[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 
(CO<INF>2</INF>) 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 (CO<INF>2</INF>) 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
                                -------------------------------------------------------------------------------------------------
            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
                                -------------------------------------------------------------
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 CO<INF>2</INF> 
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 CO<INF>2</INF> 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 
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 
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 
CO<INF>2</INF> emissions on the NHS compared to the Calendar Year 2017 
level--is imperfect. It is measured by calculating fuel sales and 
multiplying the associated CO<INF>2</INF> 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
----------------------------------------------------------------------------------------------------------------
                                                         9-Year total cost                Annualized cost
                 Cost components                 ---------------------------------------------------------------
                                                        7%              3%              7%              3%
----------------------------------------------------------------------------------------------------------------
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..................................
                                                 ---------------------------------------------------------------
    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