# National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2017-00550 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** January 18, 2017 - **Citation:** 82 FR 5886 ## Text DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 490 [Docket No. FHWA-2013-0053] RIN 2125-AF53 National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program AGENCY: Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The purpose of this final rule is to establish measures for State departments of transportation (State DOT) to use to carry out the National Highway Performance Program (NHPP) and to assess the condition of the following: Pavements on the National Highway System (NHS) (excluding the Interstate System), bridges carrying the NHS which includes on- and off-ramps connected to the NHS, and pavements on the Interstate System. The NHPP is a core Federal-aid highway program that provides support for the condition and performance of the NHS and the construction of new facilities on the NHS. The NHPP also ensures that investments of Federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established in a State's asset management plan for the NHS. This final rule establishes regulations for the new performance aspects of the NHPP that address measures, targets, and reporting. The FHWA is in the process of creating a new public Web site to help communicate the national performance story. The Web site will likely include infographics, tables, charts, and descriptions of the performance data that State DOTs report to FHWA. The FHWA issues this final rule based on sec. 1203 of MAP-21, which identifies national transportation goals and requires the Secretary to promulgate rules to establish performance measures and standards in specified Federal-aid highway program areas. DATES: This final rule is effective February 17, 2017. The incorporation by reference of certain publications listed in the regulation is approved by the Director of the Federal Register as of February 17, 2017. FOR FURTHER INFORMATION CONTACT: For technical information: Francine Shaw Whitson, Office of Infrastructure, 202-366-8028. For legal information: Anne Christenson, Office of Chief Counsel, 202-366-0740, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION Electronic Access and Filing The notice of proposed rulemaking (NPRM) was published at 80 FR 326 on January 5, 2015, and all comments received may be viewed online at http://www.regulations.gov . Electronic retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's Web site at http://www.orf.gov and the Government Printing Office's Web site at http://www.gpo.gov . Table of Contents for Supplementary Information I. Executive Summary A. Incorporating the FAST Act B. Purpose of the Regulatory Action C. Summary of Major Provisions of the Regulatory Action in Question D. Costs and Benefits II. Acronyms and Abbreviations III. Background IV. Summary of the NPRM V. Discussion of Comments A. Summary of Comments B. Discussion of Public Comments VI. Section-by-Section Discussion of the General Information and National Performance Management Measures for the National Highway Performance Program: Pavement and Bridge A. Subpart A—General Information B. Subpart C—National Performance Management Measures for the NHPP Pavement Performance Measures C. Subpart D—National Performance Management Measures for the NHPP Bridge Performance Measures VII. Rulemaking Analyses and Notices I. Executive Summary A. Incorporating the FAST Act On December 4, 2015, the President signed the Fixing America's Surface Transportation Act (FAST) Act (Pub. L. 114-94) into law. For the most part, the FAST Act is consistent with the new performance management elements introduced by MAP-21. For convenience and accurate historical context, this rule will refer to MAP-21 throughout the preamble to signify the fundamental changes MAP-21 made to States' authorities and responsibilities for overseeing the implementation of performance management. For this final rule, there are two areas where the FAST Act made changes to performance management requirements. The first change is sec. 119(e)(7), title 23, United States Code (23 U.S.C. 119(e)(7)), which relates to the requirement for a significant progress determination for NHPP targets. The FAST Act amended this provision to remove the term “2 consecutive reports.” The FHWA has incorporated this change into the final rule by removing the term “2 consecutive determinations,” which was proposed in section 490.109(f) of the NPRM, published January 5, 2015 (80 FR 326). In section 490.109(f) of the NPRM, FHWA proposed that if FHWA determines that a State DOT has not made significant progress toward achieving NHPP targets in two consecutive FHWA determinations, then that State DOT would document the actions it will take to achieve the targets in its next Biennial Performance Report. The FAST Act changed this requirement. Due to the FAST Act, the final rule requires State DOTs to take action when they do not make significant progress for each biennial determination (instead of 2 consecutive biennial determinations) made by FHWA. The second change made by the FAST Act is removal of the term “2 consecutive reports” in 23 U.S.C. 119(f)(1)(A), which relates to triggering the penalty for Interstate pavement condition that has fallen below the minimum condition level established under this rule. In section 490.317 of the NPRM, FHWA proposed that it would determine annually whether or not a State DOT's Interstate pavement condition is below the minimum condition level. If FHWA determines that a State DOT's Interstate pavement condition is below the minimum condition level for the “most recent 2 years,” then that State DOT would be subject to the penalty under 23 U.S.C. 119(f)(1)(A). A description and example application on this penalty is available for review on the docket. Due to the FAST Act, the final rule subjects State DOTs to the penalty under 23 U.S.C. 119(f)(1)(A) if FHWA determines that its Interstate pavement condition has fallen below the minimum condition level for the most recent year (instead of most recent 2 years). B. Purpose of the Regulatory Action The MAP-21 (Pub. L. 112-141) transforms the Federal-aid highway program by establishing new requirements for performance management to ensure the most efficient investment of Federal transportation funds. Performance management increases the accountability and transparency of the Federal-aid highway program and provides a framework to support improved investment decisionmaking through a focus on performance outcomes for key national transportation goals. As part of performance management, recipients of Federal-aid highway funds will make transportation investments to achieve performance targets that make progress toward national goals. The national performance goal for bridge and pavement condition is to maintain the condition of highway infrastructure assets in a state of good repair. The purpose of this final rule is to implement MAP-21 and FAST Act performance management requirements. Prior to MAP-21, there were no explicit requirements for State DOTs to demonstrate how their transportation program supported national performance outcomes. State DOTs were not required to measure condition or performance, establish targets, assess progress toward targets, or report on condition or performance in a nationally consistent manner that FHWA could use to assess the entire system. Without State DOTs reporting on the above factors, it is difficult for FHWA to look at the effectiveness of the Federal-aid highway program as a means to address surface transportation performance at a national level. This final rule is one of several rulemakings that DOT has or is conducting to implement MAP-21's new performance management framework. The collective rulemakings will establish the regulations needed to more effectively evaluate and report on surface transportation performance across the Nation. This final rule will: • Require State DOTs to maintain their bridges and pavements at or above a minimum condition level; • Provide for greater consistency in the reporting of condition and performance; • Require the establishment of targets that can be aggregated at the national level; • Improve transparency by requiring consistent reporting on progress through a public reporting system; • Require State DOTs to make significant progress toward meeting their targets; and • Establish requirements for State DOTs that have not met or made significant progress toward meeting their targets. State DOTs and metropolitan planning organizations (MPO) will be expected to use the information and data generated as a result of the new regulations to inform their transportation planning and programming decisions. The new performance aspects of the Federal-aid highway program that result from this rule will provide FHWA the ability to better communicate a national performance story and to more reliably assess the impacts of Federal funding investments. The FHWA is in the process of creating a new public Web site to help communicate the national performance story. The Web site will likely include infographics, tables, charts, and descriptions of the performance data that State DOTs would be reporting to FHWA. The FHWA is required to establish performance measures to assess performance in 12 areas 1 generalized as follows: (1) Serious injuries per vehicle miles traveled (VMT); (2) fatalities per VMT; (3) number of serious injuries; (4) number of fatalities; (5) pavement condition on the Interstate System; (6) pavement condition on the non-Interstate NHS; (7) bridge condition on the NHS; (8) traffic congestion; (9) on-road mobile source emissions; (10) freight movement on the Interstate System; (11) performance of the Interstate System; and (12) performance of the non-Interstate NHS. This rulemaking is the second of three that establish performance measures for State DOTs and MPOs to use to carry out Federal-aid highway programs and to assess performance in each of these 12 areas. This final rule establishes national measures for pavement condition on the Interstate System and non-Interstate NHS and bridge condition on the NHS (numbers 5, 6 and 7 in the above list). Other rulemakings have or will establish national measures for the remaining areas. 1 These areas are listed within 23 U.S.C. 150(c), which requires the Secretary to establish measures to assess performance or condition. State DOTs will be required to establish performance targets and assess performance in 12 areas 2 established by MAP-21, and FHWA will assess 3 their progress toward meeting targets in 10 of these areas 4 in accordance with MAP-21 and the FAST Act. State DOTs that fail to meet or make significant progress toward meeting pavement and bridge condition performance targets in a biennial performance reporting period will be required to document the actions they will undertake to achieve their targets in their next biennial performance report. 2 These areas are listed within 23 U.S.C. 150(c), which requires the Secretary to establish measures to assess performance or condition. 3 23 U.S.C. 148(i) and 23 U.S.C. 119(e)(7). 4 Serious injuries per vehicle VMT; fatalities per VMT; number of serious injuries; number of fatalities; pavement condition on the Interstate System; pavement condition on the non-Interstate NHS; bridge condition on the NHS; performance of the Interstate System; and performance of the non-Interstate NHS under MAP-21. Freight movement on the Interstate System under the FAST Act. This final rule establishes performance measures to assess pavement and bridge conditions on the Interstate System and non-Interstate NHS for the purpose of carrying out the NHPP. The four measures to assess pavement condition are: (1) Percentage of pavements on the Interstate System in Good condition; (2) percentage of pavements on the Interstate System in Poor condition; (3) percentage of pavements on the NHS (excluding the Interstate System) in Good condition; and (4) percentage of pavements on the NHS (excluding the Interstate System) in Poor condition. The two performance measures for assessing bridge condition are: (1) Percentage of NHS bridges classified as in Good condition; and (2) percentage of NHS bridges classified as in Poor condition. This final rule also establishes the minimum level for pavement condition for the Interstate System as required by the statute and incorporates the minimum condition level for bridges carrying the NHS which includes on- and off-ramps connected to the NHS as established by the statute. In addition, this final rule establishes the process for State DOTs and MPOs to use to establish and report targets and the process that FHWA will use to assess the progress State DOTs have made in achieving targets. Lastly, FHWA recognizes that implementation of the performance management requirements in this final rule will evolve with time for a variety of reasons such as: The introduction of new technologies that allow for the collection of more nationally consistent and/or reliable performance data; shifts in national priorities for the focus of a goal area; new federal requirements; or the emergence of improved approaches to measure condition/performance in supporting investment decisions and national goals. The FHWA is committed to performing a retrospective review of this rule after the first performance period, to assess the effectiveness of the requirements to identify any necessary changes to better support investment decisions through performance-based planning and programming and to ensure the most efficient investment of Federal transportation funds. In implementation of this rule, FHWA realizes that there are multiple ways that State DOTs and MPOs can make decisions to achieve more efficient and cost effective investments; as part of a retrospective review, FHWA will also utilize implementation surveys to identify how agencies complying with the rule are developing their programs and selecting their projects to achieve targets. C. Summary of the Major Provisions of the Regulatory Action in Question This final rule retains the majority of the major provisions of the NPRM but makes significant changes by: • Originally anticipating the rule's effective date as fall 2016, FHWA has now postponed the Baseline Performance Period Report and subsequent biennial reports by 2 years relative to those described in the NPRM ( i.e., from 2016 to 2018); • Removing the requirements for State DOTs to declare and describe NHS limits in their Baseline Performance Period Report; • Adding guidance for MPO target establishment to address situations where metropolitan planning areas extend across multiple States; • Removing the requirement to use the Metropolitan Planning Agreement as the means to document how MPOs report their established and adjusted targets to their respective State DOTs; • Clarifying the list of extenuating circumstances that may prevent a State DOT from making significant progress to include the sudden discontinuation of federally furnished data due to lack of Federal funding; • Removing references to provisional American Association of State Highway and Transportation Officials (AASHTO) standards to ensure consistency in reporting year over year (including references to PP68-14, PP69-14, and PP70-14); • Providing an option for State DOTs to report Present Serviceability Rating (PSR) for highways with a posted speed limit under 40 miles per hour (MPH) in place of International Roughness Index (IRI), cracking, rutting, and faulting; • Changing the threshold for pavements with Poor IRI condition to greater than 170 inches per mile for all areas, rather than the NPRM's proposed threshold of 220 inches per mile for urbanized areas with a population greater than 1 million people; • Changing the threshold for Poor crack rating for asphalt pavement sections from greater than 10 percent to greater than 20 percent and the threshold for Poor crack rating for jointed concrete pavement sections from greater than 10 percent to greater than 15 percent; • Changing the threshold for Good faulting rating for jointed concrete pavement sections from less than 0.05 inch to less than 0.1 inch; • Revising the network coverage of data reporting requirements for Interstate pavement condition from both directions of mainline highways to single, inventory direction of mainline highways; • Changing the approach in dealing with missing, unresolved, or invalid pavement data; ○ Removing the proposed language on rating sections with missing, unresolved, or invalid data as Poor condition; and ○ Revising the requirements for reporting on sections with missing, unresolved, or invalid data. In the final rule, no more than 5 percent of the network is to be represented with missing, unresolved, or invalid data due to construction, closure, disaster, flood, deterioration or any other reasons; • Revising the equation for calculating the percentage of missing, unresolved, or invalid data so that it is based on total lane-miles of the system excluding bridges and unpaved and “other” surface types instead of total lane-miles of the system; • Adjusting the minimum condition standards for pavement condition on the Interstate highways for Alaska because Highway Performance Monitoring System (HPMS) data indicated that a regional adjustment was needed for this State; • Revising the definition and computation for the classification of structurally deficient; and • Providing a transition period for implementing the revised definition and computation for the classification of structurally deficient, and using the new calculations for deck area of culverts and border bridges. The FHWA updated these and other elements in this final rule based on the review and analysis of comments received. For additional detail on all the changes FHWA made in the final rule, please refer to Section VI of this document. The following is a summary of the final rule. Section references below refer to sections of the regulatory text for title 23 of the Code of Federal Regulations (23 CFR). This final rule adds to subpart A general information applicable to part 490, to include requirements for target establishment, reporting on progress, and how determinations would be made on whether State DOTs have made significant progress toward NHPP targets. Subpart A also includes definitions and clarifies terminology associated with target establishment, reporting, and making significant progress. Lastly, subpart A incorporates by reference the HPMS Field Manual, the Recording and Coding Guide for the Structure Inventory and Appraisal of the Nation's Bridges, Report No. FHWA-PD-96-001 (December 1995) and errata, and several of the AASHTO standards. Section 490.105 describes the process to be used by State DOTs and MPOs to establish targets for each of the four pavement and two bridge measures. The State DOTs will establish 2- and 4-year targets for a 4-year performance period for the condition of infrastructure assets. State DOTs will establish their first statewide targets 1 year after the effective date of this rule. The MPOs will establish targets by either supporting a State DOT's statewide target, or defining a target unique to the metropolitan area each time State DOTs establish a target. The MPOs have up to 180 days after State DOTs establish their pavement and bridge condition targets to establish their own targets. The FHWA has placed a timeline on the docket that illustrates how this transition could be implemented. Section 490.107 identifies performance reporting requirements for State DOTs and MPOs. The State DOT will submit its established targets in a baseline report at the beginning of the performance period and report progress at the midpoint and end of the performance period. State DOTs will be allowed to adjust their 4-year target at the midpoint of the performance period. The MPOs are not required to provide separate reporting to FHWA. However, State DOTs and MPOs will need to coordinate and mutually agree to a target establishment reporting process. Coordination will also be required between State DOTs and MPOs if a State DOT adjusts its 4-year target at the midpoint of the performance period. Section 490.109 establishes the method FHWA will use to determine if State DOTs have achieved or have made significant progress toward the achievement of their NHPP targets. Significant progress will be determined from an analysis of estimated condition/performance and measured condition/performance of each of the NHPP targets. If applicable, State DOTs will have the opportunity to discuss why targets were not achieved or significant progress was not made. If a State DOT fails to achieve significant progress in a biennial performance reporting period, then it is required to document the actions they will undertake to achieve their targets in the next biennial performance report (though encouraged to document sooner). Subparts C and D establish performance measures and other related requirements to assess pavement and bridge conditions. In subparts C and D, sections 490.305 and 490.405 establish program-specific definitions to ensure that the performance measures are clear and consistent. Sections 490.307 and 490.407 require that State DOTs and MPOs use a total of six measures to assess the condition of pavements and bridges on the NHS. The pavement measures will be applicable to both Interstate and non-Interstate NHS mainline roads and the bridge measures would be applicable for all bridges carrying the NHS which includes on- and off-ramps connected to the NHS. Both the pavement and bridge measures will reflect the percentage of the system in Good and Poor condition. The measure calculations will utilize data documented in the HPMS and in the National Bridge Inventory (NBI). Section 490.315 establishes the minimum level for condition of pavements on the Interstate System as required by 23 U.S.C. 150(c)(3)(A)(iii). Section 490.411 incorporates the minimum level for condition of bridges as required by 23 U.S.C. 119(f)(2). D. Costs and Benefits The FHWA estimated the incremental costs associated with the new requirements that represent a change to current practices of State DOTs and MPOs. 5 The FHWA also estimated the incremental costs associated with the new requirements proposed in this regulatory action. The new requirements represent a change to the current practices of State DOTs and MPOs. The FHWA derived the costs of the new requirements by assessing the expected increase in the level of labor effort for FHWA, State DOTs, and MPOs to standardize and update data collection and reporting systems and establish and report targets. 5 See Table 4 in Section VII, Rulemaking Analysis and Notices. The FHWA derived the costs of each of these components by assessing the expected increase in level of labor effort and additional capital needed to standardize and update State DOT data collection and reporting systems and to establish and report targets. The FHWA sought opinions from pavement and bridge subject matter experts (SMEs) to estimate impacts of the final rule. Cost estimates were developed based on assumptions based on information received from SMEs. To estimate costs, FHWA multiplied the level of effort, expressed in labor hours, with a corresponding loaded wage rate that varied by the type of laborer needed to perform the activity. 6 Where necessary, capital costs were also included. Following this approach, the 10-year undiscounted incremental costs to comply with this rule are $156.0 million. 6 Bureau of Labor Statistics Employee Cost Index, 2014. The final rule's 10-year undiscounted cost ($156.0 million in 2014 dollars) decreased from the proposed rule ($196.4 million in 2012 dollars). The FHWA made several changes that affected the cost estimate. These changes include updating costs to 2014 dollars from 2012 dollars and labor costs to reflect current Bureau of Labor Statistics (BLS) data. In addition, FHWA revised the final rule Regulatory Impact Analysis (RIA) to reflect: (1) The deferment of the effective date; (2) the postponed implementation of establishing and updating performance targets, reporting on performance targets, and assessing significant progress toward achieving performance targets; (3) a decrease in the number of MPOs expected to establish quantifiable targets and upgrade software; (4) the costs of coordinating the establishment of targets in accordance with 23 CFR 450; (5) a decrease in pavement data collection requirements for State DOTs; and (6) added effort for State DOTs to collect data on the non-Interstate NHS. The FHWA expects that the rule will result in significant benefits, although they are not easily quantifiable. The rule will yield greater accountability because MAP-21 mandated reporting increases visibility and transparency. The data reported to FHWA will be consistent across the States and will be comprehensive, which will allow for a clear national picture of the status of pavement and bridge conditions. In addition, this data would be available to the public and would be used to communicate a national performance story. The FHWA is developing a public Web site to share performance related information. In addition, the rule will help focus the Federal-aid highway program on achieving balanced performance outcomes. The FHWA used a break-even analysis as the primary approach to quantify benefits. For both pavements and bridges, FHWA focused its analysis on vehicle operating costs (VOC) savings. The FHWA estimated the number of road miles of deficient pavement that will have to be improved (Table 5, Section VII, Rulemaking Analysis and Notices) and the number of posted bridges that will have to be avoided (Table 6, Section VII, Rulemaking Analysis and Notices) in order for the benefits of the rule to justify the costs. The results of the break-even analysis quantified the dollar value of the benefits that the rule must generate to outweigh the threshold value, the estimated cost of the rule, which is $156.0 million in undiscounted dollars. The results show that the rule must result in the net improvement of approximately 71 miles of pavement ( i.e., from Poor condition) from its current base case projection, and three 1-year-long bridge postings will need to be avoided over 10 years, to generate enough benefits to outweigh the cost of the rule. The FHWA believes that the benefits of this rule will surpass this threshold. Therefore, the benefits of the rule are anticipated to outweigh the costs. Relative to the proposed rule, the threshold for the pavement break-even analysis decreased in the final rule. Specifically, the number of NHS miles in Poor condition needing improvement to Fair condition decreased from 435 to 71 in the final rule. The break-even point was affected by an adjustment to the weighted average incremental cost per VMT related to maintenance and repair particularly by updating the VMT vehicle class weights, a decrease in the undiscounted 10-year cost of the pavement rule, an increase in the total VMT that are in poor, and an increase in the number of NHS miles estimated to be in poor condition based on more recent performance data. The threshold for the bridge break-even analysis increased in the final rule relative to the proposed rule. Specifically, the number of year-long bridge postings that need to be reduced increased from two to three in the final rule. The break-even point increased due to the following updates to input data: • The average detour for bridges posted with weight limits of at least 40 percent below the legal load decreased from 20 miles to 10.45 miles, and • The percentage of trucks of total average annual daily traffic on posted bridges decreased from 12.6 percent to 9.7 percent. The below table displays the Office of Management and Budget (OMB) A-4 Accounting Statement as a summary of the cost and benefits calculated for this rule. OMB A-4—Accounting Statement Category Estimates Primary Low High Units Year dollar Discount rate (percent) Period covered Source/citation Benefits: Annualized Monetized ($ millions/year) None None None None None None NA NA 7 3 NA NA Not Quantified. Annualized Quantified None None None None None None NA NA 7 3 NA NA Not Quantified. Qualitative With regard to the pavement condition measures, the rule is cost-beneficial if it results in the net improvement of approximately 71 miles of pavement (i.e., from poor condition to good) per year, or 710 miles over 10 years, from its current base case projection. With regard to the bridge condition measures, 0.3 year-long bridge postings will need to be avoided per year, or 3 year-long bridge postings over 10 years, in order for benefits to justify costs. Because of these low thresholds, FHWA determines that the rule benefits outweigh the costs. Final Rule RIA. Costs: Annualized Monetized ($/year) $17,100,924 $16,232,012 2014 2014 7 3 10 Years 10 Years Final Rule RIA. Annualized Quantified None None None None None None 2014 2014 7 3 10 Years 10 Years Final Rule RIA. Qualitative Transfers None From/To From: To: Effects: State, Local, and/or Tribal Government $17,026,477 2014 7 10 Years Final Rule RIA. $16,161,365 2014 3 10 Years Small Business Not expected to have a significant impact on a substantial number of small entities. NA NA NA Final Rule RIA. II. Acronyms and Abbreviations Acronym or abbreviation Term AASHTO American Association of State Highway and Transportation Officials. AC Asphalt-Concrete. ACPA American Concrete Pavement Association. ADA Americans with Disabilities Act. Alaska DOT&PF Alaska Department of Transportation and Public Facilities. AMPO Association of Metropolitan Planning Organizations. ASCE American Society of Civil Engineers. ASR Alkali Silica Reactivity. CDOT Colorado Department of Transportation. CIP Capital Improvement Program. CFR Code of Federal Regulations. CMAQ Congestion Mitigation and Air Quality Improvement Program. COMPASS Community of Planners Association of Southwestern Idaho. CRCP Continuously Reinforced Concrete Pavements. DOT U.S. Department of Transportation. State DOT State Department of Transportation. EIA Energy Information Administration. EO Executive Order. FHWA Federal Highway Administration. FAST Act Fixing America's Surface Transportation Act. FTA Federal Transit Administration. HPMS Highway Performance Monitoring System. HSIP Highway Safety Improvement Program. HSP Highway Safety Plan. IRI International Roughness Index. LRP/LRTP Long Range Plan/Long Range Transportation Plan. MAP-21 Moving Ahead for Progress in the 21st Century Act. MARC Mid-American Regional Council. MEPDG Mechanistic-Empirical Pavement Design Guide 7 . MPH Miles per hour. MPO Metropolitan Planning Organization. MTC Metropolitan Transportation Commission. MTP Metropolitan Transportation Plan. NARA National Archives and Records Administration. NARC National Association of Regional Councils. NBI National Bridge Inventory. NBIS National Bridge Inspection Standards. NHPP National Highway Performance Program. NCHRP National Cooperative Highway Research Program. NHS National Highway System. NPRM Notice of Proposed Rulemaking. NYMTC New York Metropolitan Transportation Council. NYSAMPO New York State Association of Metropolitan Planning Organizations. OMB Office of Management and Budget. PCA Portland Cement Association. PCCP or Jointed PCCP Portland Cement Concrete Pavements. PCI Pavement Condition Index. PRA Paperwork Reduction Act. PSR Present Serviceability Rating. PSRC Puget Sound Regional Council. RIA Regulatory Impact Analysis. RIN Regulatory Identification Number. ROW Right of Way. RSL Remaining Service Life. Secretary Secretary of the U.S. Department of Transportation. SHSP Strategic Highway Safety Plan. SME Subject Matter Expert. TEMPO Association of Texas Metropolitan Planning Organizations. TMA Transportation Management Area. TAMP Transportation Asset Management Plan. UMRA Unfunded Mandates Reform Act of 1995. U.S.C. United States Code. VMT Vehicle Miles Traveled. VOC Vehicle Operating Costs. 7 http://onlinepubs.trb.org/onlinepubs/archive/mepdg/home.htm. III. Background The DOT's proposal regarding MAP-21's performance requirements is being presented through several rulemakings, some of which were referenced in the above discussions. As a summary, these rulemaking actions are listed below and should be referenced for a complete picture of performance management implementation. The summary below describes the main provisions that DOT plans to propose for each rulemaking. On January 5, 2015, FHWA published an NPRM (80 FR 326) proposing the following: (1) The definition of national measures for the condition of NHS pavements and bridges; (2) the process to be used by State DOTs and MPOs to establish their pavement and bridge condition related performance targets that reflect the measures proposed in the NPRM; (3) the process State DOTs must follow to report on progress toward meeting or making significant progress toward meeting pavement and bridge condition related performance targets; (4) a methodology to be used to assess State DOTs' compliance with the target achievement provision specified under 23 U.S.C. 148(i); and (5) the minimum levels for the condition of pavement on the Interstate System and bridges carrying the NHS which includes on- and off-ramps connected to the NHS. On March 15, 2016, FHWA published a final rule (81 FR 13882) covering the safety-related elements of the Federal-aid Highway Performance Measures Rulemaking that included the following: (1) The definitions that are applicable to the new 23 CFR part 490; (2) the process to be used by State DOTs and MPOs to establish their safety-related performance targets that reflect the safety measures; (3) a methodology to be used to assess State DOTs' compliance with the target achievement provision specified under 23 U.S.C. 148(i); and (4) the process State DOTs must follow to report on progress toward meeting or making significant progress toward meeting safety-related performance targets. The final rule also included a discussion of the collective rulemaking actions FHWA intends to take to implement MAP-21 and FAST Act performance related provisions. The FHWA published a third Federal-aid Highway Performance Measures Rulemaking (Regulatory Identification Number (RIN) 2125-AF54) on April 22, 2016, FR Vol. 81, No. 78. In this NPRM, FHWA proposed national measures for the remaining areas under 23 U.S.C. 150(c) that were not discussed under the first and second measure rules. The third rulemaking effort includes the following measure areas: (1) National Management Performance Measures for Performance of the Interstate System and non-Interstate NHS; (2) Freight Movement on the Interstate System and the Congestion Mitigation and Air Quality Improvement Program (CMAQ) Traffic Congestion; (3) CMAQ On-Road Mobile Source Emissions; (4) the State DOT and MPO target establishment requirements for the Federal-aid highway program; and (5) performance progress reporting requirements and timing. When FHWA began implementation of MAP-21, the three related Federal-aid highway performance measure rules were to be published at the same time to allow for a single, common effective date for all three rules. While FHWA recognizes that one common effective date could be easier for State DOTs and MPOs to implement, the process to develop and implement all of the Federal-aid highway performance measures required in MAP-21 has been lengthy. In light of this, instead of waiting for all three rules to be final before implementing the MAP-21 performance measure requirements, each of three Federal-aid highway performance measures rules will have individual effective dates. This would allow FHWA, State DOTs, and MPOs to begin implementing some of the performance requirements much sooner than waiting for the rulemaking process to be complete for all three rules. The FHWA also believes that a staggered approach to implementation ( i.e., implementing one set of requirements at the onset and adding on requirements over time) will better help State DOTs and MPOs transition to a performance based framework. The FHWA expects that even though the effective date for each rule would occur as that rule is finalized, the second rule would ultimately be aligned with the third rule through a common performance period and reporting requirements for the proposed measures. A timeline for Biennial Performance Reports is shown in Figure 1 in section 490.105(e)(1). Although FHWA believes that individual implementation dates will help State DOTs and MPOs transition to performance based planning, to lessen any potential burden of staggered effective dates, FHWA will provide guidance to State DOTs and MPOs on how to carry out the new performance requirements. In addition to providing this guidance, FHWA is committed to providing stewardship to State DOTs and MPOs to assist them as they take steps to manage and improve the performance of the highway system. As a Federal agency, FHWA is in a unique position to use resources at a national level to capture and share strategies that can improve performance. The FHWA will continue to dedicate resources at the national level to provide technical assistance, technical tools, and guidance to State DOTs and MPOs to assist them in making more effective investment decisions. It is FHWA's intent to be engaged at a local and national level to provide resources and assistance from the onset to identify opportunities to improve performance and to increase the chances for full State DOT and MPO compliance of new performance related regulations. The FHWA technical assistance activities include conducting national research studies, improving analytical modeling tools, identifying and promoting best practices, preparing guidance materials, and developing data quality assurance tools. IV. Summary of the Notice of Proposed Rulemaking The NPRM published on January 5, 2015 (80 FR 326), was one of several NPRMs that FHWA issued to implement sec. 1203 of MAP-21, which establishes performance management as a way to transform the Federal-aid highway program and refocus it on national transportation goals, increase accountability and transparency of the program. The NPRM proposed a set of national measures for State DOTs to use to assess the condition of pavement and bridges on the NHS in support of MAP-21's national goal of maintaining the condition of highway infrastructure assets in a state of good repair. After a period of engagement and outreach with State DOTs, MPOs, and other stakeholders and a review of nationally recognized reports, FHWA's NPRM proposed six national performance measures that rated the percentage of all mainline pavements on the NHS (excluding the Interstate System), bridges carrying the NHS which includes on- and off-ramps connected to the NHS, and mainline pavements on the Interstate System in either Good or Poor condition. The ratings proposed in the NPRM were derived from several quantitative metrics that addressed physical characteristics of pavement and bridge condition and were tracked and reported regularly to FHWA by State DOTs in the HPMS and the NBI. The NPRM also proposed a minimum level of condition for pavements on the Interstate System as required by the statute. The NPRM also incorporated the minimum condition level for NHS bridges, as stated in 23 U.S.C. 119(f)(2). To support the new measures, the NPRM proposed to establish standardized data requirements that prescribed State DOTs' pavement and bridge condition data gathering practices. These requirements specified the data elements State DOTs must collect, methods for collecting those data elements, and the spatial and temporal coverage of the data they collect. The NPRM's proposed data requirements ensured more accurate calculation of the proposed national pavement and bridge performance measures based on State DOTs' data. The NPRM also proposed to establish the processes for State DOTs and MPOs to establish and report progress toward achieving targets, and the process for FHWA to determine whether State DOTs have made significant progress in achieving targets. The measures, data requirements, and related processes included in the NPRM were selected by FHWA after careful determination that they represented the best choices for achieving greater consistency among State DOTs in compiling accurate infrastructure condition information, following processes for target setting, and reviewing progress toward targets. In turn, FHWA expected the measures to enhance accountability and support a strong national focus on the condition of the Nation's highways, while minimizing the number of measures needed and maintaining reasonable flexibility for State DOTs as they manage risk, differing priorities, and fiscal constraints. Lastly, FHWA anticipated that the proposed measures could be implemented in the timeframe required under MAP-21, without introducing a considerable burden on State DOTs. Pavement Condition Measures The four pavement condition measures proposed in the NPRM were: (1) Percentage of pavements on the Interstate System in Good condition; (2) Percentage of pavements on the Interstate System in Poor condition; (3) Percentage of pavements on the NHS (excluding the Interstate System) in Good condition; and (4) Percentage of pavements on the NHS (excluding the Interstate System) in Poor condition. Pavement Data Requirements and Metrics Under the NPRM, performance ratings of Good, Fair, or Poor condition for pavement were determined by FHWA using a combination of several metrics derived from data elements collected by State DOTs and reported to the HPMS. These metrics collectively provided a way to quantify pavement condition in terms of roughness and cracking for all pavement types, rutting for asphalt pavement surfaces, and faulting (misalignment between concrete slabs) for jointed concrete pavement surfaces. Roughness affects users' travel speeds, safety, comfort, and transportation costs. Cracking, rutting, and faulting are considered surface indicators of structural deterioration in different pavement types. Since 2010, most State DOTs have reported roughness, cracking, rutting, and faulting data annually to FHWA through HPMS. The NPRM specified that data for the roughness, cracking, rutting, and faulting metrics must be collected consistent with practices outlined in the HPMS Field Manual (A draft of the updated HPMS Field Manual was placed on the docket with the NPRM at FHWA-2013-0053). Calculation of Pavement Measures The proposed pavement measures were designed to reflect a pavement's predominant condition, represented by roughness, cracking, rutting, and faulting data elements, as applicable. For a section of pavement to be rated in Good condition, the absolute values for all relevant metrics need to exceed thresholds specified in the NPRM. Conversely, a section of asphalt or jointed concrete pavement would be rated in Poor condition if any two of three relevant metrics were below specified threshold values. A section of Continuously Reinforced Concrete Pavement would be rated in Poor condition if the two relevant metrics are below the specified threshold values. The FHWA explained that a measurement approach that focused only on increasing Good conditions or reducing Poor conditions may result in practices that would not optimize the benefits of infrastructure investments. Bridge Condition Measures The two bridge condition measures proposed in the NPRM were: (1) Percentage of NHS bridge deck area classified as in Good condition and (2) Percentage of NHS bridge deck area classified as in Poor condition. Bridge Data Requirements and Metrics Under the NPRM, performance ratings of Good or Poor condition for bridges were determined by FHWA using a combination of several metrics collected by each Federal agency, State DOT, and tribal government as part of their NBI submittals (specifically deck, superstructure, substructure, and culverts). These metrics provide an overall characterization of the general physical condition of the entire bridge component being rated. The NBI database was established in 1972 and State DOTs have been required to submit annual NBI reports to FHWA since 1978. The NBI is a highly consistent set of national data for evaluating and monitoring the condition and performance of bridges that is based on National Bridge Inspection Standards (NBIS) for the proper and uniform inspection and evaluation of highway bridges. The NPRM further proposed to weight the classifications by the respective deck area of the bridge and express condition totals as a percentage of the total bridge deck area on the NHS in a State. Calculation of Bridge Measures The NPRM's proposed bridge measures reflected the lowest component condition rating for the bridge, based on the NBI condition ratings for deck, superstructure, substructure, and culverts. For a bridge to be classified as in Good condition, all the relevant metrics need to equal the values specified in the NPRM. Similarly, a bridge would be classified as in Poor condition if any of the relevant metrics equal the values specified in the NPRM. State Departments of Transportation and Metropolitan Planning Organizations Pavement and Bridge Performance Targets The NPRM described a process by which the six pavement and bridge condition performance measures would be used by State DOTs and MPOs to establish quantifiable statewide performance targets to be achieved over a 4-year performance period, with the first performance period starting in 2016. Under the NPRM, a State DOT or MPO could consider a number of factors ( e.g., funding availability and local transportation priorities) that could impact the targets they ultimately establish for pavement and bridge system conditions. According to the NPRM, State DOTs would establish 2- and 4-year targets for the six pavement and bridge condition measures 1 year after the effective date of the rule. The MPOs would establish targets by either supporting the State DOT's statewide target, or defining a target unique to the metropolitan planning area each time the State DOT establishes a target. In accordance with MAP-21, the NPRM provided MPOs a 180-day period following the date at which the State DOT established their pavement and bridge targets. Furthermore, the NPRM proposed a minimum level of condition for Interstate System pavements of no more than 5 percent of pavement lane miles in Poor condition, and reiterated the MAP-21 requirement of no more than 10 percent of the deck area of bridges on the NHS classified as structurally deficient. State Departments of Transportation and Metropolitan Planning Organization Pavement and Bridge Performance Reporting The NPRM proposed that State DOTs submit biennial reports to FHWA on the condition and performance of the NHS. Under the NPRM, State DOTs submitted their targets in a baseline report at the beginning of each performance period and reported progress in achieving targets at the midpoint and end of the performance period. State DOTs were allowed to adjust their 4-year target at the midpoint of the performance period. The MPOs were not required to provide separate reporting to FHWA. However, State DOTs and MPOs needed to agree on a reporting process in the Metropolitan Planning Agreement. Determination of Significant Progress The NPRM proposed the method for FHWA to determine if State DOTs achieved significant progress toward their target from an analysis of estimated condition/performance and measured condition/performance of each of the targets. If applicable, State DOTs could have the opportunity to discuss why targets were not achieved or significant progress was not made. If a State DOT failed to achieve significant progress in two consecutive biennial determinations, then the State DOT was required to document in their next biennial performance report, and encouraged to document sooner, the actions they would undertake to achieve their targets. V. Discussion of Comments The FHWA received 127 public comment submissions to the docket. This included letters from 42 State DOTs, 13 MPOs, 19 counties or local government agencies, 16 industry associations, and several other submissions from individuals, advocacy organizations, and private industry members. One submission contained over 1,000 duplicates of a letter expressing support for the rule and appreciation to FHWA for responding to public comment on the first performance management NPRM related to safety. The comment submissions covered a number of topics in the proposed rule, with the most substantive comments on establishment of targets, reporting, the significant progress determination process, pavement condition performance measures, and bridge condition performance measures. Of the 127 public comment submissions received, the majority expressed overall support for the rule. Commenters expressed general concerns over NHS ownership, the performance period timespan, the start of the reporting cycle, target adjustment, significant progress determination and timing, incorporation by reference, and minimum condition penalties. For pavement condition measures specifically, commenters had mixed opinions regarding the use of the IRI and other metrics and expressed concern over the proposed extent of data collection, the treatment of missing data, and the proposed minimum condition level. For bridge condition measures specifically, commenters expressed mixed opinions about the use of element level data and expressed opposition to the proposed definition of structurally deficient. The FHWA thanks all commenters for their responses to the NPRM. The FHWA carefully considered the comments received from the stakeholders. Selected Topics for Which FHWA Requested Comments In the NPRM, FHWA requested comments on different topics related to the rulemaking. Several of those had an impact on the final rule and are discussed in this section. The others are discussed in the section-by-section analysis. Purpose and Approach of the Regulatory Action The FHWA received general support of the performance management concept and its proposed implementation from State DOTs, industry groups, and private citizens. 8 The FHWA also received several comments that opposed specific portions of the proposed rule from State DOTs, industry, local governments, and advocacy groups. 9 Some of these same commenters shared their overall support of the rule. 8 The State DOTs of Alaska, Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Minnesota, Missouri, New Hampshire, New York, Oregon, Vermont, Virginia, and Washington State; and AASHTO, Cemex USA, National Asphalt Pavement Association, National Association of Regional Councils, National Center for Pavement Preservation, New York Metropolitan Transportation Council, New York State Association of Metropolitan Planning Organizations, Northeast Pavement Preservation Partnership, Oversight Committee for the California Local Streets and Roads Needs Assessment, Southern California Association of Governments, Southeast Michigan Council of Governments, Southeast Pavement Preservation Partnership, and Transportation for America, Blake Rubenstein. 9 State DOTs of Alaska, Idaho, New York, North Dakota, Oregon, South Dakota, Rhode Island, and Wyoming; the City of Santa Rosa, CA and the Seattle DOT; and Agile Assets, American Road and Transportation Builders Association, Center for American Progress, Michigan Transport Commission and Asset Management, and Transportation for America. A number of State DOTs and MPOs took issue with the assumptions and levels of cost analysis associated with the requirements of the NPRM reflected in the benefit-cost analysis and suggested that it be reconsidered. 10 These comments are discussed in more detail in Section VI. In terms of benefits, Fugro Roadware, a firm that manufactures and operates equipment that is used to measure the pavement conditions on State and municipal networks, asserted that the “entire pavement and traffic assessment management process has been shown to improve the quality of road networks without an overall increase of funding. . . .” 10 Atlanta Regional Commission, Texas Association of Metropolitan Planning Organizations, Transportation for America, and State DOTs of Colorado, Rhode Island, North Carolina, Mississippi, Oklahoma, Michigan, Georgia, Louisiana, and Oregon. Finally, FHWA received numerous comments that fell outside of the scope of the rulemaking. The American Motorcyclist Association, for example, endorsed the design standards that advance the safety of motorcycle use. The advocacy group Perils for Pedestrians commented that more pedestrians are injured by falls than vehicles. The American Society of Civil Engineers (ASCE) requested FHWA incorporate Life Cycle Costs into performance management rules. Finally, private citizens (1) requested an addition to the proposed rule to promote small business during the inspection and accounting for each new project; (2) advocated for improved standards for design and construction of longitudinal joints in pavements; (3) endorsed the goals for Safety and Asset Management Rules as well as incentives to increase public transit; and “(4) suggested the rule require the use of compact joints on highways to extend the pavement's lifetime.” Public Comments in Response to FHWA's Questions in the NPRM In the NPRM, FHWA requested comments on certain topics related to the pavement and bridge condition performance measures rulemaking. Comments received in response are summarized below. Does the approach to performance measures support the nine implementation principles? The FHWA listed nine principles in the NPRM preamble that were considered in the development of the proposed regulation. 11 Overall, commenters (AASHTO and the State DOTs of Alabama, Connecticut, Georgia, Maryland, New Jersey, New York State, Oregon, and Texas, and private entity Steve Mueller Consultancy) supported FHWA's nine principle approach. However, the New York Metropolitan Transportation Council (NYMTC) felt the NPRM was inconsistent with the nine principles in relationship to linking financial penalties to the single nationwide [ sic, statewide] targets for pavement and bridges causing inconsistency with the principles of: (1) Understand that Priorities Differ (“Single targets do not acknowledge regional differences in infrastructure age, . . .”), (2) Recognize Fiscal Constraints (“These targets and penalties have the effect of limiting flexibility we have for investing in assets across our systems at the state, regional, and local levels, as we deem appropriate.”), and (3) Provide for Flexibility (“Tying penalties to the specific measures in § 490.317 and § 490.413 and requiring [S]tates to focus spending on two specific components of the transportation system (Interstate pavement and NHS bridges) is the antithesis of flexibility.”) NYSDOT (New York State Department of Transportation) and other NYMTC members are responsible for the entire transportation system in the region, and all approach asset management from a system-level perspective (including both NHS and non-NHS assets). These thresholds and associated penalties could lead to an exclusive focus on Interstate pavement and NHS bridges at the expense of the remainder of the system.” 11 Nine principles used in the development of proposed regulations for national performance management measures under 23 U.S.C. 150(c), www.regulatons.gov , Docket FHWA-2013-0053: i. Provide for a National Focus—focus the performance requirements on outcomes that can be reported at a national level. ii. Minimize the Number of Measures—identify only the most necessary measures that will be required for target establishment and progress reporting. Limit the number of measures to no more than two per area specified under 23 U.S.C. 150(c). iii. Ensure for Consistency—provide a sufficient level of consistency, nationally, in the establishment of measures, the process to set targets and report expectations, and the approach to assess progress so that transportation performance can be presented in a credible manner at a national level. iv. Phase in Requirements—allow for sufficient time to comply with new requirements and consider approaches to phase in new approaches to measuring, target establishment, and reporting performance. v. Increase Accountability and Transparency—consider an approach that will provide the public and decision makers a better understanding of Federal transportation investment needs and return on investments. vi. Consider Risk—recognize that risks in the target establishment process are inherent, and that performance can be impacted by many factors outside the control of the entity required to establish the targets. vii. Understand that Priorities Differ—recognize that State DOTs and MPOs must establish targets across a wide range of performance areas, and that they will need to make performance trade-offs to establish priorities, which can be influenced by local and regional needs. viii. Recognize Fiscal Constraints—provide for an approach that encourages the optimal investment of Federal funds to maximize performance but recognize that, when operating with scarce resources, performance cannot always be improved. ix. Provide for Flexibility—recognize that the MAP-21 requirements are the first steps that will transform the Federal-aid highway program to a performance-based program and that State DOTs, MPOs, and other stakeholders will be learning a great deal as implementation occurs. In addition, the Northeast Pavement Preservation Partnership (NEPPP) felt most of the principles were covered but that FHWA did not address the following principles: (1) Recognize Fiscal Constraints—(“The proposed performance measures do not encourage optimal investment. It can be argued that they instead encourage worst-first mentality, since there is a target for percent poor, and since there are bins ( i.e., percent good, percent fair, and percent poor)). Optimal investment could much more readily be achieved with an overall Index or RSL approach, where pavement preservation is encouraged along with rehabilitation.”); and (2) Provide for Flexibility—(“It is not apparent in the rules how flexibility is provided for. No provision is made for allowing a [State] DOT to implement and manage toward different measures which may be more cost-effective.”). The National Asphalt Pavement Association (NAPA) made similar arguments in regard to principle (1) “Recognize Fiscal Constraints—(“NAPA is concerned that the proposed rule could lead to poor decisions ( i.e., “worst first”) in order to comply with the NPRM minimum pavement condition, rather than decisions that factor in the long-term preservation and performance of pavements.”); and (2) Provide for Flexibility—(“Agencies should have flexibility to make decisions that balance preserving good/fair pavements with improving and rehabilitating poor pavements.”) While the following commenters generally agreed that FHWA's approach to performance measures was consistent with the nine principles, they also identified areas that were lacking. Georgia DOT stated that the approach in the proposed rule may not fully support the principle of recognizing fiscal constraints or provide for an approach that encourages the optimal investment of Federal funds to maximize performance. The NYMTC and the Georgia and Maryland DOTs stated that limited funding could prevent targets and minimums from being achievable and that imposing the proposed penalties could result in worsening of other assets. Moreover, the NYMTC commented that with no long term funding solution for national or State transportation programs, States may not have a defensible way to establish targets or make changes to their investment strategies. The NEPPP also commented that the proposed rule will not allow a State DOT to implement and manage their program toward different measures or metrics that encourage a balanced program based on asset management pavement preservation conceptions. Several commenters cited concerns over flexibility in the rule tied to implementation principles. The NYS DOT commented that States should not be forced to use specific performance targets or measures. The New Jersey DOT raised concerns about reporting requirements, commenting that they will need to maintain “two sets of books,” one for national performance reporting and one to manage their network, using appropriate pavement management and asset management principles. Suggestions for How FHWA Can Best Assist State DOTs and MPOs To Maximize Opportunities for Successful Implementation of the Proposed Performance Measures Generally, States expressed a desire for more training materials, technical assistance, and technical guidance so that they can implement the rule accurately and efficiently. Several commenters, including AASHTO and the State DOTs of Connecticut, Louisiana, New Jersey, and Oregon, expressed a desire for additional technical assistance and guidance detailing the process FHWA will use to compute the overall pavement condition measures. Commenters also requested guidance on target setting best practices for State DOTs and MPOs. The Maryland DOT suggested that FHWA provide a contact person or Web link for technical assistance activities. In addition, the Alabama DOT commented that more guidance be given on data quality. They argued that the training materials have lacked information in statistical methodology and note, “it is simple to determine if a dataset is reasonable; it is quite a different matter to determine of the dataset is correct.” Should the measures reflect additional factors such as facility location, functional class, level of use, environment, or impact it may have on other aspects of transportation performance? The American Concrete Pavement Association (ACPA) and Portland Cement Association (PCA) requested that FHWA modify the proposed rule to provide a better assessment of the performance of our highways and bridges. A private citizen, Joyce Dillard, commented that the measures should reflect level of use, environment, and overweight trucks. Acknowledging that there is limited funding and increasing needs, Oregon DOT commented that adding additional factors could help show progress. The commenter suggested adding measures such as functional class, progress made on other deficiencies ( e.g., painting, vertical clearance, and rail), and risk. Additionally, for bridges specifically, the commenter suggested looking at mitigation measures to reduce vulnerability to seismic activity and scour. In addition, the New York City DOT recommended that traffic counts on bridges could be a useful measure to collect. The commenter noted that that traffic counts are an important variable that quantifies a bridge's performance and life expectancy. Appropriateness of the Proposed Threshold Criteria To Determine Good, Fair, and Poor Ratings • Concerns with Pavements: Commenters stated that agencies will be driven to overemphasize treatments that lower cracking and improve ride quality on pavements that currently rank as Poor at the cost of solutions that extend the performance life of the pavements that currently rank as Good or Fair ( e.g., surface treatments). In addition, commenters noted that although pavement types referenced in the NPRM (Portland Cement Concrete Pavements and Continuously Reinforced Concrete Pavements (CRCP)) make up the vast majority of the NHS, other pavement surfaces exist in small quantities. Should FHWA establish a minimum condition threshold that would become more stringent over time? Commenters provided mixed opinions on the establishment of a minimum condition threshold that would become more stringent over time. Several commenters expressed concern that pressure to meet a difficult minimum condition threshold may push States to implement a worst-first approach to pavement preservation, which would run counter to the asset management principles and planning approach advocated by FHWA. 12 The Oregon DOT commented that a problem with pavement performance measures is that they “discourage proven, cost effective, pavement preservation techniques.” Agencies that are under pressure to meet performance targets may implement a worst-first approach. 12 State DOTs of Arkansas and Mississippi, the Southern California Association of Governments, the Seattle Department of Transportation. Other State DOTs and AASHTO recommended FHWA evaluate the effects of the national level performance measures, targets and minimum condition levels to ensure that these policies have a positive impact on management approaches. VI. Section-by-Section Discussion of the General Information and National Performance Management Measures for the National Highway Performance Program: Pavement and Bridge A. Subpart A—General Information Discussion of Section 490.101 General Definitions In the NPRM, FHWA proposed several definitions for used in this regulation. Only Washington State DOT commented on the definition for the term “HPMS” and they agreed with the definition. The FHWA retains the definition for HPMS. In the NPRM, the term “full extent” was defined as “continuous collection and evaluation of pavement condition data over the entire length of the roadway.” The term “mainline highways” was defined as “the through travel lanes of any highway exclude ramps, shoulders, turn lanes, crossovers, rest areas, and other pavement surfaces that are not part of the roadway normally travelled by through traffic.” Only Washington State DOT commented on the definition for “full extent” and they agreed with the definition. The State DOTs of Connecticut, Maine, New Hampshire, Vermont, and Washington State and AASHTO agreed with the definition of “mainline highways.” However, Colorado DOT stated that the definition conflicts with section 490.309(c)(1)(i) requiring data for the full extent of the mainline highway of the NHS which would indicate that State DOTs need to collect data on all through travel lanes. The Colorado DOT added that the intent is that States collect one lane's worth of data on NHS. The FHWA described in the NPRM that section 490.309(c) applies to Through Lanes, Surface Type, and Structure Type Data Items, while section 490.309(b) requires that State DOTs report IRI, rutting, faulting, and Cracking Percent only apply to the rightmost travel lane or one consistent lane, if the rightmost travel lane is not accessible. Based on this, FHWA believes that the definitions of “mainline highways” and “full extent” do not conflict with other sections in this rule. The FHWA retains those definitions in the final rule. The Washington State DOT agreed with the definitions for “metric” and “measure,” and Mid-America Regional Council appreciated the distinction between the two terms. The FHWA retains the definitions for “metric” and “measure.” The Puget Sound Regional Council (PSRC) urged FHWA to consider allowing MPOs to establish performance targets that “encompass all areas within their planning boundary rather than only the Federally designated metropolitan planning area.” They added that this definition of area would allow for consistent infrastructure condition targets for the full region in the event the MPO target differs from the State target. To eliminate the ambiguity with the term “metropolitan planning area,” FHWA includes the definition for “metropolitan planning area” in this regulation as the term defined in the Statewide and Nonmetropolitan and Metropolitan Transportation Planning Regulations at 23 CFR 450.104. This term is used consistently as the extent of an MPO target that represents performance outcomes of the transportation network within the area. So the definition has been included to ensure consistency in interpretation by readers. In the NPRM, the term “non-urbanized area” was defined as “any geographic area that is not an `urbanized area' under either 23 U.S.C. 101(a)(34).” The FHWA received comments from Washington State and Virginia DOTs on the definition for “non-urbanized area.” The Washington State DOT supported the proposed definition. The Virginia State DOT pointed out that the proposed definition is missing a citation because only one citation (23 U.S.C. 101(a)(34)) was provided after the word “either.” The FHWA appreciates the comments from both agencies and examined the definition for better clarification while maintaining consistency with section 490.105(e)(3)(ii), which specifies a single collective non-urbanized area target and is consistent with the language in the final rule for safety performance measures. The FHWA also recognizes the word “either” was inadvertently included in the proposed definition. As a result, FHWA revised the definition for “non-urbanized area” to clearly indicate that a non-urbanized area is a single, collective area comprising all of the areas in the State that are not “urbanized areas” defined under 23 U.S.C. 101(a)(34). Only Washington State DOT commented on the definition for the term “performance period,” agreeing with the proposed definition. The FHWA retains the definition for “performance period.” The Washington State DOT agreed with the definition for “target.” The Minnesota DOT recommended the term “plan outcome” as opposed to “target” because they said that Minnesota DOT uses the term “target” to identify an aspirational performance objective to define investment need, as opposed to an objective that they expect to achieve within the constraints of the resources currently available.” The FHWA appreciates Minnesota DOT's suggestion on the term. However, FHWA retains the term “target” in the final rule because the term is referenced in the statute (23 U.S.C. 150(d), 134(h), 135(d), and 119(e)). As discussed in section 490.309 (Using Structure_Type to Identify and Exclude Bridges) and section 490.405, FHWA moves the definition of “bridge” from subpart D ( i.e., section 490.405) to this section in subpart A to use the term in a consistent manner throughout this rule. The FHWA strikes the term “this section” in the definition of “bridge” and replaces with the term “this Part” to ensure that the definition of “bridge” in this section applies to both subparts in the final rule. Therefore, the definition of “bridge” in the final rule is: “Bridge, as used in this Part, is defined in § 650.305 of this title, the National Bridge Inspection Standards.” Please see discussion sections for sections 490.309 and 490.405 for more detail. Finally, FHWA retains the definitions for “National Bridge Inventory” as proposed in the NPRM. There were no substantive comments regarding the definition. Discussion of Section 490.103 Data Requirements The FHWA proposed in section 490.103 of the NPRM, the data requirements that apply to more than one subpart in part 490. Additional proposed data requirements that are unique to each subpart are included and discussed in their respective subpart. Some comments from AASHTO and the State DOTs of Alaska and Connecticut referenced section 490.103 in their respective letters, but their comments were on the incorporation by reference of the HPMS Field Manual and NBI Coding Guide. Please refer to the discussion on section 490.111 on incorporation by reference for response and discussion. There were no direct comments on section 490.103(a). However, FHWA did correct the referenced subparts in section 490.103(a) by changing “B and C” to “C and D” so that the regulatory text correctly refers to the subparts in the final rule. In section 490.103(b), FHWA proposed that State DOTs submit urbanized area boundaries reported to HPMS in the year the Baseline Performance Period Report is due. Section 490.105(d)(3) specifies that the urbanized boundaries used in the Baseline Performance Period Report are applicable for the entire performance period, regardless of whether FHWA approves adjustments to the urbanized area boundary during the performance period. This provision was proposed because the urbanized area boundaries and resulting non-urbanized area boundary have the potential to change on varying schedules; and changing a boundary during a performance period may lead to changes in the measures reported for the area, which could impact how an established target relates to actual measured performance. The FHWA also explained in the NPRM that State DOT submitted boundary information would be the authoritative data source for: (1) The target scope for the additional targets for urbanized and non-urbanized areas (section 490.105(e)(3)); (2) progress reporting (section 490.107(b)); and (3) IRI rating (section 490.313(b)(1)) for the pavement condition measures identified in section 490.105(c)(1) through (3). The FHWA received four comments directly related to the urbanized area boundary. The Missouri State DOT supported that State DOT-submitted boundary information should be the authoritative data source for the target scope for the additional targets for urbanized and non-urbanized areas. The Oregon State DOT commented that keeping urbanized area constant for the performance measures' entire 4-year performance period is “too inflexible and may not reflect how investment decisions are actually made during the performance period due to changing route priorities.” They added that the proposed approach “looks backward in the mirror, rather than forward which is needed to incorporate up to date planning and policy.” The FHWA agrees with Oregon State DOT in that at the time of target establishment, agencies should be looking forward by incorporating up-to-date planning and policy decisions and anticipate future changes. Although planning and policy decisionmaking should be “forward-looking,” for the purpose of assessing the impact of investment on condition/performance, FHWA believes preserving consistent boundaries throughout a performance period is essential to consistently assess target achievement during a performance period. The Texas State DOT and Texas Association of Metropolitan Planning Organizations commented that guidance is needed on where an urbanized area boundary will be set in relation to bridges. They stated that in some cases, the midpoint of the structure has been used as the boundary. There should be a determination regarding this issue in relation to how these bridges are classified at urban/rural boundaries and, in the case of two adjacent MPO planning area boundaries, to which MPO area the structure is assigned. Considering these comments, FHWA plans to issue guidance on urbanized and non-urbanized target establishment, which will address issues related to bridge boundaries. Because the threshold values for IRI metric no longer depend on the location ( i.e., urbanized area with a population greater than 1 million) of pavement sections which is discussed in section 490.313(b)(1), FHWA revises sections 490.103(b) and 490.107(b)(1)(ii)(D) to remove the term “IRI rating determination.” Section 490.103(c) is reserved. No direct comment was received for section 490.103(d), and FHWA retains the language as proposed in the NPRM. Please see revised section 490.105(d)(3) for discussion on NHS limits and refer to the section 490.111 discussion section on the incorporation by reference. Discussion of Section 490.105 Establishment of Performance Targets In section 490.105 of the NPRM, FHWA proposed the minimum requirements that would be followed by State DOTs and MPOs in the establishment of targets for all measures identified in section 490.105(c). These requirements were proposed to implement the 23 U.S.C. 150(d) and 23 U.S.C. 134(h)(2) target establishment provisions in a manner that provides for the consistency necessary to evaluate and report progress at a State, MPO, and national level, while also providing a degree of flexibility for State DOTs and MPOs. A couple of general comments on section 490.105 were received by FHWA. The Oregon State DOT expressed their appreciation for the proposed rule allowing State DOTs to establish performance targets “without the unnecessary burden of an FHWA target approval process.” However, the Virginia State DOT commented that the proposed rule is “unclear on what may occur if FHWA disagrees with a State's proposed performance target and/or a State's strategy to meet that performance target.” They added that the “rule does not indicate what actions FHWA may take in such a situation, the rule as proposed sets up a possible point of future conflict between States and FHWA on how the State manages its resources in order to effectively manage its highway infrastructure to meet traffic demands and assure public safety.” However, the Virginia State DOT noted that they are in favor of the proposal's approach to States establishing targets. In response to the comment from Virginia State DOT, FHWA notes that there is no language in the NPRM or this rule related to FHWA's approval or rejection of established targets by State DOTs and MPOs because the statutory language in MAP-21 provides that State DOTs and MPOs have the ability to establish their own targets and MAP-21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. In the discussion for section 409.109 in the NPRM, FHWA stated that “State DOTs would, through a transparent and public process, want to establish or adjust targets that strive to improve the overall performance of the Interstate and National Highway systems.” The North Carolina State DOT requested clarification of the meaning of “transparent and public” in regard to the target establishment process. They asked if FHWA considered that State DOTs are already required to hold public hearings when they select projects for the Statewide Transportation Improvement Program (STIP), and if this would satisfy the target establishment requirement. The FHWA does not prescribe specific methods for making the target establishment process transparent and public. Please refer to the final Planning Rule 13 for performance requirements for the statewide transportation plan and STIP, including any requirements to include targets in the planning documents and the methods for developing those documents. 13 Final Rule on Statewide and Nonmetropolitan Transportation Planning; Metropolitan Transportation Planning (Regulatory Identification Number (RIN) 2125-AF52) on May 27, 2016, FR Vol. 81, No. 103. The Center for American Progress stated that MAP-21 established that a clear goal of Federal policy is to “maintain the highway infrastructure asset system in a state of good repair.” They added that “Congress did not intend for States to set their performance goals to include assets being in worse condition in the future than they currently are.” A letter from Steve Mueller Consultancy stated it would be “wrong to accept declining conditions on our roads of national importance.” They added that State DOTs and MPOs should reprioritize their expenditure plans to change because the declining condition is “unacceptable.” However, comments from AASHTO, Association of Metropolitan Planning Organizations (AMPO), Metropolitan Transportation Commission, Mid-America Regional Council, New York Metropolitan Transportation Council, city of Seattle Department of Transportation, an anonymous citizen, and the State DOTs of Alaska, Arkansas, California, Connecticut, Florida, Idaho, Iowa, Maine, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, South Dakota, Vermont, Washington State, and Wyoming stated that State DOTs and MPOs should have the flexibility to establish targets, including targets that have condition/performance holding steady or, in some situations, declining. They added that targets indicating declined condition/performance are discussed in the preamble of the NPRM but not in the proposed rule itself. These commenters recommended that specific language be included in the rule. The FHWA believes that State DOTs and MPOs have the authority to establish their targets at their discretion. Moreover, as stated previously in this section, MAP-21 does not provide FHWA the authority to approve or reject State DOT or MPO established targets. The FHWA believes that this rule does not hinder the ability of State DOTs and MPOs to establish targets that have performance holding steady or, declining targets. Thus, FHWA believes that specific language describing potential target level scenarios in the regulatory language is unnecessary. Therefore, FHWA retains the language in section 490.105(a). The FHWA did add “of this section” to the paragraph to meet the publication requirements of the Federal Register , and improve the clarity and consistency of the text. This addition did not change the intent of the original text in the NPRM. In section 490.105(b), FHWA proposed in the NPRM that State DOTs and MPOs shall establish performance targets for the HSIP measures in accordance with section 490.209. The Alaska Department of Transportation and Public Facilities (Alaska DOT&PF) recommended that this paragraph should be removed because section 490.209 is not part of this rulemaking. The FHWA disagrees with the comment because FHWA felt this paragraph is necessary to point out target establishment requirements related to the HSIP measures that are different from this subpart. Therefore, FHWA retains the language in section 490.105(b). The FHWA did not receive any substantive comments regarding section 490.105(c), therefore, FHWA made no changes. Discussion of Section 490.105(d) Ownership Section 490.105(d) specifies that the targets established by State DOTs and MPOs shall, regardless of ownership, represent the transportation network or geographic area, including bridges that cross State borders, that are applicable to the pavement and bridge condition measures. Title 23 U.S.C. 150(c)(3) requires the establishment of measures for State DOTs to use to assess the condition of pavements on the Interstate System, the condition of pavements on the NHS (excluding the Interstate), and the condition of bridges carrying the NHS which includes on- and off-ramps connected to the NHS for the purpose of carrying out the NHPP. Additionally, 23 U.S.C. 150(d) requires State DOTs to establish performance targets that reflect the established measures. Furthermore, 23 U.S.C. 119(e)(7) specifies State requirements when it does not achieve or make significant progress toward achieving the established performance measures targets for the NHS. To implement the statutory provisions of 23 U.S.C. 150(c)(3), FHWA proposed that the pavement condition measures in subpart C are applicable to the mainline highways on the Interstate System and on the non-Interstate NHS and the bridge condition measures in subpart D are applicable to bridges carrying the NHS which includes on- and off-ramps connected to the NHS (sections 490.307 and 490.403). To ensure that the performance targets required under 23 U.S.C. 150(d) are applicable to the same extent to highways and bridges as the performance measures in sections 490.307 and 490.403, FHWA included the phrase “regardless of ownership,” in section 490.105(d). To implement the requirements of 23 U.S.C. 119(e)(7), section 490.109(e) provides that FHWA would determine whether or not a State DOT achieved or made significant progress toward achieving the State DOT targets, consistent with the target scope described in section 490.105(d), for the NHS NHPP targets. In the NPRM, FHWA recognized the limit of the direct impact State DOTs and MPOs can have on the performance outcomes within the State and the metropolitan planning area, respectively, and that State DOTs and MPOs need to consider this uncertainty when establishing targets. The FHWA further stated that some Federal and tribal lands contain roads and bridges carrying the NHS, which includes on- and off-ramps connected to the NHS that State DOTs would need to consider (as appropriate) when establishing targets. Finally, FHWA expressed a need for State DOTs and MPOs to consult with relevant entities ( e.g., Federal Land Management agencies, State DOTs, MPOs, local transportation agencies, and tribal governments) as they establish targets to better identify and consider factors outside of their direct control that could impact future condition/performance. The FHWA received comments from 19 State DOTs (Arkansas, Colorado, Connecticut, Florida, Georgia, Iowa, Maine, Maryland, Michigan, Mississippi, Missouri, New Hampshire, Oklahoma, Oregon, Pennsylvania, Texas, Vermont, Virginia, and Washington State), AASHTO, AMPO, Atlanta Regional Council (ARC), Center for American Progress, Community Planning Association of Southwestern Idaho (COMPASS), National Association of Regional Councils (NARC), National Center for Pavement Preservation, NYMTC, Association of Texas Metropolitan Planning Organizations (TEMPO), and an anonymous commenter 14 generally indicating that State DOTs and MPOs have no authority or control over maintenance and/or investment decisions on some of the assets on NHS. Therefore, State DOTs and MPOs should not be held responsible for the reporting of data, target establishment, and the condition of these assets ( i.e., significant progress determination). The letters from the Connecticut, Virginia, and Washington State DOTs and AASHTO argued that State DOTs may not be able to legally collect data on assets they do not own. 14 FHWA-2013-0053-0135. The AASHTO, AMPO, ARC, and the Mississippi and Tennessee State DOTs recommended that each agency ( e.g., Federal Government, State DOT, tribal government, local agency, transit agency, and tolling authority) that has ownership of an NHS facility should report on and be held accountable for their portion of the system. As stated above, the statutory provisions under 23 U.S.C. 150(c)(3) require the establishment of measures for “States to use to assess (I) the condition of pavements on the Interstate System; (II) the condition of pavements on the [NHS] (excluding the Interstate); [and] the condition of bridges on the [NHS]” for the purpose of carrying out the NHPP. Also, 23 U.S.C. 150(d) requires States to establish performance targets that “reflect the established measures.” The MAP-21 also provides a description of the limits (or components) of the Interstate System and National Highway System in 23 U.S.C. 103(c) and 23 U.S.C. 103(b), respectively, and defines the terms “States” and “MPOs” in 23 U.S.C. 101(a)(25) and 23 U.S.C. 134 (b), respectively. This statutory language in MAP-21 prescribes the applicability of the NHPP under 23 U.S.C. 119 and the applicability of performance measures and the scope of performance targets under 23 U.S.C. 150. Considering this statutory language, MAP-21 requires that the performance management requirements (23 U.S.C. 150) and NHPP (23 U.S.C. 119) apply to the entire NHS and Interstate System and not to a subset of the NHS ( e.g., State DOT owned or operated Interstate System, State DOT owned or operated National Highway System), as the commenters would prefer. The MAP-21 does not define the terms “State” or “MPO” for purposes of 23 U.S.C. 150 and 119 as something other than already defined elsewhere in MAP-21. Accordingly, FHWA retains the language in section 490.105 (which requires that State DOTs and MPOs establish targets for the entire NHS and Interstate System within the State or metropolitan planning area, regardless of ownership). As stated in the NPRM, FHWA recognizes that there is a limit to the direct impact State DOTs and MPOs can have on the performance outcomes within the State and the metropolitan planning area, respectively. The FHWA encourages State DOTs and MPOs to consult with relevant entities ( e.g., Federal Land Management Agencies, local transportation agencies, and tribal governments) as State DOTs and MPOs report performance data and establish targets. This will allow for a better assessment of the condition of pavements and bridges on the entire NHS and better identify and consider factors outside of their direct control that could impact future condition/performance. In section 490.105(d), FHWA added the phrase “of this paragraph” to improve the clarity and consistency of the text. This addition did not change the intent of the original text in the NPRM. In section 490.105(d)(1), FHWA made an editorial correction and replaced the word “areawide” with “area wide.” The FHWA added cross reference numbers to section 490.105(d)(1)(i) through (iii) to clarify the specific section that corresponds to each measure. The original intent of the section did not change. Section 490.105(d)(2) is reserved. Discussion of Section 490.105(d)(3) NHS Limits In section 490.105(d)(3), FHWA proposed requiring State DOTs to declare and describe NHS limits in their Baseline Performance Period Report at the beginning of each performance period for the purpose of target establishment, reporting, and progress evaluation and significant progress determination. To ensure consistency of network for target establishment, reporting, and progress evaluation and significant progress determination, the proposed language in section 490.105(d)(3) further specified that any changes in NHS limits during a performance period would not be accounted for until the following performance period. As explained in the NPRM, FHWA proposed this methodology because it recognized that if NHS limits changed after a State DOT establishes its targets, actual measured performance of the transportation network within the changed NHS limits would represent a different set of highways as compared to what was originally used to establish the target. As a result, this difference could impact a State DOT's ability to make significant progress toward achieving targets. The FHWA received individual letters from ARC, Cemex USA, Oregon DOT, and Texas DOT and a joint letter from the ACPA and PCA in relation to dealing with changes in NHS limits during a performance period. The letter from Texas DOT stated that the proposed approach in dealing with NHS limit changes may cause “overly burdensome” bookkeeping to keep track of NHS network changes. A similar comment was found in the joint letter from ACPA and PCA and the letter from Cemex USA which stated that the proposed method does not take into consideration new pavements or additional lanes constructed, thereby inadvertently penalizing States for expanding the NHS as a means of upgrading performance. They recommended that the measures should reflect the changes in NHS limits. They also added that since the proposed measures are percentage-based, measures reflecting NHS changes would accurately take into consideration improvements made without “artificially altering” performance indicators. The Oregon DOT commented that the proposed approach appears to be too “inflexible” and may not reflect how investment decisions are actually made during the performance period due to changing route priorities. They added that the proposed approach “looks backward in the mirror rather than forward which is needed to incorporate up to date planning and policy.” Finally, ARC agreed with the proposed approach that a baseline network must be identified and “frozen” for purposes of a reporting cycle, but they suggested that at regular intervals ( i.e., 2 years), each State DOT should be permitted to adjust their networks and targets as they feel appropriate in collaboration with FHWA. The ARC commented that permitting the network to change on a regular basis does create a slight “apples to oranges” problem with analyzing long-term progress, but added that changes to the NHS network in reality are likely to be “infrequent and minimal” in impact when compared to the overall network. Some additional comments related to the NHS limits were received by FHWA. The TEMPO and Texas DOT commented that the criteria used to identify the NHS are still being developed. They added that if this issue is not addressed before reporting and evaluation deadlines are implemented, State DOTs and MPOs could expend significant resources collecting, analyzing, and maintaining data that is not part of the final NHS. They also indicated that some portions of the NHS will not be included in the performance management effort resulting in “missing” data segments. The TEMPO and Texas DOT recommended FHWA should not set deadlines for reporting on and evaluating performance measures until the NHS has been established nationwide and accepted by FHWA. The Seattle DOT made similar comments that before imposing NHS-specific regulatory requirements, FHWA should reassess current NHS designation criteria based on functional classification to consider critical routes based on multiple criteria such as person trip volumes rather than on vehicle miles traveled. The FHWA evaluated the arguments made by commenters regarding the approach for dealing with potential NHS limits changes during a performance period. The FHWA recognizes that NHS limits will directly impact the performance data collection coverage, measure calculation, the extent of targets, significant progress determination, and determination of minimum levels for condition of pavements and bridges. The FHWA agrees with the comments from ACPA, Cemex USA, PCA, and Texas DOT that the proposed approach would exclude realigned and newly constructed NHS roads/lanes in the measure calculation as a means of improved condition/ performance. In addition to the impacts of NHS expansion, FHWA examined NHS contraction. In case of a NHS contraction, the approach proposed in the NPRM would have required State DOTs to report metrics for the part of NHS no longer designated as NHS for the entire performance period. Moreover, for both expansion and contraction cases, FHWA anticipates that communicating and explaining to the general public the condition/performance of NHS based on previous NHS limit ( i.e., baseline) would be particularly difficult. In addition to evaluating the comments, FHWA analyzed historical changes in the NHS network using HPMS data for each State. Based on the historical data, in general, FHWA found that NHS network changes are relatively small except when NHS expansion was required under MAP-21. In such case, FHWA plans to issue guidance to deal with mandated changes in NHS limits for implementing performance management. After consideration of the comments and the issues associated with the proposed approach dealing with the NHS limit changes, FHWA revised section 490.105(d)(3) in the final rule. The State DOTs are no longer required to declare and describe NHS limits in their Baseline Performance Period Report so the changes in NHS limits during a performance period would be accounted for. Since the National Highway System Data Item in HPMS and the Highway System of the Inventory Route Data Item in NBI are required to be reported to FHWA annually together with condition metric data, NHS limits for pavement condition measures will come from the same dataset submitted to HPMS in the same year as the condition metric data is submitted. The NHS designation for bridge condition measures will come from the same NBI data set as the condition metric data of the same year. Accordingly, FHWA removed section 490.107(b)(1)(ii)(E) because State DOTs no longer have to declare and describe NHS limits in their Baseline Performance Period Report. Also, FHWA amended section 490.109(d)(4). The NHS information for the baseline conditions, for the purpose of the significant progress determination of the achievement of the pavement and bridge condition targets, will come from the data reported in HPMS and NBI in the year in which the Baseline Period Performance Report is due to FHWA. The FHWA believes that the revised approach will eliminate the burden of bookkeeping of the multiple data sets by State DOTs and MPOs and will improve communicating the performance with the public. The FHWA also believes that it will make the NHS extent consistent with other performance publications of State data ( e.g., Highway Statistics 15 and Condition and Performance Report to Congress 16 ). Since the calculated measure reflects the NHS limit change, States DOTs and MPOs should consider anticipated NHS limit changes when establishing their targets. 15 Highway Statistics (FHWA): https://www.fhwa.dot.gov/policyinformation/statistics.cfm. 16 Conditions and Performance Report to Congress (FHWA): https://www.fhwa.dot.gov/policy/2013cpr/. Discussion of Sections 490.105(e)(1) and 490.105(f)(1) Implementation Timeline for State DOTs and MPOs The FHWA proposed the requirements for State DOT and MPO performance targets in sections 490.105(e) and 490.105(f), respectively. Section 490.105(e)(1) specified the schedule for State DOT target establishment as “not later than 1 year of the effective date of this rule and for each performance period.” Also in the NPRM, section 490.105(f)(1) specified a schedule for MPO target establishment as “no later than 180 days after the respective State DOT(s) establishes their targets.” The proposed regulatory language specifying target establishment schedules came directly from the statutory language in MAP-21. 17 Accordingly, FHWA proposed a schedule in section 490.107(b) for State DOT target and progress reporting as the first report ( i.e., State Biennial Performance Report) that would be due to FHWA by October 1, 2016 and subsequent report due every 2 years on October 1 thereafter. The October 1, 2016, and subsequent biennial due dates are a statutory requirement. 18 To implement these statutory requirements in a consistent manner, FHWA proposed a definite period of time ( i.e., performance period) during which condition/performance would be measured, evaluated, and reported. The FHWA proposed a consistent time period of 4 calendar years that would be used to assess pavement and bridge conditions. The FHWA carefully examined this proposed time period so that it aligns with the timing of the biennial performance reporting requirements under 23 U.S.C. 150(e). This proposed time period is calendar year based so that it is consistent with data reporting requirements currently in place to report pavement and bridge conditions. 17 23 U.S.C. 150(d)(1) and 23 U.S.C. 134(h)(2)(C). 18 23 U.S.C. 150(e). During the development of the NPRM, FHWA anticipated the final rule for the proposal to be effective no later than October 1, 2015. The Oregon DOT commented that the effective date would be difficult to meet and suggested FHWA consider a delayed effective date of January 2017. As stated in the preamble of the NPRM, the October 1, 2015 date would have allowed for at least a 1-year period for State DOTs to establish targets so that they can be reported in the first biennial performance report ( i.e., Baseline Performance Period Report) that would be due to FHWA by October 1, 2016. The FHWA also stated in the preamble of the NPRM that it recognizes that if the final rule is effective after October 1, 2015, the due date to report State DOT targets for the first performance period may need to be adjusted, or FHWA would need to issue implementation guidance that would provide State DOTs a 1-year period to establish and report targets. The FHWA received numerous comments that the 1-year duration between the effective date of this rule and the first reporting of targets ( i.e., Baseline Performance Period Report for the first performance period) is difficult for State DOTs and MPOs to meet. The AASHTO and Connecticut DOT commented that the process to collect/analyze data, understand the trends, and establish targets will require additional time and that the submission of the first Baseline Performance Period Report by October 1, 2016, is “truly unrealistic.” The AASHTO and Mississippi and Connecticut DOTs argued that the opportunity for “cold weather States” to collect data for baseline condition/performance of 2015 is limited because all data has to be collected between the effective date (October 1, 2015) and the end of calendar year 2015 for 2016 condition/performance reporting. The North Dakota DOT and Seattle DOT made similar comments as AASHTO did. The Michigan and Minnesota DOTs expressed their support for the AASHTO comments. The Texas DOT commented that State DOTs will need more time to transition and measure the metrics required that are not currently collected, and to develop some history to establish the targets, especially for the Interstate since the proposed metric is based on the overall condition. The Mississippi DOT commented that many State DOTs already have multi-year contracts in place for their data collection. They said that the changes related to the expanded NHS and additional data requirements would make it impossible for many State DOTs to meet the proposed reporting timelines. Furthermore, they said that if additional data required under this rule is obtained, State DOTs will not have the historical data to analyze trends to effectively establish targets. The AMPO, COMPASS, and TEMPO made similar comments that the timeline in NPRM for identifying baseline condition/performance and reporting targets for the first performance period is “aggressive.” They added that the proposed timeline affords little ability or is insufficient for States to identify reasonably attainable targets. The Southeast Michigan Council of Governments (SEMCOG) commented that the additional and unfamiliar data requirements ( i.e., cracking, faulting, rutting, and roughness data) make it difficult to meet the accelerated timelines for collecting the data. They noted that the NPRM assumes that they will be able to work with the Michigan DOT and finish the reporting within 1 year. They commented that the reporting time will actually be much less than 1 year, especially in the first year. The Missouri DOT stated that including cracking, rutting, and faulting metrics under this rule needs to be delayed until national standards are developed and vetted through a quality control process. They added that these metrics will result in additional costs to collect, analyze, and manage the data. The New York State DOT cited that FHWA intends to use HPMS as a primary mechanism to report pavement performance data. The New York State DOT recommended that State DOTs be provided adequate time and resources to implement the necessary process and system changes. The Michigan DOT added that their pavement performance management “took years to develop, test, and refine” and recommended an alternative implementation schedule and process until the national measures mature enough that State DOTs become confident using them as the basis for investment decisions. The NYMTC “strongly objected” to the proposed October 1, 2015, effective date for the data collection and reporting requirements associated with the performance measure rules because they do not have sufficient information available about current pavement conditions using the proposed measures and data collection methods. They also added that, given the constraints on available data and analysis tools, they cannot predict the future conditions. The AASHTO and Connecticut and Tennessee DOTs suggested providing State DOTs the opportunity to extend the deadline if they demonstrate that they are working toward and making progress in adopting all requirements. The AASHTO and Connecticut and North Dakota DOTs commented that the coordination for establishing targets will require additional time because it encompasses a wide range of performance areas that can be influenced by local and regional needs. The Michigan State Transportation Commission and Michigan Asset Management Council commented that FHWA must allow State DOTs sufficient time to adequately coordinate with local agencies after the rules are finalized but before implementation begins. The AASHTO and Connecticut and Oregon DOTs recommended a 24-month phase-in period between the effective date and the first target reporting for the Interstate pavement and bridge condition measures in sections 490.307(a)(1) and (2) and 490.407(c). And, they recommended a 48-month phase-in period between the effective date and the first target reporting for the Non-Interstate NHS pavement condition measures in section 490.307(a)(3) and (4). The Alaska DOT&PF recommended at least a 4-year period to report all new data under this rule since the NHS has also changed with MAP-21. The AASHTO and Connecticut and Oregon DOTs also recommended delaying significant progress determination under section 490.109. The NYMTC also asked FHWA to consider the impacts of this proposed rule on State DOTs and MPOs that must adjust their planning and programming processes to the new requirements under this rule. The NYMTC requested that FHWA lengthen the amount of time before penalties are imposed so that State DOTs and other agencies could make adjustments while they have the maximum amount of flexibility in the use of available funding. The AASHTO and Connecticut and New Jersey DOTs commented that the time frame for enacting minimum condition level determination for bridges under section 490.413 is too short. They commented that State DOTs will have no time to assess their current situation and then implement reasonable projects to meet the 10 percent threshold. The AASHTO and Connecticut and Oregon DOTs recommended not determining minimum condition levels under sections 490.315 and 490.411 until 48 months after the effective date. The FHWA appreciates the comments on the proposed timeline. The FHWA understands that collection of new data items, development of tools, coordination, planning process adjustments, and integrating with other regulatory requirements to implement this rule will take time and effort for State DOTs. The FHWA recognizes that data required in section 490.309 for the pavement condition measures is new to some State DOTs. Therefore, FHWA amended the proposed data collection timeline for the pavement condition measures to reflect the effective date of this final rule. (See discussion section for section 490.309(a) for data collection timeline for the pavement measures.) Accordingly, FHWA retains phase-in requirements related to the targets for Interstate pavement measures and significant progress determination for those targets, as provided in sections 490.105(e)(1) and 490.109(e)(3), respectively, so that the effective date of this final rule is reflected. The FHWA also retains the transition of non-Interstate pavement measure in section 490.313(e) as proposed. In addition to the challenges associated with new data items, FHWA recognizes that State DOTs are challenged with NHS expansion, lack of historic data and analytical tools for establishing targets, additional coordination requirements, adjustment to their planning process, and integrating with other regulatory requirements. However, as stated previously, State DOT target establishment “not later than 1 year of the effective date of this rule” in section 490.105(e)(1) is a statutory requirement under 23 U.S.C. 150(d). The date for reporting progress toward targets of October 1, 2016 is also a statutory requirement in 23 U.S.C. 150(e). Therefore, FHWA cannot delay the due date of State DOT target establishment or reporting on performance targets. Since this rule is being issued and effective after October 1, 2016, FHWA issued guidance 19 on the Initial State Performance Report on August 31, 2016, to provide State DOTs the opportunity to comply with the statutory deadline for the first performance report under 23 U.S.C. 150(e). In this guidance, FHWA recognized that State DOTs would not have established targets for the measures in this rule. The FHWA simplified the reporting requirement by only requiring a description of the planned processes for target establishment and coordination with relevant MPOs and other agencies that will occur in the selection of targets. The FHWA has amended the implementation timeline to reflect the effective date of this final rule. (See subsequent discussion in this section for more details on timeline adjustments.) 19 FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/160831.cfm . In response to the comments from AASHTO and Connecticut and New Jersey DOTs above, FHWA disagrees that the time frame for enacting minimum condition level determination for bridges on the NHS is too short and that State DOTs will have no time to assess their current situation and then implement reasonable projects to attempt to meet the 10 percent threshold. The MAP-21 was enacted in October 2012. In September of 2012, FHWA provided initial guidance through its MAP-21 Bridge Q&A Web site 20 on how FHWA intended to implement the statutory requirements under the 23 U.S.C. 119(f)(2). Additionally, State DOTs are familiar with the classification of structurally deficient as it had been used for decades to implement the Highway Bridge Program. Because of this familiarity, State DOTs are well aware of their current situation in regards to structurally deficient bridges on the NHS. Based on FHWA guidance provided on the MAP-21 Bridge Q&A Web site, which describes the implementation schedule of the minimum condition level determination, and the familiarity State DOTs have with the classification of structurally deficient, State DOTs have had sufficient time to take actions to meet the 10 percent threshold. Because of its long implementation history and State DOTs' familiarity with the classification of structurally deficient bridges, FHWA believes that implementing the requirement of 23 U.S.C. 119(f)(2) does not depend on the effective date of this rule. Moreover, FHWA has been examining NBI data that State DOTs have been reporting since the enactment of MAP-21 and found sufficient evidence that State DOTs are taking actions to meet the statutory requirement. For example, if the 2013 NBI data was used as the baseline for structurally deficient bridges carrying the NHS, then there were potentially 13 State DOTs that would have been affected by the penalty if the trend of percentage structurally deficient deck area of greater than 10 percent continued for another 2 years. However, based on the 2014 NBI data, the number of State DOTs that would be affected by the penalty dropped to eight. Based on 2015 NBI data, the number dropped even further to six State DOTs. This dramatic change in the potential number of States leads FHWA to conclude that some State DOTs have taken action in addressing their NHS structurally deficient bridges. Therefore, FHWA believes that a delay in implementing the 23 U.S.C. 119(f)(2) provision is not necessary. 20 Question and Answer #2 at: http://www.fhwa.dot.gov/map21/qandas/qabridges.cfm. The Louisiana DOT recommended the first data collection cycle, to be used in performance analysis, be pushed back to a later date. The Louisiana DOT cited a large number of conflicts between HPMS, the AASHTO specifications, the Fiscal Management Information System (FMIS) requirements for HPMS, and the proposed rules. They commented that these conflicts will not allow an “apples to apples” data comparison or analysis between the current year and future years, nor among States. However, the Louisiana DOT did not identify how delaying the start of the data collection would mitigate the perceived conflicts or how anything having to do with the FMIS impacts the data reporting for HPMS. The FHWA understands that State DOTs will need some time to adjust contracts and programs to meet the data reporting requirements and the final rule has identified the first reporting dates to be 2019 for Interstate routes and 2021/2022 for non-Interstate NHS routes. A letter 21 from the State DOTs of Maine, New Hampshire, and Vermont recommended a bi-directional format to support FMIS, which intends to use HPMS data as its source. In the NPRM, FHWA proposed Interstate pavement condition data to be collected on both directions of the Interstate highway in section 490.309(b)(1)(i). However as a result of further studies, 22 FHWA amended section 490.309(b)(1)(i) so that the pavement condition data collection on Interstate is only required in one direction of highway, eliminating the need for examining a bi-directional format to support FMIS and the potential discrepancies with HPMS. 21 Docket Document FHWA-2013-0053-0096— http://www.regulations.gov/#!documentDetail;D=FHWA-2013-0053-0096. 22 “Evaluation of Pavement Conditions on the Interstate System: Preliminary Summary”, Rada 2015. The AMPO and COMPASS stated that the process for amending Metropolitan Planning Agreements is a time consuming and requires considerable opportunity for public input. They recommended a timeline that could lead to more realistic targets. The AASHTO, NYMTC, and Oregon and Washington DOTs urged FHWA to delay the MPO target establishment requirement until the start of the second performance period. They argued that there will be lack of complete ( i.e., full extent) performance data for cracking, rutting, and faulting for the Non-Interstate NHS, where full extent data will only be collected for the second half of the first performance period, as described in sections 490.309(b)(2)(ii) and 490.313(e). They added that until complete data is collected and evaluated, the MPOs might have a difficult time understanding the complexities of this data and establishing targets. They also recommended delay because it will allow additional time for State DOTs and MPOs to further develop their collaborative efforts in response to this rule and the Asset Management Plan rule (23 CFR 515). The NARC commented that additional time for MPOs would be helpful because of the significant collaboration and the data collection requirements in this rule. The SEMCOG expressed the opinion that a piecemeal approach is being used to develop the performance measures in this rule. This approach makes it difficult to identify the total system performance requirements, the complete data needs, and costs to collect the required data and to program and implement projects to address the performance measures. The FHWA appreciates these comments and understands that implementing this rule takes time and effort for MPOs as they face similar challenges to State DOTs. In response to comments related to the Metropolitan Planning Agreement, FHWA amended the language in section 490.107(c)(1) to remove the requirement to use the agreement as the means to document how MPOs will report their established targets to their respective State DOTs. The FHWA also amended the language in section 490.105(f)(8) to remove the requirement to document the target adjustment process in the Metropolitan Planning Agreement. (See discussion sections for sections 490.105(f)(8) and 490.107(c)(1) for more details on Metropolitan Planning Agreement for MPO target adjustment and reporting, respectively.) The FHWA re-iterates that the State DOT target establishment schedule of “not later than 1 year of the effective date of this rule” in section 490.105(e)(1) and MPO target establishment schedule of “no later than 180 days after the respective State DOT(s) establishes their targets” in section 490.105(f)(1) are statutory requirements under 23 U.S.C. 150(d) and 23 U.S.C. 134(h)(2)(C), respectively. Therefore, to meet the statutory mandates, FHWA cannot delay the due date of the MPO target establishment. (See discussion on MPO implementation schedule in section 490.105(f)(1).) As discussed above and in the NPRM, FHWA described its plans in the event that the final rule would not be effective until after October 1, 2015. The FHWA stated in the NPRM that, if it becomes clear that the final rule will not be effective until after October 1, 2015, FHWA would consider adjusting the first performance period in the final rule or would issue implementation guidance that would provide State DOTs a 1-year period to establish and report targets. As this rule is issued and effective after October 1, 2015, providing State DOTs less than 1 year to establish targets prior to the October 1, 2016 report, FHWA has amended the timeline in the final rule. These adjustments are necessary to ensure that State DOTs have at least 1 year between the effective date of this rule and biennial performance reporting of their target while adhering to the statutory reporting due dates 23 under 23 U.S.C. 150(e). Therefore, as stated in the NPRM, FHWA amended the due date for State DOT on reporting their targets for the first performance period from October 1, 2016, to October 1, 2018. To accommodate the amendment of the reporting date for the first performance period, FHWA adjusted the start of first performance period (and start dates for subsequent performance periods) in the final rule so that target reporting could be aligned with corresponding performance periods. Although the due date for State DOT on reporting their targets for the first performance period is October 1, 2018, this amendment does not exempt State DOTs from the October 1, 2016, report required under 23 U.S.C. 150(e). As such, FHWA issued guidance 24 on the Initial State Performance Report on August 31, 2016, to provide State DOTs the opportunity to comply with the statutory deadline for the first performance reporting under 23 U.S.C. 150(e). In this guidance, FHWA recognized that State DOTs would not have established targets for the measures in this rule. The FHWA simplified the reporting requirement by only requiring a description of the planned processes for target establishment and coordination with relevant MPOs and other agencies that will occur in the selection of targets. Since this final rule was not effective by October 1, 2015, FHWA adopted the following in this final rule: 23 Report no later than October 1, 2016 and biennially thereafter. 24 FHWA Guidance: Initial State Performance Report: http://www.fhwa.dot.gov/tpm/guidance/160831.cfm. • State DOTs shall establish targets for the first performance period not later than 1 year of the effective date of this rule as specified in section 490.105(e)(1) to meet the statutory requirement in 23 U.S.C. 150(d). • The MPOs shall establish targets for the first performance period no later than 180 days after the respective State DOTs establish their targets as specified in section 490.105(f)(1) to meet the statutory requirement under 23 U.S.C. 134(h)(2)(C). • The first performance period shall begin on January 1, 2018, and shall end on December 31, 2021, and subsequent 4-year performance periods shall follow thereafter, as provided in as provided in section 490.107(b) and shown in Figure 1 below. • The State DOTs will begin collec [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2017-00550. Public record. Not legal advice.