph reference in Sec.  490.109(e)(4)(iv) from (d)(3) to 
(d)(1)(iii). These are technical corrections to the cross references 
and do not change the intent of the regulations.
    The FHWA proposes to correct the paragraph reference in Sec.  
490.109(e)(4)(iii) from (d)(2) to (d)(1)(ii), and correct Sec.  
490.313(b)(4)(i) by changing it to Sec.  490.313(b)(4)(ii) to align 
with the changes proposed to Sec.  490.313(b)(4). These are technical 
corrections that are not intended to change the requirements in Sec.  
490.109(e)(4)(iii).
    The FHWA proposes to revise Sec.  490.109(e)(4)(v) to clarify 
FHWA's 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. This approach was previously documented in the preamble for the 
2017 Final Rule for the pavement and bridge performance measures.\2\ 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 a 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. The proposed revision to the regulatory text is a technical 
correction that does not change the intent or application of the 
regulation.
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    \2\ National Performance Management Measures; Assessing Pavement 
Condition for the National Highway Performance Program and Bridge 
Condition for the National Highway Performance Program [RIN 2125-
AF53], 82 FR 5886 at page 5921 (January 18, 2017).
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    The FHWA proposes to amend Sec.  490.109 by adding a new paragraph 
(e)(5)(ii)(D) providing that an applicable extenuating circumstance 
includes a presidentially declared national emergency, which would 
cover events such as national public health emergencies. With various 
governmental units and agencies possibly having the ability to declare 
disasters, FHWA proposes to clarify in Sec.  490.109 that natural or 
man-made disasters must be declared under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act. The inclusion of this 
regulatory language is necessary to enable State DOTs to request relief 
from the requirements for not making significant progress toward 
achieving their performance targets because of extenuating 
circumstances due to the impacts of a presidentially declared national 
emergency. This new extenuating circumstance would apply to progress 
requirements under the NHPP and the NHFP. As with the current allowance 
for existing extenuating circumstances, State DOTs would be required to 
provide sufficient evidence showing how the adverse impacts limited 
their ability to meet performance expectations in order to receive 
regulatory relief.
    When originally drafted, a national public health emergency was not 
contemplated. The proposed addition of national emergency is intended 
to address this gap but is not expected to substantially change the 
types of allowable extenuating circumstances, nor is it expected to 
substantially increase the number of times extenuating circumstances 
are applied. Thus, FHWA has estimated this would result in a nominal 
reduction in burden.
    It is possible that the extenuating circumstances listed in Sec.  
490.109(e)(5) may also impact a State DOT's ability to supply 
sufficient data or information, as required in Sec.  490.109(e)(4). The 
FHWA has not proposed additional language to specify that a national 
emergency or any other extenuating circumstance will be considered in 
relation to FHWA's significant progress determination due to 
insufficient data or information, because it is already addressed by 
Sec.  490.109(e)(5)(ii).
    The FHWA is proposing to revise terms in Sec.  
490.109(f)(2)(iii)(A) to align with the HPMS as reflected in the 
updated HPMS Field Manual and incorporated by reference as part of this 
NPRM. See the section-by-section discussion in Sec.  490.111 for 
further information on the proposed changes related to HPMS.
Section 490.111 Incorporation by Reference
    The FHWA is proposing to restructure this section to conform with 
new Office of the Federal Register formatting requirements The FHWA is 
proposing updating the HPMS Field Manual that is currently incorporated 
by reference in Sec.  490.111(b)(1). and included in the docket for 
this NPRM. The FHWA's HPMS software was updated to version 9, and the 
associated database fields that impact TPM were modified to address 
necessary changes identified in the 2018 HPMS Reassessment. The HPMS 
Field Manual was similarly updated to improve readability and reflect 
changes made to the HPMS software, processes, and table structures, as 
well as to data items, estimate types, and metadata. The

[[Page 4861]]

regulations in part 490 contain several specific HPMS field names to 
ensure consistency in the data over time. Thus, it was necessary to 
update the individual instances in the regulation. The FHWA does not 
expect the field name changes within HPMS to present a burden to State 
DOTs when complying with the requirements of this part.
    The proposed changes within the regulation to align with the terms 
in the incorporated HPMS Field Manual are:

Route_ID to RouteID
Begin_Point to BeginPoint
End_Point to EndPoint
Year_Record to BeginDate
Value_Date to ValueDate

    Inventory data elements--This summary term was removed from the 
HPMS Field Manual. Where used in the regulation, FHWA is proposing 
replacing it with the specific data elements it represented.
    The FHWA is proposing to remove the American Association of State 
Highway and Transportation Officials (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, in Sec.  490.111(c)(3) since it has 
been withdrawn by AASHTO. The HPMS Field Manual addresses automated rut 
data collection methods so no additional AASHTO Standards are needed at 
this time.
    The FHWA is proposing to update the AASHTO Standard in Sec.  
409.111(c)(4) from R36-13 to R36-21, Standard Specification for 
Transportation Materials and Methods of Sampling and Testing, Standard 
Practice for Evaluating Faulting of Concrete Pavements. This update to 
the Standard retains the two methods for measuring and calculating 
faulting using automated measurement devices. The most notable change 
to the new Standard is the incorporation of an acceptable third method 
for calculation of faulting using 3D techniques. This Standard is less 
restrictive than the original. A corresponding change is proposed in 
Sec.  490.309(b)(3)(vii).
    When FHWA published its first Transportation Performance Management 
Final Rule on March 15, 2016, at 81 FR 13882, it incorporated by 
reference at Sec.  490.111(d) the ANSI D16.1-2007, Manual on 
Classification of Motor Vehicle Traffic Accidents (7th edition, 
approved August 2, 2007), and at Sec.  490.111(e) the DOT's DOT HS 811 
631, Model Minimum Uniform Crash Criteria (MMUCC) Guideline, (4th 
edition, July 2012). With the publication of the subsequent TPM rules 
on January 18, 2017, at 82 FR 5886 and 82 FR 5971, Sec.  490.111(d) and 
(e) were inadvertently left out of the revised iterations of this 
section; however, there was no indication of the Agency's intent to 
remove the incorporation by reference of either publication given that 
the references remain in other sections of subpart B. The FHWA proposes 
to restore the ANSI and DOT paragraphs to reflect the incorporation of 
the publications, while updating ANSI D.16-2007 to ANSI D.16-2017 and 
the MMUCC to the 6th edition, which State DOTs are required to use for 
the definition for Suspected Serious Injury. Both documents are 
available for review on the docket for this rulemaking.

B. Subpart B--National Performance Management Measures for the Highway 
Safety Improvement Program

Section 490.205 Definitions
    The FHWA proposes to revise five definitions to provide clarity and 
consistency for each as related to the regulation and to remove one 
definition that is no longer necessary. The purpose of the revisions is 
to clarify the terms and definitions.
    The FHWA proposes to revise the term for ``5-year rolling average'' 
to ``3-year average'' and to revise the definition to align with the 
proposed shift to triennial (every 3 years) performance targets. The 
FHWA proposes to remove the term ``rolling'' to align with the proposed 
shift from establishing performance targets every year to establishing 
performance targets every 3 years to cover a 3-year period.
    The FHWA proposes to establish a definition for `baseline safety 
performance' to allow for a single term that can be used consistently 
in 23 CFR part 490 subpart B. The proposed term is consistent with the 
term used in 23 CFR 490.213(d), the definition is consistent with how 
the concept is currently applied in 23 CFR 490.211(c)(2)(ii), and would 
not change the requirements of the existing regulation.
    The FHWA proposes to revise the definition for ``Fatality Analysis 
Reporting System (FARS)'' to align with the NHTSA definition in 23 CFR 
1300.3.
    The FHWA proposes to revise the definition for ``Number of non-
motorized fatalities'' to remove the attribute code numbers and to 
further clarify the person types under ``Persons on Personal 
Conveyances'' to align with the coding change that was made to the 
person attribute code in the Fatality Analysis Reporting System 
(FARS).\3\
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    \3\ National Highway Traffic Safety Administration Fatality 
Analysis Reporting System: https://www.nhtsa.gov/research-data/fatality-analysis-reporting-system-fars.
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    The FHWA proposes a minor technical edit to the definition for 
``Number of non-motorized serious injuries'' to correct the spelling of 
``pedalcyclist'' in the definition.
    The FHWA proposes to revise the definition for ``Number of serious 
injuries'' to remove the reference to KABCO and the use of conversion 
tables. This requirement is no longer applicable as the KABCO scale is 
no longer used for this purpose.
    The FHWA proposes to revise the definition for ``serious injuries'' 
to remove the references to KABCO and conversion tables, as well as the 
reference to April 15, 2019. This requirement is no longer applicable 
as the KABCO scale is no longer used for this purpose.
    The FHWA proposes to remove the term and definition for ``KABCO'' 
to align with the proposed changes that no longer require the use of 
the term.
Section 490.207 National Performance Management Measures for the 
Highway Safety Improvement Program
    The FHWA proposes to revise Sec.  490.207(b) to replace ``5-year 
rolling average'' with ``3-year average'' to align with the proposed 
shift to establish performance targets every 3 years. In addition, in 
Sec.  490.207(b)(1) through (5), FHWA proposes to change each instance 
of the term ``five'' to ``three'' to correspond with the changes to the 
years and calculations for changing to a 3-year average. The FHWA 
proposes to clarify each instance of ``target'' to ``performance 
target'' for consistency and clarity. This revision also occurs 
throughout Sec. Sec.  490.207, 490.209, 490.211, and 490.213, but only 
this first instance is being documented here as it is a minor technical 
edit being made throughout the regulation. These proposed changes are 
expected to be a minimal burden to the State DOTs as it reduces the 
number of years of data required from 5 years to 3 years.
    The FHWA proposes to remove Sec.  490.207(c) as the requirement for 
State DOTs to report serious injuries by the April 15, 2019, deadline 
has passed, and the KABCO scale is no longer used for this purpose.
Section 490.209 Establishment of Performance Targets
    The FHWA proposes to revise Sec.  490.209(a) so State DOTs would 
shift from establishing performance targets

[[Page 4862]]

annually to triennially (every 3 years) for each performance measure. 
The purpose of this change is to align with DOT's National Roadway 
Safety Strategy (NRSS),\4\ which sets an ambitious long-term goal of 
reaching zero fatalities. By providing a longer duration between 
performance cycles, States will have a greater opportunity to plan and 
implement safety countermeasures and evaluate the outcome and 
effectiveness of performance targets. This change to submit performance 
targets triennially also supports NHTSA's requirement under section 
24102 of the BIL for States to submit a triennial Highway Safety Plan 
(HSP). The NHTSA has implemented this provision through a final rule 
published February 6, 2023, at 88 FR 7780. This change is necessary as 
it aligns with the State DOTs' requirement to report identical 
performance targets for three common measures between the HSIP and the 
triennial HSP. This proposed change is expected to be a minimal burden 
to the State DOTs as it reduces the requirement from reporting annually 
to triennially.
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    \4\ DOT's National Roadway Safety Strategy: https://www.transportation.gov/NRSS.
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    The FHWA proposes to revise Sec.  490.209(a)(2) to reflect the 
proposed change to triennial performance targets, as well as add 
language that specifies when the first triennial performance target 
shall be established. In addition, FHWA proposes to change reporting 
from the ``HSIP annual report'' to ``reported to the FHWA.'' This 
proposed change is expected to be of minimal burden to State DOTs as it 
reduces the requirement from reporting annually to triennially.
    The FHWA proposes to remove Sec.  490.209(a)(4) and replace it with 
a new requirement for State DOTs to establish performance targets that 
``demonstrate constant or improved performance from the baseline safety 
performance.'' This proposed requirement addresses the recent increase 
in fatalities by requiring performance targets to offer realistic 
expectations toward achieving the long-term goal of zero roadway 
fatalities, which is consistent with DOT's NRSS. This requirement also 
aligns with NHTSA's requirement under section 24102 of the BIL (23 
U.S.C. 402(k)(4)(A)(ii)) that performance targets submitted as part of 
the triennial HSP demonstrate constant or improved performance. 
Although BIL did not make a similar amendment to the performance 
management requirements in 23 U.S.C. 148, there is no indication that 
Congress was attempting to undermine or change FHWA's and NHTSA's 
regulations that require identical performance targets for the three 
common measures. Likewise, there is nothing in Title 23 that prohibits 
FHWA from adopting the same ``constant or improved performance'' 
standard required by section 24102. Given the national crisis of 
fatalities on our roadways, FHWA believes it is good public policy to 
have the same requirement for its Safety Performance Management 
Program. The NHTSA has implemented this provision through a final rule 
published February 6, 2023, at 88 FR 7780. This proposed change is 
necessary as it aligns with the State DOTs' requirement to report 
identical performance targets for three common measures between HSIP 
and triennial HSP. This revision may impact the State DOTs that have 
set increasing performance targets in prior years as it may result in a 
shift in the methodology used to establish performance targets. 
However, requiring identical performance targets is consistent with the 
national safety goals Congress established for the Federal-aid highway 
program and NHTSA's highway safety program: To reduce traffic 
fatalities and serious injuries (in the case of FHWA) and to reduce 
traffic accidents and the resulting deaths, injuries, and property 
damage (in the case of NHTSA) (23 U.S.C. 150(b)(1) and 23 U.S.C. 
402(a)). Furthermore, allowing a State to establish two different 
safety performance targets for common performance measures would be 
inefficient and could lead to public confusion. Separate performance 
targets could also be a burden on States by possibly requiring the 
collecting and reporting of two different sets of data for common 
performance measures in an HSIP and triennial HSP.
    The FHWA proposes to remove Sec.  490.209(a)(5), as the portion of 
this requirement related to use of the KABCO system in lieu of 
compliance with MMUCC is no longer applicable. In addition, the portion 
of this section that relates to reporting has been updated in Sec.  
490.213.
    The FHWA proposes to shift Sec.  490.209(a)(6) to Sec.  
490.209(a)(5) and revise Sec.  490.209(a)(6) to change ``submitted in 
the HSIP annual report'' to ``submitted to the FHWA'' to align with 
paragraph (a)(2). The FHWA is not expecting State DOT performance 
targets to change for a given triennial cycle once submitted to FHWA. 
This is consistent with FHWA's current practice, in which safety 
performance targets cannot be changed once submitted to FHWA.
    The FHWA proposes to revise Sec.  490.209(b)(1) to remove reference 
to ``HSIP annual report'' to align with Sec.  490.209(a)(2).
    The FHWA proposes to remove Sec.  490.209(b)(4) as this requirement 
is addressed under reporting in Sec.  490.213.
    The FHWA proposes to revise Sec.  490.209(c) to add the word 
``triennially'' for establishing performance targets for MPOs to align 
with the shift from annual to every 3 years.
    The FHWA proposes to revise Sec.  490.209(c)(1) to change ``HSIP 
annual report'' to ``the FHWA'' to align with the update to Sec.  
490.209(a)(2).
    The FHWA proposes to revise Sec.  490.209(c)(4)(i) to remove the 
term ``safety'' target and replace it with ``performance'' target for 
clarity and consistency.
    The FHWA proposes to revise Sec.  490.209(c)(4)(ii) to remove the 
term ``safety'' target and replace it with ``performance'' target for 
clarity and consistency and to add the language ``demonstrate constant 
or improved performance'' to align with Sec.  490.209(a)(4).
Section 490.211 Determining Whether a State Department of 
Transportation Has Met or Made Significant Progress Toward Meeting 
Performance Targets
    The FHWA proposes to revise Sec.  490.211(b) to add the term 
``annual'' to ``HSIP report'' for clarity and consistency and to add 
the word ``prepared'' before ``in accordance with.''
    The FHWA proposes to revise Sec.  490.211(c)(2) to use the newly 
defined ``baseline safety performance'' in place of ``3-year average 
data for the performance measure for the year prior to the 
establishment of the State's performance target.'' This would not 
change the existing process.
    The FHWA proposes to revise Sec.  490.211(d) to add the number 
``3'' prior to ``fiscal years'' to align with the shift to triennial 
performance targets.
    The FHWA proposes to revise Sec.  490.211(e) to change ``first 
evaluate'' to ``determine'' and to change ``after the calendar year 
following the year'' to ``following the last calendar year'' and change 
``annual'' to ``triennially.'' These proposed changes align with the 
revisions under Sec.  490.209(a)(2).
    The FHWA proposes to add a new Sec.  490.211(f) to address the 
phased in implementation of the requirements that will enable the 
performance targets established for 2023 to continue to be assessed to 
determine met or made significant progress by 2025.

[[Page 4863]]

    The FHWA proposes to add a new Sec.  490.211(g) to address 
insufficient data or information. The purpose of this requirement is to 
inform States that if they are not able to provide the necessary data 
in the HSIP annual report for the purposes of the performance target 
assessment that they will be deemed to have not met or made significant 
progress.
    The FHWA proposes to add a new Sec.  490.211(h) to consider 
extenuating circumstances in the assessment of progress toward met or 
made significant progress of triennial performance targets. In 
addition, FHWA proposes to add Sec.  490.211(h)(1) to clarify that FHWA 
will classify the assessment of progress toward the triennial 
performance 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 meeting or making 
significant progress and the State DOT has quantified the impacts on 
the performance that resulted from the circumstances to include: (i) 
Natural or man-made disasters that caused delay in data collection; 
(ii) [Reserved] (iii) New law or regulation directing State DOTs to 
change metric or measure calculation; or (iv) Presidentially declared 
national emergency that impacts the collection or submittal of data. 
The circumstances added are intended to mirror those in Sec.  
490.109(e)(5)(i). With various governmental units and agencies possibly 
having the ability to declare disasters, FHWA proposes to clarify in 
Sec.  490.211 that natural or man-made disasters must be declared under 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act. In 
order to keep most of the section numbering consistent with Sec.  
490.109(e)(5)(i), FHWA is proposing to reserve Sec.  490.211(h)(1)(ii) 
since FHWA does not provide any data associated with the safety 
performance measure.
    The FHWA also proposes to add a new Sec.  490.211(h)(2) that 
explains that if the State DOTs explanation is accepted by FHWA, then 
the progress toward achieving the relevant performance targets will be 
classified as ``progress not determined.'' These proposed changes are 
not expected to be a burden to the State DOTs; however, there may be a 
moderate impact on the burden to any State DOT that decides to pursue 
the option to provide documentation to quantify the impact resulting 
from the extenuating circumstance.
Section 490.213 Reporting of Performance Targets for the Highway Safety 
Improvement Program
    The FHWA proposes to revise the title of Sec.  490.213 to add the 
word ``performance'' before ``targets'' for clarity and consistency.
    The FHWA proposes to revise Sec.  490.213(a) to remove ``in the 
State's HSIP annual report'' and specify the first due date as ``[Date 
to be inserted], and then triennially thereafter.'' The purpose of this 
change is to align with the proposed change to shift to triennial 
performance targets. The FHWA will reflect a specific first due date 
that will align with the appropriate performance cycle during the 
rulemaking process.
    The FHWA proposes to add a new Sec.  490.213(b) to specify that 
State DOTs shall report on actual performance annually in the HSIP 
annual report and the minimum amount of data that is required. The 
purpose of this change is to move this information that was originally 
under Sec.  490.209 for the establishment of performance targets to 
reporting of performance targets in the HSIP. The FHWA proposes to also 
shift the original paragraphs (b) and (c) to now be (c) and (d).
    The FHWA proposes to revise old paragraph (b) to now be (c) and to 
change ``annually'' to ``triennially'' to align with the proposed shift 
to establish performance targets every 3 years.
    The FHWA proposes to revise old paragraph (c) to now be (d) and 
delete the word ``safety'' from ``safety performance'' for clarity and 
consistency.

C. Subpart C--National Performance Management Measures for the 
Assessing Pavement Condition

Section 490.309 Data Requirements
    The FHWA is proposing revisions to Sec.  490.309(a) to remove 
`inventory data elements' here, as well as from all 23 CFR part 490, 
since that term and associated grouping is not in the incorporated HPMS 
Field Manual. In addition, FHWA is proposing a technical correction to 
include underscores in `Through_Lanes,' `Surface_Type,' and 
`Structure_Type,' consistent with other parts of the regulation. The 
FHWA also is proposing corrections to Sec.  490.309(c) to include 
underscores in the same terms. These corrections are not expected to 
change implementation of the associated requirements.
    The FHWA is proposing amending Sec. Sec.  490.309(b)(1)(i)(B), 
(b)(2)(i)(B), and (b)(2)(ii)(B) to clarify that when the right most 
lane is not readily accessible due to a listed issue, then the adjacent 
lane is to be used; not any open lane. This will align the regulation 
with existing guidance.
    The FHWA is proposing to amend Sec. Sec.  490.309(b)(1)(iv)(A) and 
(b)(2)(iii)(A) so the numbers `0 to 5' would be shown to the tenths 
decimal place, `0.1 to 5.0', to be consistent with how the data is 
entered in HPMS.
    The FHWA is proposing to revise Sec.  490.309(b)(3)(vi) and remove 
(b)(3)(vi)(A) and (B). The FHWA is proposing to remove Sec.  
490.309(b)(3)(vi)(A) because AASHTO has withdrawn Standard R48 that 
provided guidance for this type of data collection. As a result, States 
will be required to use the methods identified in the HPMS Field Manual 
when collecting rutting data on the National Highway System (NHS).
    The FHWA is proposing to revise Sec.  490.309(b)(3)(vii) to change 
the incorporated AASHTO Standard from `R36-13' to `R36-21.' The AASHTO 
Standard R36-21 is an update to Standard R36-13, which retains the two 
methods for measuring and calculating faulting using automated 
measurement devices. The major change from the old standard to the new 
standard is the incorporation of an acceptable third method for 
calculation of faulting.
Section 490.311 Calculation of Pavement Metrics
    The FHWA is proposing changes to Sec.  490.311(a) to remove 
`inventory data elements' since that term and associated grouping is 
not in the proposed HPMS Field Manual.
    The FHWA is proposing to amend Sec.  490.311(b)(5)(ii) so the 
numbers `0 to 5' would be shown to the tenths decimal place, `0.1 to 
5.0', to be consistent with how the data is entered in HPMS.
    The FHWA is proposing to revise the HPMS field names in Sec.  
490.311(c)(3)(i), (c)(3)(ii), and (c)(3)(iii) so they are consistent 
with the updated HPMS system, and the HPMS Field Manual.. The FHWA also 
proposes to add specificity to clarify that the `BeginDate' shall be 
reported as required in the HPMS Field Manual. The term changes 
proposed are:

State_Code to StateID,
Route_ID to RouteID
Begin_Point to BeginPoint
End_Point to EndPoint
Year_Record to BeginDate
Value_Date to ValueDate.

    These changes are to provide consistency with the terms used in the 
incorporated HPMS Field Manual and are not expected to change the 
burden associated with complying with the regulations.

[[Page 4864]]

    The FHWA proposes to revise Sec. Sec.  490.311(d), (d)(1), (d)(2), 
and (d)(3) to change the term `inventory data elements' to `data 
items,' and change `inventory data items' to `data items.' These 
changes are needed to be consistent with the incorporated HPMS Field 
Manual, which no longer uses these terms.
Section 490.313 Calculation of Performance Management Measures
    The FHWA is proposing changes to Sec.  490.313(b)(4) and its 
paragraphs to clarify the intended application of the regulation by 
rewording and reorganizing the text and providing cross references to 
existing requirements for data submittal dates. No new requirements or 
processes are proposed, and the clarifications are consistent with 
FHWA's existing guidance related to missing, invalid, or unresolved 
data. The FHWA also proposes updating terms in Sec. Sec.  
490.313(b)(v)(i) through (vii) to align with those used in the 
incorporated HPMS Field Manual, and correcting reference numbering 
related to Sec.  490.109(d) in Sec.  490.313(b)(v). Together these 
changes are not expected to change the implementation of the 
requirements.
    In Sec.  490.313(f)(2) through (5), FHWA is proposing to remove the 
underscore from the terms ``End_Point'' and ``Begin_Point'' so it is 
consistent with the fields in the incorporated HPMS Field Manual.
Section 490.317 Penalties for Not Maintaining Minimum Interstate System 
Pavement Condition
    The FHWA proposes to amend Sec.  490.317(c) by adding a new Sec.  
490.317(c)(1) providing that FHWA can use the previous years' 
determination of compliance with the minimum condition requirements in 
Sec.  490.315(a) or Sec.  490.315(b) and 23 U.S.C. 119(f)(1) if FHWA 
determines a State DOT is not in compliance due to an extenuating 
circumstance listed in Sec.  490.109(e)(5) related to the collection or 
submittal of data. Accurate data is required to make the compliance 
determination, and FHWA cannot waive the determination. During the 
COVID-19 pandemic, FHWA identified that it was possible that some State 
DOTs would be unable to collect pavement condition data because of 
COVID-19 related social distancing requirements. The FHWA is proposing 
to add Sec.  490.317(c)(1) to allow FHWA to consider extenuating 
circumstances in their determination when sufficient data is not 
provided. State DOTs would need to notify FHWA of any applicable 
extenuating circumstances it would like FHWA to consider by June 15 of 
each year, as proposed in Sec.  490.317(c)(2).
    This additional flexibility would allow State DOTs to provide an 
explanation of the conditions beyond their control that impeded their 
ability to submit the data needed to calculate the pavement performance 
measures and determine minimum condition. This action will allow State 
DOTs to cite one of the extenuating circumstances in Sec.  
490.109(e)(5) and explain how it impacted their ability to collect or 
submit data. As with the use of extenuating circumstances in the 
significant progress determination, there would need to be sufficient 
evidence showing how the adverse impacts limited a State DOT's ability 
to meet the data collection and submittal requirements. If a State DOT 
provides an acceptable explanation of extenuating circumstances by June 
15, FHWA would apply the previous year's determination to the 
determination for the current year.
    Including this additional flexibility as part of FHWA's compliance 
determination for 23 U.S.C. 119(f)(1) would align with the intent of 
extenuating circumstances and its application within the significant 
progress determination process. The FHWA has determined this is an 
appropriate and necessary action but does not anticipate this to be 
used in the near-term.
    The FHWA is not proposing a similar amendment to Sec.  490.413, 
which relates to penalties for not maintaining minimum bridge 
conditions. Bridges are inspected every 2 years. If a bridge is not 
inspected due to an unforeseen issue, the existing National Bridge 
Inspection (NBI) data is used for FHWA's determination of compliance 
with 23 U.S.C. 119(f)(2). In addition, the penalty for not maintaining 
minimum bridge condition, described in Sec.  490.413, is assessed using 
data for the previous 3 years. These items provide flexibilities not 
available to the Interstate System pavement condition measures.
Section 490.319 Other Requirements
    Section 490.319(c)(1) describes the minimum methods and processes 
the State DOTs shall include in their Data Quality Management Programs. 
The FHWA proposes to revise Sec.  490.319(c)(1)(ii) to strike the word 
``manual'' from the requirement to certify persons conducting data 
collection. A certification process was required in the original rule 
for the equipment and for individuals doing manual data collection but 
omitted equipment operators and other persons working in data 
collection. This change extends the certification to all persons 
conducting data collection including equipment operators. Network level 
data collection is done almost completely using automated equipment. 
Since the process for data collection is complex and the equipment is 
costly, every State already has process for training operators and 
other persons working in data collection even though there has not been 
a requirement to do so. A minor update to the Data Quality Management 
Plan for the State may be needed to describe the training program and 
certification process if it is not already in the Plan. The FHWA seeks 
comment from any State DOTs that do not already require training for 
those collecting data and operating associated equipment.

D. Discussion Under 1 CFR Part 51

    The FHWA is proposing to incorporate by reference the following 
standards:
    The FHWA will incorporate by reference an updated version of the 
HPMS Field Manual. The proposed HPMS Field Manual includes detailed 
information on technical procedures to be used as reference by those 
collecting and reporting data for the performance measures. The FHWA's 
HPMS software was updated to version 9, and the associated database 
fields that impact TPM were modified to address necessary changes. The 
updated HPMS Field Manual is included on the docket for this rulemaking 
and will be made available on the FHWA website once adopted.
    The FHWA will incorporate by reference AASHTO Standard R36-21, 
Standard Practice for Evaluating Faulting of Concrete Pavements, 41st 
edition, 2021. This Standard provides a consistent means for 
identifying and reporting concrete pavement faults. The AASHTO standard 
is proposed because it is considered a best practice, specifically by 
State DOTs, and is recognized worldwide. This document is available at 
https://store.transportation.org/Item/PublicationDetail?ID=4612 and on 
the docket for this rulemaking.
    The FHWA will incorporate by reference ANSI D.16-2017, Manual on 
Classification of Motor Vehicle Traffic Crashes, eight edition, 
approved December 18, 2017. The primary purpose of ANSI D.16-2017 is to 
promote uniformity and comparability of motor vehicle crash statistics 
in Federal, State, and local jurisdictions. The uniformity of reporting 
that results from this standard facilitates development of data on 
crashes in and

[[Page 4865]]

out of traffic for nationwide use. Such data becomes the basis for 
decisions about traffic safety initiatives throughout the country. This 
document is available at https://www.transportation.gov/government/traffic-records/updated-ansi-d16-manual-classification-motor-vehicle-traffic-crashes, and on the docket for this rulemaking.
    The FHWA will incorporate by reference DOT HS 813 525 (``MMUCC''), 
Model Minimum Uniform Crash Criteria Guideline, 6th edition, 2024.. The 
MMUCC can help States generate the data necessary to quickly gain 
traffic safety insights. The guide is available at https://www.nhtsa.gov/mmucc-1 and on the docket for this rulemaking.
    The documents that FHWA is incorporating by reference are 
reasonably available to interested parties, primarily State DOTs, local 
agencies, and Tribal governments carrying out Federal-aid highway 
projects, and federally required data reporting. The incorporated HPMS 
Field Manual represents the reporting requirements of the HPMS system. 
The AASHTO manual, MMUCC, and Manual on Classification of Motor Vehicle 
Traffic Accidents represent the most recent refinements that 
professional organizations have formally accepted and are currently in 
use by the transportation industry. The documents incorporated by 
reference are available on the docket of this rulemaking and at the 
sources identified in the regulatory text below. The specific standards 
are discussed in greater detail elsewhere in this preamble.

III. Additional Requests for Comments

     The MAP-21 legislation required FHWA to develop a uniform 
method for States to measure and report pavement conditions indicating 
investment needs and mobility on the Interstate and non-Interstate NHS. 
This methodology is contained in Sec.  490.313 and uses the HPMS for 
reporting pavement conditions. After experiencing the first 5 years of 
collecting and reporting this information, FHWA invites comments on the 
effectiveness of the methodology for the intended purposes and 
suggestions to improve the required measurement and reporting.
     To minimize the amount of missing pavement data reported 
to HPMS, the current regulations direct States to collect condition 
information from another lane when the right most lane is closed due to 
construction, closure, excessive congestion, or other events impacting 
access. Some States have indicated difficulties collecting condition 
information in areas under construction due to bridge replacements, 
detours, or other circumstances. The FHWA invites comments on how to 
best collect and report the required information in these challenging 
situations.
     For the purpose of carrying out 23 U.S.C. 148, the 
Secretary is required to establish measures for States to use to assess 
(A) serious injuries and fatalities per vehicle mile traveled; and (B) 
the number of serious injuries and fatalities (23 U.S.C. 150(c)(4)). 
The FHWA is seeking comments on possible alternative safety performance 
measures that could be used to assess safety performance related to the 
HSIP. These performance measures should be directly related to the 
State's HSIP and help provide quantifiable evidence toward progress of 
safety performance. These performance measures may evaluate the outputs 
(quantitative and indicate the level of activity or effort) or outcomes 
(provide an indication of effectiveness) resulting in the 
implementation of the HSIP. The FHWA also seeks comment on whether FHWA 
should maintain the existing safety performance measures, replace the 
existing safety performance measures with alternative safety 
performance measures, or use some combination of both to assess future 
safety performance.
     The existing TPM measures for pavement and bridge 
condition in 23 U.S.C. 150(c)(3) are limited to the Interstate and NHS. 
However, there is also considerable need on the non-NHS system for 
infrastructure improvements. For example, approximately 90 percent of 
the bridges in poor condition in the 2022 National Bridge Inventory 
dataset are non-NHS bridges. Would State DOTs and MPOs benefit from the 
creation of national performance measures for the non-NHS system? For 
non-NHS bridges, condition data is already collected and reported 
annually to FHWA and can be used to set targets and report on 
performance. For non-NHS pavement performance, FHWA collects condition 
data on a sample of these roadways in each State. What would be 
reasonable measures, target setting timelines, data collection methods, 
reporting frequency, and reporting methods for any non-NHS measures? If 
such national performance measures are created, what would be needed to 
collect, report, and analyze non-NHS data and implement such a program?

IV. Rulemaking Analyses and Notices

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), E.O. 14094 
(Modernizing Regulatory Review), and DOT Regulatory Policies and 
Procedures

    The FHWA has considered the impacts of this proposed rule under 
E.O. 12866 (58 FR 5173, Oct. 4, 1993), Regulatory Planning and Review, 
as supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving 
Regulation and Regulatory Review and E.O. 14094 (88 FR 21879, April 6, 
2023), Modernizing Regulatory Review, and DOT's regulatory policies and 
procedures. The Office of Information and Regulatory Affairs within the 
Office of Management and Budget (OMB) has determined that the proposed 
rule is not a significant regulatory action within the meaning of E.O. 
12866. Accordingly, OMB has not reviewed it under that E.O.
    It is anticipated that the proposed rule would not be economically 
significant for purposes of E.O. 12866. The proposed rule would not 
have an annual effect on the economy of $200 million or more. The 
proposed rule would not adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
Tribal governments or communities. In addition, the proposed changes 
would not interfere with any action taken or planned by another Agency 
and would not materially alter the budgetary impact of any 
entitlements, grants, user fees, or loan programs.

B. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule 
on small entities and has determined that it is not anticipated to have 
a significant economic impact on a substantial number of small 
entities. For FHWA's significant progress determination in Sec.  
490.109(e) and for the minimum condition requirements for Interstate 
pavements in Sec.  490.317, the proposed rule would affect State 
governments, but not MPOs since MPOs are not subject to these 
requirements. State governments are not included in the definition of 
small entity set forth in 5 U.S.C. 601. For FHWA's proposed triennial 
safety performance reporting, both MPOs and State DOTs would be 
affected, but the proposed changes are expected to reduce overall 
burden. Therefore, FHWA certifies that the proposed rule

[[Page 4866]]

will not have a significant economic impact on a substantial number of 
small entities.

C. Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule would not result in the expenditure by State, local, 
and Tribal governments, in the aggregate, or by the private sector, of 
$168 million or more in any one year (2 U.S.C. 1532). In addition, the 
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act 
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.

D. E.O. 13132 (Federalism Assessment)

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in E.O. 13132, and FHWA has 
determined that this proposed rule would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. The 
FHWA also has determined that this proposed rule would not preempt any 
State law or State regulation or affect the States' ability to 
discharge traditional State governmental functions.

E. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulations. The FHWA has determined that this proposal does not 
contain any new collection of information requirements for the purposes 
of the PRA.
    This proposed rule expands upon existing flexibilities that are 
implemented as part of the overarching TPM regulations in 23 CFR part 
490, which includes State DOT reporting on performance biennially. The 
collection of biennial report information in support of Sec.  490.107, 
including the State DOT's documentation of any applicable extenuating 
circumstances described in Sec.  490.105(e), is covered by OMB Control 
No. 2125-0656.
    The proposed rule would change the reporting on safety performance 
targets from annual to triennial. Targets and performance would be 
reported on in the HSIP annual report. The collection of information in 
support of Sec.  490.213 is covered by OMB Control No 2125-0025.

F. National Environmental Policy Act

    The FHWA has analyzed this proposed rule pursuant to the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
has determined that it is categorically excluded under section 
771.117(c)(20), which applies to the promulgation of rules, 
regulations, and directives. Categorically excluded actions meet the 
criteria for categorical exclusions under the Council on Environmental 
Quality regulations and under section 771.117(a) and normally do not 
require any further NEPA approvals by FHWA.

G. E.O. 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed rule in accordance with the 
principles and criteria contained in E.O. 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The proposed rule would 
implement additional flexibilities in 23 CFR part 490 related to FHWA 
determination of significant progress toward State DOT NHPP and NHFP 
measure, and FHWA's determination of State DOT's compliance with 
Interstate pavement minimum conditions. The requirements of 23 CFR part 
490 apply to States that receive Title 23 Federal-aid highway funds, 
and it would not have substantial direct effects on one or more Indian 
Tribes, would not impose substantial direct compliance costs on Indian 
Tribal governments, and would not preempt Tribal laws. Accordingly, the 
funding and consultation requirements of E.O. 13175 do not apply and a 
Tribal summary impact statement is not required.

I. E.O. 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal Age