[Federal Register Volume 68, Number 5 (Wednesday, January 8, 2003)]
[Proposed Rules]
[Pages 1096-1104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-104]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 972

[FHWA Docket No. FHWA-99-4970]
RIN 2125-AE54


Federal Lands Highway Program; Management Systems Pertaining to 
the Fish and Wildlife Service and the Refuge Roads Program

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: The Transportation Equity Act for the 21st Century (TEA-21) 
requires the Secretary of Transportation and the Secretary of each 
appropriate Federal land management agency to develop, to the extent 
appropriate, safety, bridge, pavement, and congestion management 
systems for roads funded under the Federal Lands Highway program 
(FLHP). The Secretary of Transportation has delegated the authority to 
the FHWA to serve as the lead agency within the U.S. DOT to implement 
the FLHP. The roads funded under the FLHP include Park Roads and 
Parkways, Forest Highways, Refuge Roads, and Indian Reservation Roads. 
This rulemaking proposes to provide for the development and 
implementation of safety, bridge, pavement, and congestion management 
systems for transportation facilities serving the National Wildlife 
Refuge System (Refuge System) funded under the FLHP.

DATES: Comments must be received on or before March 10, 2003.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590, or submit electronically at http://dmses.dot.gov/submit. All comments should include the docket number 
that appears in the heading of this document. All comments received 
will be available for examination and copying at the above address 
between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal 
holidays. Those desiring notification of receipt of comments must 
include a self-addressed, stamped postcard or you may print the 
acknowledgment page that appears after submitting comments 
electronically.

FOR FURTHER INFORMATION CONTACT: Mr. Bob Bini, Federal Lands Highway, 
HFPD-2, (202) 366-6799, FHWA, 400 Seventh Street, SW., Washington, DC

[[Page 1097]]

20590; office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday 
through Friday, except Federal holidays. For legal questions, Ms. 
Vivian Philbin, HFL-16, (303) 716-2122, FHWA, 555 Zang Street, 
Lakewood, CO 80228. Office hours are from 7:45 a.m. to 4:15 p.m., m.t., 
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System (DMS): http://dmses.dot.gov/submit. Acceptable 
formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 
6 to 8), Rich Text File (RTF), American Standard Code Information 
Interchange (ASCII)(TXT), Portable Document Format (PDF), and 
WordPerfect (versions 7 to 8). The DMS is available 24 hours each day, 
365 days each year. Electronic submission and retrieval help and 
guidelines are available under the help section of the Web site.
    An electronic copy of this document may be downloaded by using a 
computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may reach the Office of the Federal Register's 
home page at: http://www.nara.gov/fedreg and the Government Printing 
Office's web page at: http://www.access.gpo.gov/nara.

Background

    Section 1115(d) of the TEA-21 (Public Law 105-178, 112 Stat. 107, 
156 (1998)) amended 23 U.S.C. 204 to require the Secretary of 
Transportation and the Secretary of each appropriate Federal land 
management agency, to the extent appropriate, to develop safety, 
bridge, pavement, and congestion management systems for roads funded 
under the FLHP. A management system is a process for collecting, 
organizing and analyzing data to provide a strategic approach to 
transportation planning, program development, and project selection. 
Its purposes are to improve transportation system performance and 
safety, and to develop alternative strategies for enhancing mobility of 
people and goods.
    The roads funded under the FLHP include, but are not limited to, 
Park Roads and Parkways, Forest Highways, Refuge Roads, and Indian 
Reservation Roads. The Secretary of Transportation delegated to the 
FHWA the authority to serve as the lead agency within the U.S. 
Department of Transportation to administer the FLHP (see 49 CFR 
1.48(b)(29)). This rulemaking action addresses the management systems 
for the Fish and Wildlife Service (FWS) and the Refuge Roads program.
    On September 1, 1999, the FHWA issued an advance notice of proposed 
rulemaking (ANPRM) to solicit public comments concerning development of 
this proposed rule pertaining to the FWS and the Refuge Roads program 
(64 FR 47741). The ANPRM requested comments on the feasibility of 
developing a rule to meet both the transportation planning and 
management systems requirements of the TEA-21. Therefore, comments made 
to the docket addressed both transportation planning and management 
systems issues. However, the FHWA has decided to publish separate NPRMs 
for transportation planning and management systems. For this reason, 
this NPRM concerns only the development of the management systems. This 
NPRM includes responses to the comments submitted to the docket on the 
ANPRM that addressed the proposed development of the four management 
systems. Those comments on the ANPRM that addressed transportation 
planning will be addressed at a later date. The FHWA received comments 
addressing the management systems from various State Departments of 
Transportation. These comments are summarized below. Specific comments 
may be obtained by reviewing the materials in the docket.
    Based on the comments on the ANPRM, the FHWA has developed this 
NPRM to provide for the development and implementation of pavement, 
bridge, safety, and congestion management systems for transportation 
facilities serving the Refuge System funded under the FLHP. Separate 
NPRMs on management systems have also been developed for the National 
Park Service (NPS) and the Park Roads and Parkways program, the Forest 
Service (FS) and the Forest Highway program, and the Bureau of Indian 
Affairs (BIA) and the Indian Reservation Roads program. The other three 
related NPRMs are published elsewhere in today's Federal Register.
    On April 21, 2000, then President Clinton issued Executive Order 
(EO) 13148, Greening the Government Through Leadership in Environmental 
Management. This EO requires all Federal agencies to implement an 
environmental management system (EMS) to ensure that agencies develop 
strategies to support environmental leadership in programs, policies, 
and procedures and that senior level managers explicitly and actively 
endorse these strategies. The EO requires that agencies implement an 
EMS no later than December 31, 2005. Furthermore, in an April 1, 2002, 
letter, the Bush Administration encouraged all agencies to promote the 
use of EMS in Federal, State, local, and private facilities and 
directed the Environmental Protection Agency (EPA) to report annually 
on how well each agency has done in promoting EMS.
    The FHWA has already begun working toward establishing an EMS. 
Additionally, the FWHA is working with the American Association of 
State Highway and Transportation Officials' (AASHTO) Center for 
Environmental Excellence to include EMS as part of an environmental 
stewardship demonstration project. The FHWA is currently providing 
technical and financial assistance to the Center, which in turn 
supports States that have initiated EMSs.\1\ Furthermore, the FHWA 
continues to demonstrate environmental stewardship by encouraging the 
use of EMS in the construction, operation, and maintenance of 
transportation facilities.
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    \1\ More information on how EMS applies to transportation 
organizations can be found on the AASHTO's Center for Environmental 
Excellence Web site at the following URL: http//itre.ncsu.edu/AASHTO/stewardship.
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    Although an EMS may have some overlap with the four management 
systems that are the subject of this proposed rulemaking, the FHWA has 
decided not to incorporate the EMS in this rulemaking. The FHWA 
believes that great progress has been made on the EMS and promoting the 
use of EMS by the States. In addition, the FHWA has a long-standing 
working relationship with the Federal Land Management Agencies (FLMAs) 
through the Federal Lands Highway Program. The natural resource 
conservation and preservation missions of these agencies have led to 
the development of a jointly held environmental ethic that pervades 
transportation project decision-making through the use of context 
sensitive design, best management practices, and a heightened 
sensitivity to environmental impacts. This relationship provides a 
strong foundation for the FHWA to encourage the use of environmental 
management systems by the FLMAs. For example, the National Park Service 
currently has an initiative underway to implement a service-wide EMS 
approach. The FHWA and the NPS can evaluate ways to coordinate the use 
and development of the EMS with the transportation management systems 
through the joint development of the management system implementation 
plan called for in this

[[Page 1098]]

rulemaking. A similar approach can be used with all of the FLMAs.
    Any EMS developed by the FHWA, or by a FLMA, will not have an 
adverse effect on any of the management systems in this proposed 
rulemaking. Instead, such an EMS may help foster a movement toward the 
use of a comprehensive asset management system that incorporates EMS, 
along with the transportation management systems proposed in this 
rulemaking, and others not covered in this proposed action, such as a 
maintenance management system. The role of the EMS in a more 
comprehensive approach would demonstrate a commitment to environmental 
stewardship that goes beyond the individual project level or the 
development of a multi-project transportation program. The EMS should 
be a fundamentally important business tool that pervades all aspects of 
FLMA transportation decision-making. The FHWA will continue to advance 
its EMS and promote the EMS initiatives of the FLMAs through 
implementation planning for the transportation management systems. In 
addition, the FHWA will continue to promote the use of EMSs in the 
construction, operation, and maintenance of transportation facilities.
    In developing the management system implementation plans, the need 
for data elements that address the environmental performance measures 
can be evaluated in relationship to individual agency plans to 
implement an EMS. This could provide an opportunity for the ongoing 
collection of environmental information, if appropriate and necessary. 
At a minimum, this would provide an opportunity to link existing 
environmental data to the transportation management systems using a 
geographic information system common to both systems.
    From the FHWA's stewardship perspective regarding the Federal Lands 
Highway Program, EMS is most appropriately pursued as part of sound 
FLMA business management planning. Thus, the FHWA has decided not to 
address the EMS requirement in this proposed rulemaking action.

Summary of Comments Received on the ANPRM Pertaining to the FWS and the 
Refuge Roads Program

    The following discussion summarizes the comments received on the 
ANPRM and the FHWA's response to these comments. This discussion 
provides the public a general sense of the issues addressed in the 
comments. As previously stated, this NPRM is intended for the 
development of management systems. Therefore, this summary contains 
only comments and responses related to the management systems. There 
are instances where reference is made to transportation planning issues 
because the management systems serve as a guide to planning activities.

Rule Development

    Comments: The majority of comments supported the FHWA's proposal to 
develop ``separate rules'' pertaining to the FWS and the Refuge Roads 
program, the NPS and the Park Roads and Parkways program, the BIA and 
the Indian Reservations Roads program, and the FS and the Forest 
Highway program. The commenters in favor of this proposal pointed out 
the fact that transportation planning functions for the different 
Federal lands highways are performed by various Federal, State, and 
local entities, depending on ownership of the roadways and 
responsibilities for constructing and maintaining the facilities.
    The Wisconsin DOT and the Kentucky Transportation Cabinet offered 
an opposite view. These two State Transportation Departments requested 
that we develop only one general rule applicable to all four agencies. 
The Wisconsin DOT suggested that this rule be flexible so that it 
recognizes the different approaches used by the States. The Kentucky 
Transportation Cabinet recommended that the rule should require the 
Federal land management agencies (FLMAs) to develop Memoranda of 
Understanding or Agreements that would address the consistency between 
the Federal land transportation planning procedures and those required 
under 23 U.S.C. 134 and 135. The Kentucky Transportation Cabinet was 
concerned that the additional rules might jeopardize existing 
procedures already in effect.
    Response: Following the recommendations from the majority of 
commenters, the FHWA, in consultation with each appropriate Federal 
land management agency, developed a separate rule pertaining to each 
agency: The FWS, the NPS, the FS, and the BIA. The variance among the 
rules allows for the significant differences in the ownership, 
jurisdiction, and maintenance responsibilities that the FLMAs exercise 
over the subject roadways addressed in the rule. To ensure uniformity, 
the FHWA coordinated the development of each NPRM, so that similar text 
and format are contained in each of the rules.

Addressing the Management Systems Requirements

    Comments: Many States believe that the management systems should 
only be developed as needed and should relate to systems that are 
already implemented by States and local agencies. It was recommended 
that the FHWA encourage the Federal agencies to explore and use the 
States' existing systems. The States also recommended the systems be 
tailored to fit local conditions, and be applicable solely to the 
portion of the Federal lands highways owned and maintained by Federal 
agencies. Many of the States are concerned that the implementation of 
the management systems may affect the current working relationships 
among State, Tribal, local, and Federal agencies. The Wisconsin DOT 
encouraged the FHWA to work with the FLMA's and State Transportation 
Departments to clarify ownership discrepancies between Federal and 
State data. They suggested that the FLMA's have accurate data 
reflecting the amount of mileage the agencies own by location. Further, 
these data have to agree with data reported by States in the Highway 
Performance Monitoring System (HPMS) database.\2\
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    \2\ The HPMS was developed in 1978 as a national highway 
transportation system database. It includes limited data on all 
public roads, more detailed data for a sample of the arterial and 
collector functional system, and certain summary information for 
urbanized, small urban and rural areas. Additional information about 
this database is available online at the URL: http://www.fhwa.dot.gov/ohim.
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    Response: The stakeholders' concerns presented above were 
considered in the development of this NPRM. Each of the proposed 
management system rules calls for the FHWA, in cooperation with the 
FLMA, to develop an implementation plan or implementation procedures 
for each of the management systems. In addition, flexibility is 
provided to determine criteria for the need and applicability of each 
of the FLMAs management systems. These implementation plans will 
provide the opportunity to relate the FLMA management systems to 
systems already implemented by States and local agencies. It will also 
allow the management systems to be tailored to fit a broad range of 
local conditions, and to avoid inefficient duplication of management 
systems already in use by the States. Development of the implementation 
plans will provide an opportunity to strengthen the working 
relationships among Federal, State, Tribal and local agencies, as well 
as define responsibility for and ownership of data.

[[Page 1099]]

    Comments: The Wisconsin DOT also stated that the FHWA should 
clarify that this rule and the National Highway System (NHS) 
Designation Act of 1995, Public Law 104-59, 109 Stat. 568, do not make 
the implementation of management systems mandatory.
    Responses: While it is correct that the Public Law 104-59 made the 
management systems optional for States and Metropolitan Planning 
Organizations (MPOs), except for the congestion management systems in 
MPOs with a population of greater than 200,000, section 1115(d) of TEA-
21 applies to the Federal land management agencies, not directly to the 
States; however, States may be requested to provide information. The 
TEA-21, enacted on June 9, 1998, amended 23 U.S.C. 204 to specify ``The 
Secretary and the Secretary of each appropriate Federal land management 
agency shall, to the extent appropriate, develop by rule safety, 
bridge, pavement, and congestion management systems for roads funded 
under the Federal lands highways program.'' Therefore, the development 
and implementation of the management systems, where appropriate, is 
mandated by law for the Federal land management agencies.

Approach to Structure of Proposed Regulation

    In the development of this proposed rule, the FHWA has attempted to 
minimize the level of data collection and analyses required. The FHWA 
now solicits comments on the extent to which this strategy has been 
achieved. Any comments suggesting that the strategy has not been 
successful should identify the specific reasons why requirements and/or 
provisions are burdensome. Suggestions to lessen burdens are welcome.

Section-by-Section Analysis

Subpart A

Section 972.100 Purpose

    This section states that subpart A provides definitions for terms 
used in this rule.

Section 972.102 Applicability

    This section states that the definitions in subpart A are 
applicable to this rule.

Section 972.104 Definitions

    This section incorporates the terms defined in 23 U.S.C. 101(a), 49 
U.S.C. 5302, and 23 CFR part 450. It also includes additional 
definitions for terms used in this part.
    The phrase ``Federal lands'' or ``Indian lands,'' as applicable, 
would be added to the definitions of ``bridge management system 
(BMS),'' ``congestion management system (CMS),'' ``pavement management 
system (PMS),'' and ``safety management system (SMS)'' to indicate the 
distinction between the Federal or Indian lands, and Federal-aid 
management systems (refer to 23 CFR part 500 for definitions of the 
Federal-aid management systems). The management system definitions also 
specify their applicability to the BIA, FS, FWS and NPS, as 
appropriate.

Subpart B

Section 972.200 Purpose

    This section states the purpose of this proposed rule, which is to 
fulfill the requirements set forth by the TEA-21.

Section 972.202 Applicability

    This section defines the applicability of the management systems.

Section 972.204 Management Systems Requirements

    This section sets forth general requirements for all four 
management systems. Additional requirements applicable to specific 
systems are in Sec. Sec.  972.208 through 972.214.
    Paragraph (a) states that the FWS shall develop, establish, and 
implement the management systems. Paragraphs (a) and (e) provide 
flexibility in the development of the management systems. Paragraph (b) 
requires the FHWA and the FWS to develop implementation plans for the 
management systems. To ensure the management systems are developed, 
implemented, and operated systematically, paragraph (c) requires the 
development of procedures that will include the following: 
Consideration of management system results in the planning process; 
system analysis; a description of each management system; operation and 
maintenance of management systems and databases; and data collection, 
processing, analysis, and updating. Paragraph (d) ensures that the 
database has a geographical reference system so that information can be 
geolocated. Paragraph (f) requires a periodical evaluation process of 
the effectiveness of the management systems, preferably as part of the 
transportation planning process. Paragraph (g) ensures that 
transportation investment decisions based on management system results 
would be used at the regional level.

Section 972.206 Funds for Establishment, Development, and 
Implementation of the Systems

    This section provides that the funds available for the Refuge Roads 
program can be used for development, establishment, and implementation 
of the management systems in accordance with legislative provisions for 
the funds.

Section 972.208 Federal Lands Pavement Management System (PMS)

    Paragraph (a) defines the applicability of the PMS. Paragraph (b) 
permits the use of the American Association of State Highway and 
Transportation Officials' (AASHTO) ``Pavement Management Guide ''\3\ as 
a guide for the development of the PMS. Paragraph (c) provides 
flexibility for the development of the PMS.
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    \3\ ``Pavement Management Guide,'' AASHTO, 2001, is available 
for inspection as prescribed at 49 CFR part 7. It may be purchased 
online at http://www.transportation.org/publications/bookstore.nsf 
or mail addressed to the American Association of State Highway and 
Transportation Officials (AASHTO), Publication Order Dept., P.O. Box 
96716, Washington, DC 20090-6716.
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    This section further sets forth processes and procedures that must 
be included in a PMS. They include requirements for a basic framework 
composed of data collection and maintenance, network level analysis, 
and reporting procedures.

Section 972.210 Federal Lands Bridge Management System (BMS)

    Paragraph (a) defines the applicability of the BMS. The section 
sets forth processes and procedures that must be included in a BMS. 
They consist of data collection and maintenance, analytical procedures, 
and reporting procedures.

Section 972.212 Federal Lands Safety Management System (SMS)

    Paragraph (a) defines the applicability of the SMS. Paragraph (b) 
permits the use of the FHWA publication entitled ``Safety Management 
Systems: Good Practices for Development and Implementation.''\4\
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    \4\ ``Safety Management Systems: Good Practices for Development 
and Implementation,'' FHWA and NHTSA, May 1996, may be obtained at 
the FHWA, Office of Safety, Room 3407, 400 Seventh St., SW., 
Washington, DC 20590, or electronically at http://safety.fhwa.dot.gov/media/documents.htm. It is available for 
inspection and copying as prescribed at 49 CFR part 7.
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    Because of the strong emphasis the TEA-21 has on safety, paragraph 
(c) requires the SMS to be used to ensure that safety is considered and 
implemented as appropriate in all phases of transportation planning, 
programming and project implementation. Paragraph (d) states that the 
level of complexity of a SMS depends on the nature of the facilities 
involved.
    Paragraph (e) section sets forth components that must be included 
in a SMS. They include data collection and

[[Page 1100]]

maintenance, identification and correction of potential safety 
problems, communications, public education, and reporting.
    To provide flexibility, paragraph (f) states that the extent of SMS 
requirements set forth in this proposed rule for low volume roads may 
be tailored to be consistent with the functional classification of the 
roads. However, each functional classification should include adequate 
requirements to ensure effective safety decision-making.

Section 972.214 Federal Lands Congestion Management System (CMS)

    This section defines congestion and specifies that the FWS shall 
consider the results of the CMS in selecting strategies to address 
congestion. In addition, it requires the FWS to consider strategies 
that reduce private automobile travel and improve existing 
transportation system efficiency. Paragraphs (b)(1), (2), and (3) 
address CMS coverage for portions of the FWS transportation systems 
inside and outside the boundaries of transportation management areas 
(TMAs).
    Paragraph (b)(4) further sets forth components to be included in a 
CMS. They include the following: Identification and documentation of 
measures for congestion; identification of the causes of congestion; 
development of evaluation processes; identification of benefits; 
determination of methods to monitor and evaluate performance of the 
overall transportation system after strategies are implemented; 
consideration of example strategies provided in the proposed rule; and 
provision of information supporting the implementation of actions.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination using the docket number appearing at the top of this 
document in the docket room at the above address. The FHWA will file 
comments received after the comment closing date in the docket and will 
consider late comments to the extent practicable. In addition to late 
comments, the FHWA will also continue to file in the docket relevant 
information becoming available after the comment closing date, and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period.

Executive Order 12866 (Regulatory Planning and Review) and U.S. DOT 
Regulatory Policies and Procedures

    The FHWA has determined preliminarily that the proposed rule would 
be a significant regulatory action within the meaning of Executive 
Order 12866, and under the regulatory policies and procedures of the 
U.S. Department of Transportation, because of the substantial public 
interest anticipated in the transportation facilities of the Refuges. 
The FHWA anticipates that the economic impact of any action taken in 
this rulemaking process will be minimal. The FHWA anticipates that the 
proposed changes will not adversely affect any sector of the economy in 
a material way. Though the proposed action here will impact the FWS, it 
will not likely interfere with any action taken or planned by the FWS 
or another agency, or materially alter the budgetary impact of any 
entitlement, grants, user fees, or loan programs.
    Based upon the information received in response to this proposed 
action, the FHWA intends to carefully consider the costs and benefits 
associated with this rulemaking. Accordingly, comments, information, 
and data are solicited on the economic impact of the proposal described 
in this document or any alternative proposal submitted.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this proposed action on 
small entities and has determined that the proposed action would not 
have a significant economic impact on a substantial number of small 
entities. Commenters are encouraged to evaluate any options addressed 
here with regard to the potential for impact.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose a mandate that requires further 
analysis under the Unfunded Mandates Reform Act of 1995 (Public Law 
104-4, March 22, 1995, 109 Stat. 48). This proposed rule will not 
result in the expenditure by State, local and Tribal Governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year (2 U.S.C. 1532). This rulemaking proposes to provide for the 
development and implementation of pavement, bridge, safety, and 
congestion management systems for transportation facilities serving the 
Refuge System. These roads are funded under the FLHP; therefore the 
proposed rule is not considered an unfunded mandate. Further, in 
compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will 
evaluate any regulatory action that might be proposed in subsequent 
stages of the proceeding to assess the effects on State, local, and 
Tribal Governments and the private sector.

Executive Order 13132 (Federalism)

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, dated 
August 4, 1999. The FHWA has determined that this proposed action would 
not have sufficient Federalism implications to warrant the preparation 
of a Federalism assessment. The FHWA has also determined that the 
proposed action would not preempt any State law or State regulation or 
affect the States' ability to discharge traditional State governmental 
functions. However, commenters are encouraged to consider these issues, 
as well as matters concerning any costs or burdens that might be 
imposed on the States as a result of actions considered here.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. The FHWA has determined that this 
proposed rule contains a requirement for data and information to be 
collected and maintained in the four management systems that are to be 
developed. In order to streamline the process, the FHWA intends to 
request that the OMB approve a single information collection clearance 
for all of the data in the four management systems at the time that the 
requirements in this proposal are made final. The FHWA is sponsoring 
this proposed clearance on behalf of the Fish and Wildlife Service.
    The FHWA estimates that a total of 3,700 burden hours would be 
imposed on non-Federal entities to provide the required information. 
Respondents to this information collection include State Transportation 
Departments, Metropolitan Planning Organizations

[[Page 1101]]

(MPOs), Tribal governments, regional transportation planning agencies, 
and county and local governments. The Fish and Wildlife Service would 
bear the burden of developing the management systems in a manner that 
would incorporate any existing data in the most efficient way and 
without additional burdens to the public. The estimates here only 
include burdens on the respondents to provide information that is not 
usually and customarily collected.
    Where a substantial level of effort may be required of non-Federal 
entities to provide management system information, the effort has been 
benchmarked to the number of miles of State or locally owned roads or 
the number of State or locally owned bridges within the agency's 
jurisdiction. This approach has been applied to the PMS, BMS and SMS. 
Since a substantial portion of the FWS system is State and locally 
owned roads, the burden on States, and county and local governments 
will be measurable at a level commensurate with the relatively modest 
extent of the public FWS system. The total annual burden estimate for 
these three systems is 1,300 hours. Burden estimates are 500 hours per 
year for the PMS, 300 hours per year for the BMS, and 500 hours per 
year for the SMS.
    For implementation of the CMS, the non-Federal burden, if 
applicable, would likely fall to the MPOs, and represents the need for 
the FLMA's to coordinate their management systems with the MPOs for 
that portion of their transportation system that is within the MPO 
area. For estimating purposes, approximately 60 MPOs nationwide, may be 
burdened by the proposed regulation. Forty hours of burden were 
assigned to each of the 60 MPO's, resulting in a total annual burden 
estimate of 2,400 hours attributable to the FWS CMS.
    The FHWA is required to submit this proposed collection of 
information to the OMB for review and approval and, accordingly, seeks 
public comments. Interested parties are invited to send comments 
regarding any aspect of these information collection requirements, 
including, but not limited to: (1) Whether the collection of 
information is necessary for the performance of the functions of the 
FHWA, including whether the information has practical utility; (2) the 
accuracy of the estimated burden; (3) ways to enhance the quality, 
utility, and clarity of the collected information; and (4) ways to 
minimize the collection burden without reducing the quality of the 
information collected.

National Environmental Policy Act

    The FHWA has analyzed this proposed action for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has 
determined that this proposed action would not have any effect on the 
quality of the environment. An environmental impact statement is, 
therefore, not required.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this proposed action under Executive Order 
13175, dated November 6, 2000, and believes that the proposal will not 
have substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal government, 
and will not preempt tribal law. The requirements set forth in the 
proposed rule do not directly affect one or more Indian tribes. 
Therefore, a tribal summary impact statement is not required.

Executive Order 12988 (Civil Justice Reform)

    This proposed action meets applicable standards in section 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this proposed action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This proposed rule is not economically significant and does not 
involve an environmental risk to health and safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13211 (Energy Effects)

    This proposed rule has been analyzed under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distributions, or Use. The FHWA has determined that it is not a 
significant energy action under that order because, although the 
proposed action is considered to be a significant regulatory action 
under Executive Order 12866, it is not likely to have a significant 
adverse effect on the supply, distribution or use of energy.

Regulation Identification Number

    A regulation identification number (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 contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects in 23 CFR Part 972

    Bridges, Grant programs--transportation, Highway safety, Highways 
and roads, Public lands, Transportation, Wildlife refuges.
    For reasons set forth in the preamble, the Federal Highway 
Administration proposes to amend chapter I of Title 23, Code of Federal 
Regulations, as set forth below.

    Issued on: December 20, 2002.
Mary E. Peters,
Federal Highway Administrator.

    1. Add a new part 972 to subchapter L to read as follows:

PART 972--FISH AND WILDLIFE SERVICE MANAGEMENT SYSTEMS

Subpart A--Definitions
Sec.
972.100 Purpose.
972.102 Applicability.
972.104 Definitions.
Subpart B--Fish and Wildlife Service Management Systems
Sec.
972.200 Purpose.
972.202 Applicability.
972.204 Management systems requirements.
972.206 Funds for establishment, development and implementation of 
the systems.
972.208 Federal lands Pavement Management System (PMS).
972.210 Federal lands Bridge Management System (BMS).
972.212 Federal lands Safety Management System (SMS).
972.214 Federal lands Congestion Management System (CMS).

    Authority: 23 U.S.C. 204, 315; 42 U.S.C. 7410 et seq.; 49 CFR 
1.48.

Subpart A--Definitions


Sec.  972.100  Purpose.

    The purpose of this subpart is to provide definitions for terms 
used in this part.


Sec.  972.102  Applicability.

    The definitions in this subpart are applicable to this part, except 
as otherwise provided.

[[Page 1102]]

Sec.  972.104  Definitions.

    Alternative transportation systems means modes of transportation 
other than private vehicles, including methods to improve system 
performance such as transportation demand management, congestion 
management, and intelligent transportation systems. These mechanisms 
help reduce the use of private vehicles and thus improve overall 
efficiency of transportation systems and facilities.
    Elements means the components of a bridge important from a 
structural, user, or cost standpoint. Examples are decks, joints, 
bearings, girders, abutments, and piers.
    Federal lands bridge management system (BMS) means a systematic 
process used by the Forest Service (FS), the Fish and Wildlife Service 
(FWS) and the National Park Service (NPS) for analyzing bridge data to 
make forecasts and recommendations, and provides the means by which 
bridge maintenance, rehabilitation, and replacement programs and 
policies may be effectively considered.
    Federal lands congestion management system (CMS) means a systematic 
process used by the FS, FWS and NPS for managing congestion that 
provides information on transportation system performance and 
alternative strategies for alleviating congestion and enhancing the 
mobility of persons and goods to levels that meet Federal, State and 
local needs.
    Federal Lands Highway program (FLHP) means a federally funded 
program established in 23 U.S.C. 204 to address transportation needs of 
Federal and Indian lands.
    Federal lands pavement management system (PMS) means a systematic 
process used by the FS, FWS and NPS that provides information for use 
in implementing cost-effective pavement reconstruction, rehabilitation, 
and preventive maintenance programs and policies and that results in 
pavement designed to accommodate current and forecasted traffic in a 
safe, durable, and cost-effective manner.
    Federal lands safety management system (SMS) means a systematic 
process used by the FS, FWS and NPS with the goal of reducing the 
number and severity of traffic accidents by ensuring that all 
opportunities to improve roadway safety are identified, considered, 
implemented and evaluated as appropriate, during all phases of highway 
planning, design, construction, operation and maintenance, by providing 
information for selecting and implementing effective highway safety 
strategies and projects.
    Fish and Wildlife Service transportation plan means the official 
Fish and Wildlife Service-wide multimodal transportation plan that is 
developed through the Fish and Wildlife Service transportation planning 
process pursuant to 23 U.S.C. 204.
    Highway safety means the reduction of traffic accidents, and 
deaths, injuries, and property damage resulting therefrom, on public 
roads.
    Intelligent transportation system (ITS) means electronics, 
communications, or information processing used singly or in combination 
to improve the efficiency and safety of a surface transportation 
system.
    Life-cycle cost analysis means an evaluation of costs incurred over 
the life of a project allowing a comparative analysis between or among 
various alternatives. Life-cycle cost analysis promotes consideration 
of total cost, to include maintenance and operation expenditures. 
Comprehensive life-cycle costs analysis includes all economic variables 
essential to the evaluation: User costs such as delay and safety costs 
associated with maintenance and rehabilitation projects, agency capital 
cost, and life-cycle maintenance costs.
    Metropolitan planning area means the geographic area in which the 
metropolitan transportation planning process required by 23 U.S.C. 134 
and 49 U.S.C. 5303-5306 must be carried out.
    Metropolitan planning organization (MPO) means the forum for 
cooperative transportation decisionmaking for the metropolitan planning 
area pursuant to 23 U.S.C. 134 and 49 U.S.C. 5303.
    National Wildlife Refuge System (Refuge System) means all the lands 
and waters reported by the FWS as being part of the National Wildlife 
Refuge System in the annual ``Report of Lands Under Control of the U.S. 
FWS.''\1\ Included in the Refuge System are those lands that are 
generally known as refuges, waterfowl production areas, wetland 
management districts, and coordination areas.
---------------------------------------------------------------------------

    \1\ ``Report of Lands under Control of the U.S. FWS,'' U.S. FWS, 
(published annually on September 30). A free copy is available from 
the U.S. FWS, Division of Realty, 4401 North Fairfax Drive, Suite 
622, Arlington, VA 22203; telephone: (703) 358-1713.
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    Operations means those activities associated with managing, 
controlling, and regulating highway traffic.
    Refuge road means a public road that provides access to or within a 
unit of the National Wildlife Refuge System and for which title and 
maintenance responsibilities is vested in the United States Government.
    Refuge Road transportation improvement program (RRTIP) means a 
staged, multiyear, multimodal program of transportation projects for 
the Refuge Road Program consistent with the Fish and Wildlife Service 
transportation plan and planning processes pursuant to 23 U.S.C. 204.
    Refuge Roads program means the funds allocated each fiscal year, as 
described in 23 U.S.C. 202(e).
    Secretary means the Secretary of Transportation.
    State means any one of the fifty States, the District of Columbia, 
or Puerto Rico.
    Transportation facilities means roads, streets, bridges, parking 
areas, transit vehicles, and other related transportation 
infrastructure.
    Transportation Management Area (TMA) means an urbanized area with a 
population over 200,000 (as determined by the latest decennial census) 
or other area when TMA designation is requested by the Governor and the 
MPO (or affected local officials), and officially designated by the 
Administrators of the FHWA and the Federal Transit Administration 
(FTA). The TMA designation applies to the entire metropolitan planning 
area(s).

Subpart B--Fish and Wildlife Service Management Systems


Sec.  972.200  Purpose.

    The purpose of this subpart is to implement 23 U.S.C. 204 which 
requires the Secretary and the Secretary of each appropriate Federal 
land management agency to develop, to the extent appropriate, safety, 
bridge, pavement, and congestion management systems for roads funded 
under the FLHP.


Sec.  972.202  Applicability.

    The provisions in this subpart are applicable to the Fish and 
Wildlife Service (FWS) which is responsible for satisfying these 
requirements for management systems pursuant to 23 U.S.C. 204.


Sec.  972.204  Management systems requirements.

    (a) The FWS shall develop, establish and implement the management 
systems as described in this subpart. The FWS may tailor the management 
systems to meet the FWS goals, policies, and needs.
    (b) The FWS and the FHWA shall develop an implementation plan for 
each of the management systems. These plans will include, but are not 
limited to, the following: Overall goals and policies concerning the 
management systems, each agency's responsibilities for developing and 
implementing the

[[Page 1103]]

management systems, implementation schedule, data sources, and cost 
estimate. The FHWA will provide the FWS ongoing technical engineering 
support for the development, implementation, and maintenance of the 
management systems.
    (c) The FWS shall develop and implement procedures for the 
development, establishment, implementation and operation of management 
systems. The procedures shall include:
    (1) A process for ensuring the results of any of the management 
systems are considered in the development of FWS transportation plans 
and transportation improvement programs and in making project selection 
decisions under 23 U.S.C. 204;
    (2) A process for the analyses and coordination of all management 
system outputs to systematically operate, maintain, and upgrade 
existing transportation assets cost-effectively;
    (3) A description of each management system;
    (4) A process to operate and maintain the management systems and 
their associated databases; and
    (5) A process for data collection, processing, analysis and 
updating for each management system.
    (d) All management systems will use databases with a geographical 
reference system that can be used to geolocate all database 
information.
    (e) Existing data sources may be used by the FWS to the maximum 
extent possible to meet the management system requirements.
    (f) The FWS shall develop an appropriate means to evaluate the 
effectiveness of the management systems in enhancing transportation 
decision-making and improving the overall efficiency of the affected 
federally owned transportation systems and facilities. This evaluation 
is to be conducted periodically, preferably as part of the 
comprehensive conservation planning process.
    (g) The management systems shall be operated so investment 
decisions based on management system outputs can be accomplished at the 
regional level.


Sec.  972.206  Funds for establishment, development, and implementation 
of the systems.

    The FLHP Refuge Roads program funds may be used for development, 
establishment, and implementation of the management systems. These 
funds are to be administered in accordance with the procedures and 
requirements applicable to the funds.


Sec.  972.208  Federal lands Pavement Management System (PMS).

    In addition to the requirements provided in Sec.  972.204, the PMS 
must meet the following requirements:
    (a) The FWS shall, at a minimum, have PMS coverage of all paved 
refuge roads and other associated facilities, as appropriate, funded 
under the FLHP.
    (b) The PMS may be based on the concepts described in the AASHTO's 
``Pavement Management Guide.'' \2\
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    \2\ ``Pavement Management Guide,'' AASHTO, 2001, is available 
for inspection as prescribed at 49 CFR part 7. It may be purchased 
online at http://www.transportation.org/publications/bookstore.nsf 
or mail addressed to the American Association of State Highway and 
Transportation Officials (AASHTO), Publication Order Dept., P.O. Box 
96716, Washington, DC 20090-6716.
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    (c) The PMS may be utilized at various levels of technical 
complexity depending on the nature of the pavement network. These 
different levels may depend on mileages, functional classes, volumes, 
loadings, usage, surface type, or other criteria the FWS deems 
appropriate.
    (d) The PMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using the following components, at a minimum, as a 
basic framework for a PMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the PMS. The minimum PMS database shall include:
    (i) An inventory of the physical pavement features including the 
number of lanes, length, width, surface type, functional 
classification, and shoulder information;
    (ii) A history of project dates and types of construction, 
reconstruction, rehabilitation, and preventive maintenance. If some of 
the inventory or historic data are difficult to establish, it may be 
collected when preservation or reconstruction work is performed;
    (iii) A condition survey that includes ride, distress, rutting, and 
surface friction (as appropriate);
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) Data for estimating the costs of actions.
    (2) A system for applying network level analytical procedures that 
are capable of analyzing data for all FWS managed transportation 
facilities in the inventory or any subset. The minimum analyses shall 
include:
    (i) A pavement condition analysis that includes ride, distress, 
rutting, and surface friction (as appropriate);
    (ii) A pavement performance analysis that includes present and 
predicted performance and an estimate of the remaining service life 
(performance and remaining service life to be developed with time); and
    (iii) An investment analysis that:
    (A) Identifies alternative strategies to improve pavement 
conditions;
    (B) Estimates costs of any pavement improvement strategy;
    (C) Determines maintenance, repair, and rehabilitation strategies 
for pavements using life-cycle cost analysis or a comparable procedure;
    (D) Provides short and long term budget forecasting; and
    (E) Recommends optimal allocation of limited funds by developing a 
prioritized list of candidate projects over a predefined planning 
horizon (both short and long term).
    (e) For any FWS managed transportation facilities in the inventory 
or subset thereof, PMS reporting requirements shall include, but are 
not limited to, percentage of roads in good, fair, and poor condition.


Sec.  972.210  Federal Lands Bridge Management System (BMS).

    In addition to the requirements provided in Sec.  972.204, the BMS 
must meet the following requirements:
    (a) The FWS shall have a BMS for bridges which are under the FWS 
jurisdiction, funded under the FLHP, and required to be inventoried and 
inspected under 23 CFR part 650, subpart C, National Bridge Inspection 
Standards (NBIS).
    (b) The BMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using the following components, as a minimum, as a 
basic framework for a BMS:
    (1) A database and an ongoing program for the collection and 
maintenance of the inventory, inspection, cost, and supplemental data 
needed to support the BMS. The minimum BMS database shall include:
    (i) The inventory data required by the NBIS (23 CFR 650.311(a));
    (ii) Data characterizing the severity and extent of deterioration 
of bridge elements;
    (iii) Data for estimating the cost of improvement actions;
    (iv) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (v) A history of conditions and actions taken on each bridge, 
excluding minor or incidental maintenance.
    (2) Analytical procedures that are capable of analyzing data for 
all bridges in the inventory or any subset. These procedures include, 
as appropriate, such factors as bridge condition, recommended repairs/
replacement and

[[Page 1104]]

estimated costs, prediction of the estimated remaining life of the 
bridge, development of a prioritized list of candidate projects over a 
specified planning horizon, and budget forecasting.
    (c) For any bridge in the inventory or subset thereof, BMS 
reporting requirements shall include, but are not limited to, 
percentage of non-deficient bridges.


Sec.  972.212  Federal lands Safety Management System (SMS).

    In addition to the requirements provided in Sec.  972.204, the SMS 
must meet the following requirements:
    (a) The FWS shall have an SMS for all transportation facilities 
serving the Refuge System, as appropriate, funded under the FLHP.
    (b) The FWS SMS may be based on the guidance in ``Safety Management 
Systems: Good Practices for Development and Implementation,'' \3\
---------------------------------------------------------------------------

    \3\ ``Safety Management Systems: Good Practices for Development 
and Implementation,'' FHWA and NHTSA, May 1996, may be obtained at 
the FHWA, Office of Safety, Room 3407, 400 Seventh St., SW., 
Washington, DC 20590, or electronically at http://safety.thwa.dot.gov/media/documents.htm. It is available for 
inspection and copying as prescribed as 49 CFR part 7.
---------------------------------------------------------------------------

    (c) The FWS shall utilize the SMS to ensure that safety is 
considered and implemented as appropriate in all phases of 
transportation system planning, design, construction, maintenance, and 
operations.
    (d) The SMS may be utilized at various levels of complexity 
depending on the nature of the facility involved.
    (e) The SMS shall be designed to fit the FWS goals, policies, 
criteria, and needs using, as a minimum, the following components as a 
basic framework for a SMS:
    (1) An ongoing program for the collection, maintenance and 
reporting of a database that includes:
    (i) Accident records with sufficient detail for analysis such as 
accident type using standard reporting descriptions (e.g. right-angle, 
rear-end, head-on, pedestrian-related, etc.), location, description of 
event, severity, weather and cause;
    (ii) An inventory of safety appurtenances such as signs, 
delineators, and guardrails (including terminals);
    (iii) Traffic information including volumes and vehicle 
classification (as appropriate); and
    (iv) Accident rates by customary criteria such as location, roadway 
classification, and vehicle miles of travel.
    (2) Development, establishment and implementation of procedures 
for:
    (i) Routinely maintaining and upgrading safety appurtenances 
including highway-rail crossing warning devices, signs, highway 
elements, and operational features where appropriate; and
    (ii) Identifying and investigating hazardous or potentially 
hazardous transportation system safety problems, roadway locations and 
features, then establishing countermeasures and setting priorities to 
correct the identified hazards and potential hazards;
    (3) A process for communication, coordination, and cooperation 
among the organizations responsible for the roadway, human, and vehicle 
safety elements; and
    (4) Development and implementation of public information and 
education activities on safety needs, programs, and countermeasures 
which affect safety on the FWS transportation systems.
    (f) While the SMS applies to appropriate transportation facilities 
serving the Refuge System funded under the FLHP, the extent of system 
requirements (e.g., data collection, analyses, and standards) for low 
volume roads may be tailored to be consistent with the functional 
classification of the roads. However, adequate detail should be 
included for each functional classification to provide for effective 
inclusion of safety decisions in the administration of transportation 
by the FWS.


Sec.  972.214  Federal lands Congestion Management System (CMS).

    (a) For purposes of this section, congestion means the level at 
which transportation system performance is no longer acceptable due to 
traffic interference. For those FWS transportation systems that require 
a CMS, in both metropolitan and non-metropolitan areas, consideration 
shall be given to strategies that reduce private automobile travel and 
improve existing transportation system efficiency. Approaches may 
include the use of alternate mode studies and implementation plans as 
components of the CMS. The FWS shall consider the results of the CMS 
when selecting the implementation of strategies that provide the most 
efficient and effective use of existing and future transportation 
facilities, and alleviate congestion.
    (b) In addition to the requirements provided in Sec.  972.204, the 
CMS must meet the following requirements:
    (1) For portions of the FWS transportation system within TMAs, the 
FWS transportation planning process shall include a CMS that meets the 
requirements of this section. By agreement between the TMA and the FWS, 
the TMA's CMS coverage may include the transportation facilities 
serving the Refuge System, as appropriate. Through this agreement(s), 
the FWS may meet the requirements of this section.
    (2) If a TMA's CMS does not provide coverage of the portions of the 
FWS transportation facilities within the boundaries of the TMA, the FWS 
shall develop a separate CMS to cover those facilities within the 
boundaries of the TMA.
    (3) For portions of the FWS transportation system outside the 
boundaries of TMA's, the FWS shall:
    (i) Develop criteria to determine when a CMS is to be implemented 
for a specific transportation system; and
    (ii) Have CMS coverage for all transportation facilities serving 
the Refuge System, as appropriate, funded through the FLHP that meet 
minimum CMS needs criteria.
    (4) A CMS will:
    (i) Identify and document measures for congestion (e.g., level of 
service);
    (ii) Identify the causes of congestion;
    (iii) Include processes for evaluating the cost and effectiveness 
of alternative strategies to manage congestion;
    (iv) Identify the anticipated benefits of appropriate alternative 
traditional and nontraditional congestion management strategies;
    (v) Determine methods to monitor and evaluate the performance of 
the multi-modal transportation system;
    (vi) Appropriately consider the following example categories of 
strategies, or combinations of strategies for each area:
    (A) Transportation demand management measures;
    (B) Traffic operational improvements;
    (C) Public transportation improvements;
    (D) ITS technologies;
    (E) Additional system capacity; and
    (vii) Provide information supporting the implementation of actions.

[FR Doc. 03-104 Filed 1-7-03; 8:45 am]
BILLING CODE 4910-22-P