National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program |
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Brandye L. Hendrickson
Federal Highway Administration
5 October 2017
[Federal Register Volume 82, Number 192 (Thursday, October 5, 2017)]
[Proposed Rules]
[Pages 46427-46433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21442]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 490
[Docket No. FHWA-2017-0025]
RIN 2125-AF76
National Performance Management Measures; Assessing Performance
of the National Highway System, Freight Movement on the Interstate
System, and Congestion Mitigation and Air Quality Improvement Program
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This NPRM follows a series of related rules that established a
set of performance measures for State departments of transportation
(State DOT) and Metropolitan Planning Organizations (MPO) to use as
required by Moving Ahead for Progress in the 21st Century Act (MAP-21)
and the Fixing America's Surface Transportation (FAST) Act. In the last
of that series of rules, published on January 18, 2017, FHWA
established a measure on the percent change in carbon dioxide
(CO2) emissions from the reference year 2017, generated by
on-road mobile sources on the National Highway System (NHS) (also
referred to as the Greenhouse Gas (GHG) measure). Through this NPRM,
FHWA proposes to repeal the GHG measure.
DATES: Comments must be received on or before November 6, 2017. Late
comments will be considered to the extent practicable.
ADDRESSES: You may submit comments identified by the docket number
[[Page 46428]]
FHWA-2017-0025 by any one of the following methods:
Fax: 1-202-493-2251;
Mail: U.S. Department of Transportation, Docket Operations, M-30,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or electronically through the
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identifier Number (RIN) for this
rulemaking (2125-AF76). In accordance with 5 U.S.C. 553(c), DOT
solicits comments from the public to better inform its rulemaking
process. The DOT posts these comments, without edit, including any
personal information the commenter provides, to www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS), which can
be reviewed at www.dot.gov/privacy.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE.,
Washington, DC 20950, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For technical information: Susanna
Hughes Reck, Office of Infrastructure, (202) 366-1548; for legal
information: Anne Christenson, Office of Chief Counsel, (202) 366-1356,
Federal Highway Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590. Office hours are from 8 a.m. to 4:30 p.m. ET, Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
A copy of the NPRM, all comments received, and all background
material 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.ofr.gov and the Government Publishing
Office's Web site at http://www.gpo.gov.
Table of Contents for Supplementary Information
I. Executive Summary
A. Purpose of the Regulatory Action
B. Costs
II. Background
III. Acronyms and Abbreviations
IV. Rulemaking Analyses and Notices
A. Rulemaking Analysis and Notices: Executive Order 12866
(Regulatory Planning and Review), Executive Order 13563 (Improving
Regulation and Regulatory Review), Executive Order 13771 (Reducing
Regulation and Controlling Regulatory Costs), and DOT Regulatory
Policies and Procedures
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Executive Order 13132 (Federalism Assessment)
E. Executive Order 12372 (Intergovernmental Review)
F. Paperwork Reduction Act
G. National Environmental Policy Act
H. Executive Order 12630 (Taking of Private Property)
I. Executive Order 12988 (Civil Justice Reform)
J. Executive Order 13045 (Protection of Children)
K. Executive Order 13175 (Tribal Consultation)
L. Executive Order 13211 (Energy Effects)
M. Executive Order 12898 (Environmental Justice)
N. Regulation Identifier Number
I. Executive Summary
A. Purpose of the Regulatory Action
The MAP-21 \1\ (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.
The FAST Act \2\ (Pub. L. 114-94) continued these requirements.
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.
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\1\ Moving Ahead for Progress in the 21st Century Act (MAP-21):
https://www.gpo.gov/fdsys/pkg/PLAW-112publ141/html/PLAW-112publ141.htm.
\2\ Fixing America's Surface Transportation (FAST) Act: https://www.gpo.gov/fdsys/pkg/PLAW-114publ94/html/PLAW-114publ94.htm.
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As part of this mandate, FHWA issued three related national
performance management measure rules \3\ \4\ \5\ that established a set
of performance measures for State DOTs and MPOs to use to assess
performance. In these rules, FHWA established performance measures in
12 areas \6\ generalized as follows: (1) Serious injuries per vehicle
mile 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) performance of the Interstate
System; (9) performance of the non-Interstate NHS; (10) freight
movement on the Interstate System; (11) traffic congestion; and (12)
on-road mobile source emissions.
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\3\ First performance measure final rule: ``National Performance
Management Measures: Highway Safety Improvement Program'' (RIN 2125-
AF49): https://www.gpo.gov/fdsys/pkg/FR-2016-03-15/pdf/2016-05202.pdf.
\4\ Second performance measure final rule: ``National
Performance Management Measures; Assessing Pavement Condition for
the National Highway Performance Program and Bridge Condition for
the National Highway Performance Program'' (RIN 2125-AF53): https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/pdf/2017-00550.pdf.
\5\ Third performance measure final rule: ``National Performance
Management Measures: Assessing Performance of the National Highway
System, Freight Movement on the Interstate System, and Congestion
Mitigation and Air Quality Improvement Program'' (RIN 2125-AF54):
https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.
\6\ These areas are listed within 23 U.S.C. 150(c), which
requires the Secretary to establish measures to assess performance
or condition.
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One of the measures FHWA created to assess the performance of the
NHS under the National Highway Performance Program (NHPP) is Percent
Change in Tailpipe Carbon Dioxide (CO2) Emissions on the NHS
from the Calendar Year 2017 (also referred to as the GHG measure). It
was created to advance a policy preference of the prior Administration.
It would be calculated using data on fuel use and VMT. The FHWA
received a high volume of comments both in support of and opposed to
this measure in response to the third NPRM. This measure became
effective on DATE, 2017, at 82 FR CITE. After further consideration and
review of DOT policy, as well as the statutory provisions, the DOT is
proposing to repeal the requirement. This rulemaking provides
additional opportunity for public comment and submission of information
that will aid FHWA in making this determination.
B. Costs
As part of the rulemaking that was finalized in January 2017, FHWA
estimated the incremental costs associated with the new requirements
for a GHG Measure that represented a change to current practices of
DOT, State DOTs, and MPOs. The FHWA
[[Page 46429]]
derived the costs of the new requirements by assessing the additional
capital needed and the expected increase in the level of labor effort
for FHWA, State DOTs, and MPOs to calculate the measure and establish
and report GHG measure targets. To develop this estimate, FHWA sought
opinions from subject matter experts (SME). Cost estimates were
developed 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. Where necessary, capital costs were
also included. The 9-year cost discounted at 7 percent to comply with
the GHG measure discussed in this document is $11.0 million. By
proposing to remove the GHG measure in this rulemaking, FHWA is
proposing a deregulatory action that may result in cost-savings of
$11.0 million discounted at 7 percent over 9 years.
Table X displays the Office of Management and Budget (OMB) A-4
Accounting statement as a summary of the cost savings associated with
repealing the GHG measure.
Table X--OMB A-4 Accounting Statement
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Estimates Units
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Category Period Source/citation
Primary Low High Year Discount covered
dollar rate % (years)
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Benefits
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Annualized Monetized ($ None..................... None........... None........... NA 7 NA Not Quantified.
millions/year). None..................... None........... None........... NA 3 NA
Annualized Quantified.......... None..................... None........... None........... NA 7 NA Not Quantified.
None..................... None........... None........... NA 3 NA
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Qualitative.................... More informed decisionmaking on project, program, and policy choices. NPRM RIA.
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Costs
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Annualized Monetized ($/year).. -$1,682,339.............. ............... ............... 2014 7 9 NPRM RIA.
-$1,655,267.............. ............... ............... 2014 3 9
Annualized Quantified.......... None..................... None........... None........... 2014 7 9 NPRM RIA.
None..................... None........... None........... 2014 3 9
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Qualitative
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Transfers None
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From/To From:
To:
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Effects
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State, Local, and/or Tribal -$1,682,339.............. ............... ............... 2014 7 9 NPRM RIA.
Government. -$1,655,267.............. ............... ............... 2014 3 9
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Small Business................. Not expected to have a significant impact on a substantial NA NA NA NPRM RIA.
number of small entities.
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II. Acronyms and Abbreviations
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Acronym or abbreviation Term
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APA................................. Administrative Procedure Act.
CFR................................. Code of Federal Regulations.
CH4................................. Methane.
CMAQ................................ Congestion Mitigation and Air
Quality Improvement Program.
CO2................................. Carbon dioxide.
DOT................................. U.S. Department of Transportation.
EO.................................. Executive Order.
EERPAT.............................. Energy and Emissions Reduction
Policy Analysis Tool.
EIA................................. Energy Information Agency, U.S.
Department of Energy.
FAST Act............................ Fixing America's Surface
Transportation Act.
FHWA................................ Federal Highway Administration.
FR.................................. Federal Register.
GHG................................. Greenhouse gas.
HPMS................................ Highway Performance Monitoring
System.
HFCs................................ Hydrofluorocarbons.
MAP-21.............................. Moving Ahead for Progress in the
21st Century Act.
MOVES............................... Motor Vehicle Emission Simulator.
MPO................................. Metropolitan Planning
Organizations.
N2O................................. Nitrous oxide.
NHPP................................ National Highway Performance
Program.
NHS................................. National Highway System.
NPRM................................ Notice of proposed rulemaking.
NPMRDS.............................. National Performance Management
Research Data Set.
OMB................................. Office of Management and Budget.
PRA................................. Paperwork Reduction Act of 1995.
RIA................................. Regulatory Impact Analysis.
RIN................................. Regulatory Identification Number.
SMEs................................ Subject Matter Experts.
State DOTs.......................... State departments of
transportation.
U.S.C............................... United States Code.
VMT................................. Vehicle miles traveled.
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III. Background
The third performance measure NPRM was published on April 22, 2016
(81 FR 238060).\7\ The third performance
[[Page 46430]]
measure NPRM proposed a set of national measures for State DOTs to use
to assess the performance of the Interstate and non-Interstate NHS to
carry out the NHPP; to assess freight movement on the Interstate
System; and to assess traffic congestion and on-road mobile source
emissions for the purpose of carrying out the CMAQ Program.
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\7\ Third performance measure NPRM: ``Assessing Performance of
the National Highway System, Freight Movement on the Interstate
System, and Congestion Mitigation and Air Quality Improvement
Program'' (RIN 2125-AF54): https://www.gpo.gov/fdsys/pkg/FR-2016-04-22/pdf/2016-08014.pdf.
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In the preamble to the third performance measure NPRM, FHWA sought
public comment on whether and how to establish a CO2
emissions measure in the final rule. The FHWA asked a series of
questions regarding the design and implementation of a GHG measure and
whether one should be established.
The FHWA received thousands of comments on whether to establish
such a measure and how a measure should be designed and implemented.
Supporting comments came from 9 State DOTs, 24 MPOs, 19 U.S. Senators,
48 Members of the U.S. House of Representatives, over 100 cities,
numerous local officials, over 100 businesses, 91,695 citizens, and
over 100 public interest, non-profit and advocacy organizations. Some
State DOTs and MPOs already use GHG emissions as a performance measure.
Comments against a GHG measure were submitted by 10 State DOTs, 2
MPOs, 5 U.S. Senators, 31 Members of the U.S. House of Representatives,
and 27 transportation and infrastructure industry associations. In
addition, nine State DOTs and three industry associations requested
that FHWA not establish any performance measures not explicitly
authorized in legislation, because GHG is not identified in the
legislation.
Several of the commenters in both groups addressed whether FHWA has
the legal authority to establish a GHG measure and whether such measure
could be established in this rulemaking.
The FHWA published the third performance measure final rule on
January 18, 2017, at 82 FR 5971.\8\ The GHG policy established in the
final rule was the measure discussed in the third performance measure
NPRM: total annual tons of CO2 emissions from all on-road
mobile sources. The rule requires State DOTs to calculate the measure
by multiplying motor fuel sales volumes by emissions factors of
CO2 per gallon of fuel and percentage VMT on the NHS. A
metropolitan planning areawide GHG metric may be: (1) A share of the
State's (or States') VMT as a proxy for that metropolitan planning area
share of CO2 emissions; (2) VMT estimates along with MOVES
\9\ emissions factors; (3) FHWA's Energy and Emissions Reduction Policy
Analysis Tool (EERPAT) model; \10\ or (4) other method the MPO can
demonstrate has valid and useful results for CO2
measurement.
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\8\ https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.
\9\ EPA's Motor Vehicle Emissions Simulator (MOVES): https://www.epa.gov/moves.
\10\ FHWA's Energy and Emissions Reduction Policy Analysis Tool
(EERPAT) https://www.planning.dot.gov/FHWA_tool/default.aspx.
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On January 30, 2017, President Donald J. Trump issued Executive
Order 13771, entitled, ``Reducing Regulation and Controlling Regulatory
Costs,'' \11\ which required Federal agencies to take proactive
measures to reduce the costs associated with complying with Federal
regulations. Additionally, on February 24, 2017, the President issued
Executive Order 13777, entitled, ``Enforcing the Regulatory Reform
Agenda,'' \12\ which required Federal agencies to designate a
Regulatory Reform Office and a Regulatory Reform Task Force charged
with reviewing agency regulations. Furthermore, the Administration is
considering a number of policy changes with respect to climate change.
For example, the Administration has announced its intent to withdraw
from the Paris Accords. Pursuant to Executive Order 13771 and 13777,
the DOT commenced a review of existing and pending regulations, which
included the third performance measure final rule, to determine whether
changes would be appropriate to eliminate duplicative regulations and
streamline regulatory processes. Based upon this review, DOT identified
the GHG measure of the third performance measure final rule as being
potentially duplicative of existing efforts in some States, and
burdensome. Also, the performance management statute (23 U.S.C. 150)
does not explicitly require a GHG measure. For these reasons, this NPRM
proposes to repeal the GHG measure.
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\11\ 82 FR 9339, February 3, 2017. https://www.gpo.gov/fdsys/pkg/FR-2017-02-03/pdf/2017-02451.pdf.
\12\ 82 FR 10691, February 14, 2017. https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda.
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This rulemaking proposes to repeal the GHG measure, while seeking
additional public comment on whether to retain, or revise the GHG
measure established in the third performance measure final rule. This
rulemaking seeks additional information that may not have been
available to the Agency during the development of the final rule.
Additional information will aid FHWA in determining whether the measure
should be repealed, retained, or revised.
During the first public comment period, several commenters argued
that, should FHWA decide to establish a GHG measure, it should do so
through a separate rulemaking. They claimed that the third performance
measure NPRM did not provide sufficient detail about the type of
measure FHWA might adopt for them to comment on the issue meaningfully.
The FHWA believes that sufficient notice was provided in the third
performance measure NPRM under the Administrative Procedure Act (APA);
however, we are mindful that the third performance measure NPRM did not
include proposed regulatory text for the GHG measure. Although the APA
does not require proposed regulatory text to be included in the third
performance measure NPRM, FHWA acknowledges that the GHG measure was
presented differently than the other measures in that it was discussed
in the preamble using a series of questions to limit the scope of the
proposal. Some commenters stated that they found it difficult to
formulate meaningful comments using this approach alone.
In the third performance measure final rule preamble, FHWA
recognized that the GHG measure chosen--the percent change in tailpipe
CO2 emissions on the NHS compared to the Calendar Year 2017
level--is imperfect. It is measured by calculating fuel sales and
multiplying the associated CO2 emissions by the proportion
of VMT that takes place on the NHS. As noted in the final rule
preamble, this methodology is not a perfect proxy, as speeds, operating
conditions, and vehicle types on the NHS differ from those that are on
other roads and differ between States. The FHWA indicated that the
methodology adopted was a balance between the competing goals of
simplicity and precision. We request comments on whether the lack of
precision in the methodology markedly impedes the ability of State DOTs
and MPOs to use the measure and associated targets in evaluating system
performance and making investment decisions.
The FHWA is interested in whether data are available to more
directly measure GHG emissions effects of NHS projects undertaken by
States or MPOs. The FHWA is responsible for establishing the data
elements that are necessary to collect and maintain the standardized
data to carry out a performance-based approach under 23 U.S.C.
150(c)(3)(A)(iv). We request comments on whether the data used to
calculate the measure is precise enough
[[Page 46431]]
to meet these goals. Please identify any information that may mitigate
some of the limitations of the proposed GHG measure.
In addition, commenters are encouraged to provide information
regarding whether the measure, including the methodology adopted in the
final rule, provides meaningful utility for assessment of environmental
performance of the NHS by States and MPOs. Please provide any
information or data that would justify the utility of the measure
relative to the increased burden to the States and MPOs reporting this
information.
Finally, FHWA also requests input from States and MPOs on the
potential costs imposed by the addition of this measure in the third
performance measure final rule. Because a GHG measure was not proposed
in the NPRM, the costs were not presented in that economic analysis.
The FHWA did provide an assessment of the benefits and costs of all the
measures in the final rule. As part of this rulemaking, FHWA is
analyzing the costs associated solely with the GHG measure, and the
attendant savings that would result from its repeal. The FHWA requests
data from States and MPOs on the costs imposed due solely to the
addition of this measure. Given that several States are already
conducting efforts in this area, FHWA requests information on whether
the GHG measure is a duplicative requirement and whether FHWA's
estimate of the cost savings associated with a repeal of the GHG
measure are accurate. Additionally, FHWA requests information from
States not currently conducting similar efforts on the burdens this
measure would impose.
Further, in the final rule, the GHG measure was adopted under 23
U.S.C. 150(c)(3) (NHPP) and not 23 U.S.C. 150(c)(5) (CMAQ). As the
measure is under the NHPP program, State DOTs are subject to a
significant progress determination if they fail to achieve their
targets and, if they fail to make significant progress, additional
reporting requirements. Because of these potential burdens, FHWA
requests comments on any costs to States associated with the NHPP
significant progress determination for the GHG measure.\13\
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\13\ 23 CFR 490.109.
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IV. Rulemaking Analyses and Notices
A. Rulemaking Analysis and Notices Executive Order 12866 (Regulatory
Planning and Review), Executive Order 13563 (Improving Regulation and
Regulatory Review), Executive Order 13771 (Reducing Regulations and
Controlling Regulatory Costs), and DOT Regulatory Policies and
Procedures
The FHWA has determined that this action is a significant
regulatory action within the meaning of Executive Order (E.O.) 12866
and within the meaning of DOT regulatory policies and procedures due to
the significant public interest in regulations related to performance
management. It is anticipated that the economic impact of this
rulemaking will not be economically significant within the meaning of
E.O. 12866 as discussed below. This action complies with E.O.s 12866,
13563, and 13771 to improve regulation. This action is considered
significant because of widespread public interest in the transformation
of the Federal-aid highway program to be performance-based, although it
is not economically significant within the meaning of E.O. 12866.
The FHWA considers this proposed rule to be an E.O. 13771
deregulatory action, resulting in $11.0 million in cost-savings
discounted at 7 percent over 9 years. Details on the estimated cost
savings of this proposed rule are presented in the RIA (or regulatory
impact analysis), which may be accessed from the docket (docket number
FHWA-2013-0054). The RIA evaluates the economic impact, in terms of
costs and benefits, on Federal, State, and local governments, as well
as private entities regulated under this action, as required by E.O.
12866 and E.O. 13563. However, the RIA does not attempt to quantify any
changes from improved decisionmaking that would result in benefits if
the GHG measure requirement were retained.
Estimated Cost Savings of Repealing the GHG Measure
To estimate cost savings from repealing the GHG measure, FHWA
assessed the level of effort, expressed in labor hours and categories,
and the capital needed to comply with the requirement as provided in
the third performance management final rule. Level of effort by labor
category is monetized with loaded wage rates to estimate total costs.
Table X displays the total cost for the GHG measure for the 9-year
study period (2018-2026). The FHWA chose an 9-year analysis period and
displayed the values in 2014 dollars in order to correlate the values
presented in this NPRM with those presented in the third performance
measure final rule. Total costs are estimated to be $10,960,828
discounted at 7 percent, and $12,888,091 discounted at 3 percent.
Table X--Total Cost Savings From Repealing the GHG Measure
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9-Year total cost Annualized cost
Cost components ---------------------------------------------------------------
7% 3% 7% 3%
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Section 490.105-490.109--Reporting Requirements. $9,090,263 $10,652,791 $1,395,232 $1,368,179
Establish and Update Performance Targets........ 6,368,958 7,392,818 977,549 949,488
Reporting on Performance Targets Progress....... 2,573,869 3,068,421 395,054 394,089
Assess Significant Progress Toward Achieving 147,435 191,552 22,629 24,602
Performance Targets............................
Section 490.511--Calculation of System 1,821,862 2,177,239 279,631 279,631
Performance Metrics............................
Calculate Annual Total Tailpipe CO2 Emissions... 1,821,862 2,177,239 279,631 279,631
Section 490.513--Calculation of System 48,703 58,061 7,475 7,457
Performance Measures...........................
Calculate % Change in Tailpipe CO2 Emissions the 48,703 58,061 7,475 7,457
NHS Compared to the Calendar Year 2017 Level
Perf. Measure..................................
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Total Cost of Final Rule.................... 10,960,828 12,888,091 1,682,339 1,655,267
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This action complies with the principles of E.O. 13563. After
evaluating the costs and benefits of the rule, FHWA believes that the
cost savings from this rulemaking would exceed the foregone benefits.
These changes are not anticipated to adversely affect, in any material
way, any sector of the economy. In addition, these
[[Page 46432]]
changes will not create a serious inconsistency with any other agency's
action or materially alter the budgetary impact of any entitlements,
grants, user fees, or loan programs.
B. Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this action on
small entities and has determined that the action would not have a
significant economic impact on a substantial number of small entities.
The rule addresses the obligation of Federal funds to State DOTs for
Federal-aid highway projects. The rule affects two types of entities:
State governments and MPOs. State governments do not meet the
definition of a small entity under 5 U.S.C. 601, which have a
population of less than 50,000.
The MPOs are considered governmental jurisdictions, and to qualify
as a small entity they would need to serve less than 50,000 people. The
MPOs serve urbanized areas with populations of 50,000 or more. As
discussed in the RIA, the rule is expected to impose costs on MPOs that
serve populations exceeding 200,000. Therefore, the MPOs that incur
economic impacts under this rule do not meet the definition of a small
entity.
I hereby certify that this regulatory action would not have a
significant economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act of 1995
The FHWA has determined that this action does not impose unfunded
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not include a
Federal mandate that may result in expenditures of $151 million or more
in any 1 year (when adjusted for inflation) in 2012 dollars for either
State, local, and tribal governments in the aggregate, or by the
private sector. Additionally, the definition of ``Federal mandate'' in
the Unfunded Mandates Reform Act excludes financial assistance of the
type in which State, local, or tribal governments have authority to
adjust their participation in the program in accordance with changes
made in the program by the Federal Government. The Federal-aid highway
program permits this type of flexibility.
D. Executive Order 13132 (Federalism Assessment)
The FHWA has analyzed this action in accordance with the principles
and criteria contained in E.O. 13132. The FHWA has determined that this
action does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA has also determined
that this action does not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
E. Executive Order 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities apply to this program.
Local entities should refer to the Catalog of Federal Domestic
Assistance Program Number 20.205, Highway Planning and Construction,
for further information.
F. Paperwork Reduction Act
Under the PRA (44 U.S.C. 3501, et seq.), Federal agencies must
obtain approval from the OMB for each collection of information they
conduct, sponsor, or require through regulations. The DOT has analyzed
this action under the PRA and has determined that this rulemaking does
not contain collection of information requirements for the purposes of
the PRA. If finalized, this proposal would reduce PRA burdens
associated with this measure.
G. National Environmental Policy Act
The FHWA has analyzed this action for the purpose of NEPA, as
amended (42 U.S.C. 4321 et seq.), and has determined that this action
would not have any effect on the quality of the environment and meets
the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).
H. Executive Order 12630 (Taking of Private Property)
The FHWA has analyzed this action under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights. The FHWA does not anticipate that this action would affect a
taking of private property or otherwise have taking implications under
E.O. 12630.
I. Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
J. Executive Order 13045 (Protection of Children)
We have analyzed this rule under E.O. 13045, Protection of Children
from Environmental Health Risks and Safety Risks. The FHWA certifies
that this action would not cause an environmental risk to health or
safety that might disproportionately affect children.
K. Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this action under E.O. 13175, dated November
6, 2000, and believes that the action would not have substantial direct
effects on one or more Indian tribes; would not impose substantial
direct compliance costs on Indian tribal governments; and would not
preempt tribal laws. The rulemaking addresses obligations of Federal
funds to State DOTs for Federal-aid highway projects and would not
impose any direct compliance requirements on Indian tribal governments.
Therefore, a tribal summary impact statement is not required.
L. Executive Order 13211 (Energy Effects)
The FHWA has analyzed this action under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The FHWA has determined that this is not a
significant energy action under that order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.
M. Executive Order 12898 (Environmental Justice)
The E.O. 12898 requires that each Federal agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. The FHWA has
determined that this rule does not raise any environmental justice
issues.
N. Regulation Identifier Number
An RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in April and October of each year.
The RIN number contained in the heading of this document can be used to
cross-reference this action with the Unified Agenda.
[[Page 46433]]
List of Subjects in 23 CFR Part 490
Bridges, Highway safety, Highways and roads, Reporting and
recordkeeping requirements.
Issued in Washington, DC, on September 29, 2017 under authority
delegated in 49 CFR 1.85.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
In consideration of the foregoing, FHWA proposes to amend 23 CFR
part 490 to read as follows:
PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES
0
1. The authority citation for part 490 continues to read as follows:
Authority: 23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85.
Subpart A--General Information
Sec. 490.105 [Amended].
0
2. Amend Sec. 490.105 by removing and reserving paragraphs (c)(5) and
(d)(1)(v).
Sec. 490.107 [Amended].
0
3. Amend Sec. 490.107 by removing and reserving paragraphs
(b)(1)(ii)(H), (b)(2)(ii)(J), (b)(3)(ii)(I), and (c)(4).
0
4. Amend Sec. 490.109 by removing and reserving paragraphs (d)(1)(v)
and (f)(1)(v) and revising paragraph (d)(1)(vi) to read as follows:
Sec. 490.109 Assessing significant progress toward achieving the
performance targets for the National Highway Performance Program and
the National Highway Freight Program.
* * * * *
(d) * * * (1) * * *
(vi) Baseline condition/performance data contained in HPMS and NBI
of the year in which the Baseline Period Performance Report is due to
FHWA that represents baseline conditions/performances for the
performance period for the measures in Sec. Sec. 490.105(c)(1) through
(4).
* * * * *
Subpart E--National Performance Management Measures to Assess
Performance of the National Highway System
Sec. 490.503 [Amended].
0
5. Amend Sec. 490.503 by removing and reserving paragraph (a)(2).
Sec. 490.505 [Amended].
0
6. Amend Sec. 490.505 by removing the definition for ``Greenhouse gas
(GHG).''
Sec. 490.507 [Amended].
0
7. Amend Sec. 490.507 by removing and reserving paragraph (b).
Sec. 490.509 [Amended].
0
8. Amend Sec. 490.509 by removing paragraphs (f)-(h).
Sec. 490.511 [Amended].
0
9. Amend Sec. 490.511 by removing and reserving paragraphs (a)(2),
(c), (d), and (f).
Sec. 490.513 [Amended].
0
10. Amend Sec. 490.513 by removing paragraph (d).
[FR Doc. 2017-21442 Filed 10-4-17; 8:45 am]
BILLING CODE 4910-22-P