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, 24920-24936 [2018-11652]

Agencies

• Federal Highway Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 83, Number 105 (Thursday, May 31, 2018)]
[Rules and Regulations]
[Pages 24920-24936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11652]


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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: Final rule.

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SUMMARY: This final rule repeals the performance management measure 
that assessed the percent change in tailpipe carbon dioxide 
(CO2) emissions, from the reference year 2017, on the 
National Highway System (NHS) (also referred to as the Greenhouse Gas 
(GHG) measure). The GHG measure was one of several performance measures 
that FHWA required State departments of transportation (State DOTs) and 
metropolitan planning organizations (MPOs) to use to assess performance 
in a variety of areas. After considering the comments received in 
response to the notice of proposed rulemaking (NPRM) published on 
October 5, 2017, FHWA has decided to repeal the GHG measure.

DATES: This final rule is effective July 2, 2018.

FOR FURTHER INFORMATION CONTACT: For technical information: Michael 
Culp, Office of Planning, Environment and Realty, (202) 366-9229; for 
legal information: Christopher Richardson, Office of Chief Counsel, 
(202) 366-1383, Federal Highway Administration, 1200 New Jersey Avenue 
SE, Washington, DC 20590. Office hours are from 8:00 a.m. to 4:30 p.m. 
ET, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing

    The notice of proposed rulemaking (NPRM) was published at 82 FR 
46427 on October 5, 2017.\1\ A copy of the NPRM, all comments received, 
and all background material may be viewed online at https://www.regulations.gov. Electronic retrieval help and guidelines are 
available on the website, which 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 website at https://www.ofr.gov and the Government Publishing Office's website at https://www.gpo.gov.
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    \1\ 82 FR 46427 Pg. 46427-46433: https://www.federalregister.gov/documents/2017/10/05/2017-21442/national-performance-management-measures-assessing-performance-of-the-national-highway-system.
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Table of Contents for Supplementary Information

I. Executive Summary
    A. Purpose of the Deregulatory Action
    B. Summary of the Deregulatory Action in Question
    C. Costs and Benefits
II. Acronyms and Abbreviations
III. Regulatory History
IV. Decision to Repeal the GHG Performance Measure
    A. Summary of Decision
    B. Reasons for the Repeal of the GHG Measure
    C. Impact of Repeal on Effectiveness of Performance Management 
Program
V. Response to Comments Received on the NPRM
    A. Costs and Benefits of the GHG Measure
    B. Utility and Burden of the GHG Measure
    C. Duplication of Efforts at Federal, State or Local Levels
    D. Appropriateness of the Measure Methodology
    E. Alternatives to Current GHG Performance Measure
    F. Other Comments
VI. Rulemaking Analyses and Notices
    A. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs), Executive Order 12866 (Regulatory Planning and 
Review), Executive Order 13563 (Improving Regulation and Regulatory 
Review), 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. Regulation Identifier Number

I. Executive Summary

A. Purpose of the Deregulatory Action

    The purpose of this deregulatory action is to repeal the 
requirement that State departments of transportation (State DOTs) and 
metropolitan planning organizations (MPOs) assess the performance of 
the National Highway System (NHS) under the National Highway 
Performance Program (NHPP) by measuring the percent change in tailpipe 
carbon dioxide (CO2) emissions on the NHS from calendar year 
2017 (also referred to as the Greenhouse Gas (GHG) measure). This 
measure was calculated using data on fuel use and vehicle miles 
traveled (VMT). After further consideration and review of the comments 
received, as well as relevant statutory authorities, we have decided to 
repeal this measure. This repeal will alleviate a burden on State DOTs 
and MPOs that imposed costs with no predictable level of benefits. This 
final rule does not prohibit State DOTs and MPOs from choosing 
voluntarily to measure and assess CO2 emissions.

B. Summary of the Deregulatory Action in Question

    This final rule repeals the GHG measure. By repealing this measure, 
FHWA will no longer require State DOTs and MPOs to undertake 
administrative activities to establish targets, calculate their 
progress toward their selected targets, report to FHWA, and determine a 
plan of action to make progress toward their selected targets if

[[Page 24921]]

they failed to make significant progress during a performance 
period.\2\
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    \2\ See 23 CFR 490.105, 490.107, 490.109.
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C. Costs and Benefits

    This final rule is a deregulatory action estimated to result in 
cost savings of $10.89 million, which rounds to $10.9 million 
discounted at 7 percent over 9 years. This equates to annualized cost 
savings of $1.67 million at a 7 percent discount rate, or $1.64 million 
at a 3 percent discount rate. Table 1 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 1--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 ($ millions/     None........................  None.......................  None.......................           NA            7           NA  Not Quantified.
 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 decision-making on project, program, and policy choices.                             Final RIA.
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                                                                                              Costs
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Annualized Monetized ($/year).......  ($1,671,758)................  ...........................  ...........................         2014            7            9  Final RIA.
                                      ($1,644,687)................                                                                   2014            3            9
Annualized Quantified...............  None........................  None.......................  None.......................         2014            7            9  Final 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           ($1,671,758)................  ...........................  ...........................         2014            7            9  Final RIA.
 Government.                          ($1,644,687)................                                                                   2014            3            9
                                     ----------------------------------------------------------------------------------------
Small Business......................   Not expected to have a significant impact on a substantial number of small entities.            NA           NA           NA  Final RIA.
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II. Acronyms and Abbreviations

------------------------------------------------------------------------
          Acronym or abbreviation                       Term
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AASHTO....................................  American Association of
                                             State Highway and
                                             Transportation Officials.
AGC.......................................  Associated General
                                             Contractors of America.
AMPO......................................  Association of Metropolitan
                                             Planning Organizations.
APA.......................................  Administrative Procedure
                                             Act.
Caltrans..................................  California Department of
                                             Transportation.
CARB......................................  California Air Resources
                                             Board.
CFR.......................................  Code of Federal Regulations.
CMAP......................................  Chicago Metropolitan Agency
                                             for Planning.
CMAQ......................................  Congestion Mitigation and
                                             Air Quality Improvement
                                             Program.
CO2.......................................  Carbon dioxide.
DOT.......................................  U.S. Department of
                                             Transportation.
EO........................................  Executive Order.
EIA.......................................  Energy Information Agency,
                                             U.S. Department of Energy.
EIS.......................................  Environmental Impact
                                             Statement.
FAHP......................................  Federal-aid Highway Program.
FAST Act..................................  Fixing America's Surface
                                             Transportation Act.
FHWA......................................  Federal Highway
                                             Administration.
FR........................................  Federal Register.
GHG.......................................  Greenhouse gas.
HPMS......................................  Highway Performance
                                             Monitoring System.
MAP-21....................................  Moving Ahead for Progress in
                                             the 21st Century Act.
MOVES.....................................  Motor Vehicle Emission
                                             Simulator.
MPO.......................................  Metropolitan Planning
                                             Organizations.
NEPA......................................  National Environmental
                                             Policy Act.
NHPA......................................  National Historic
                                             Preservation Act.
NHPP......................................  National Highway Performance
                                             Program.
NHS.......................................  National Highway System.
NPRM......................................  Notice of proposed
                                             rulemaking.

[[Page 24922]]

 
NRDC......................................  Natural Resources Defense
                                             Council.
OMB.......................................  Office of Management and
                                             Budget.
PM3.......................................  ``Assessing Performance of
                                             the National Highway
                                             System, Freight Movement on
                                             the Interstate System, and
                                             Congestion Mitigation and
                                             Air Quality Improvement
                                             Program'' The third
                                             performance measure rule.
PRA.......................................  Paperwork Reduction Act of
                                             1995.
RIA.......................................  Regulatory Impact Analysis.
RIN.......................................  Regulatory Identification
                                             Number.
State DOTs................................  State departments of
                                             transportation.
U.S.C.....................................  United States Code.
VMT.......................................  Vehicle miles traveled.
------------------------------------------------------------------------

III. Regulatory History

    The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
(Pub. L. 112-141) transforms the Federal-aid Highway Program (FAHP) by 
establishing new requirements for performance management to ensure the 
most efficient investment of Federal transportation funds. The Fixing 
America's Surface Transportation (FAST) Act (Pub. L. 114-94) continued 
these requirements. Performance management increases the accountability 
and transparency of the FAHP and provides a framework to support 
improved investment decisionmaking through a focus on performance 
outcomes for key national transportation goals.
    As part of this mandate, FHWA issued a set of three related 
national performance management measure rules for State DOTs and MPOs 
to use to assess performance. In these rules, FHWA established 
performance measures in 12 areas generalized as follows: (1) Serious 
injuries per 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 
National Highway System (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.
    The third performance management measures NPRM (PM3 NPRM) was 
published on April 22, 2016 (81 FR 23806).\3\ The PM3 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. In the preamble to the PM3 
NPRM, FHWA sought public comment on whether and how to establish a 
CO2 emissions measure in the PM3 Final Rule.
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    \3\ 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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    The FHWA published the third performance measure final rule (PM3 
Final Rule) on January 18, 2017, at 82 FR 5971.\4\ As finalized, the 
rule measured total annual tons of CO2 emissions from all 
on-road mobile sources. For a discussion of the comments received, 
FHWA's response to those comments, and FHWA's rationale for adopting 
the GHG measure, please see the PM3 Final Rule.
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    \4\ https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.
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    On October 5, 2017, FHWA published an NPRM proposing to repeal the 
GHG measure (82 FR 46427),\5\ while seeking additional public comment 
on whether to retain or revise the GHG measure established in the PM3 
Final Rule. The rulemaking sought additional information that may not 
have been available during the development of the PM3 Final Rule. The 
NPRM was published with a 30-day comment period set to close on 
November 6, 2017. The comment period was extended to November 15, 
2017,\6\ in response to requests submitted to the docket.
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    \5\ 82 FR 46427, October 5, 2017 https://www.federalregister.gov/documents/2017/10/05/2017-21442/national-performance-management-measures-assessing-performance-of-the-national-highway-system.
    \6\ 82 FR 51786, November 8, 2017 https://www.federalregister.gov/documents/2017/11/08/2017-24345/national-performance-management-measures-assessing-performance-of-the-national-highway-system.
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IV. Decision To Repeal the GHG Performance Measure

A. Summary of Decision

    The FHWA initiated this rulemaking after reviewing existing and 
pending regulations pursuant to Executive Order 13771 and 13777. On 
January 30, 2017, the President issued Executive Order 13771, titled, 
``Reducing Regulation and Controlling Regulatory Costs,'' which 
requires Federal agencies to take proactive measures to reduce the 
costs associated with complying with Federal regulations. In addition, 
on February 24, 2017, the President issued Executive Order 13777, 
titled, ``Enforcing the Regulatory Reform Agenda,'' which requires 
Federal agencies to designate a Regulatory Reform Officer and a 
Regulatory Reform Task Force to carry out the initiatives described in 
that Executive Order.
    The objective of our review was 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 PM3 Final Rule as being potentially duplicative of 
existing efforts in some States, and as potentially imposing 
unnecessary burdens on State DOTs and MPOs that were not contemplated 
by Congress. In addition, when the GHG measure was adopted, there were 
numerous comments regarding FHWA's legal authority to adopt the 
measure. Due to those concerns and because the performance management 
statute (23 U.S.C. 150) does not require a GHG measure, FHWA decided to 
reconsider its legal interpretation of the statute under which the GHG 
measure was adopted. All of these concerns contributed to the decision 
to publish the NPRM proposing to repeal the GHG measure.\7\
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    \7\ 82 FR 46427, October 5, 2017 https://www.federalregister.gov/documents/2017/10/05/2017-21442/national-performance-management-measures-assessing-performance-of-the-national-highway-system.
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    The FHWA's decision to repeal is based on the combined effects of 
three primary factors. These are: (1) Reconsideration of the legal 
authority under which the GHG measure was promulgated; (2) the cost of 
the GHG measure when considered in relation to the lack of demonstrated 
benefits; and (3) the potential duplication between information 
produced by the GHG measure and information produced by other 
initiatives related to measuring CO2 emissions.

[[Page 24923]]

    FHWA adopted the GHG measure as a matter of discretion in 
interpreting 23 U.S.C. 150(c), as the statute does not explicitly 
address CO2 emissions or require FHWA to include a GHG 
measure among the national performance measures. Repeal of the measure, 
for the reasons described in this final rule, is also a matter within 
FHWA's discretion, and repeal does not conflict with the statute. 
Further, repeal of the FHWA GHG measure does not preclude State DOTs 
and MPOs from tracking CO2 levels related to their own 
transportation programs, or from independently establishing measures 
and targets outside the national performance management program.
    The FHWA also considered alternatives to the repeal of the GHG 
measure. This consideration included whether FHWA should retain the 
measure as adopted in the PM3 Final Rule, or adopt a modified version 
of the GHG measure within the framework of the national performance 
management program. The FHWA did not identify an alternative that would 
address its concerns with the GHG measure. For more information about 
the alternatives considered, including comments received on this topic 
and FHWA's responses, please see Section V.E.

B. Reasons for the Repeal of the GHG Measure

    As noted above, in addition to the comments received, FHWA's 
decision to repeal the GHG measure is based on three primary factors.
1. Reconsideration of Legal Authority To Adopt GHG Measure
    When FHWA adopted the GHG measure in January 2017, we noted that we 
had received comments from supporters and opponents addressing FHWA's 
legal authority to adopt such a measure.\8\ In response to the NPRM 
issued for this rule, we received an equally divided set of comments 
regarding our legal authority to adopt the GHG measure. Questions about 
FHWA's legal authority arose from the express provisions of 23 U.S.C. 
150.
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    \8\ See 82 FR 5993 (Jan. 18, 2017).
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    In the PM3 Final Rule, FHWA concluded that it had the discretion to 
interpret the term ``performance'' as it relates to the Interstate and 
non-Interstate NHS, pursuant to the Secretary's authority set forth in 
23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V). FHWA's prior interpretation of the 
term ``performance'' included ``environmental performance'' and, 
consequently, FHWA determined that the adoption of the GHG measure was 
thus not outside the scope of section 150.\9\ Upon reconsideration, as 
explained below, we have determined that although the statute confers 
upon FHWA the discretion to determine the proper interpretation of the 
statute, FHWA's prior interpretation was based on a strained reading of 
the statutory language in section 150, and one that did not fully 
consider the limitations imposed by the statute itself and by other 
relevant considerations.
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    \9\ 82 FR 5994-95.
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    As outlined in the PM3 Final Rule, FHWA supported its discretion to 
broadly interpret the term ``performance'' with four arguments.\10\ 
First, FHWA relied on other provisions in Title 23 that make the 
environment an integral part of the FAHP, such as the national goal of 
environmental sustainability in 23 U.S.C. 150(b)(6), to demonstrate 
support for its interpretation. Second, FHWA asserted that its 
interpretation of ``performance'' was supported by numerous other FHWA 
actions, including various reports and guidance related to 
CO2 emissions, that treat the environment, including global 
sustainability and global climate change, as part of a State's highway 
system performance. Third, FHWA noted that section 150(c)(3) mandated 
the measures for the purpose of carrying out 23 U.S.C. 119, which 
establishes the National Highway Performance Program. The purposes of 
the NHPP, as set forth in 23 U.S.C. 119, included providing support for 
the condition and performance of the NHS. Specifically, section 119(e) 
calls for a performance-driven asset management plan that would support 
progress toward achievement of the national goals identified in section 
150(b), which include environmental sustainability. Finally, FHWA 
identified other FHWA statutory provisions found in Title 23 as 
potentially supporting its authority to address CO2 
emissions through the PM3 rulemaking. FHWA argued that because these 
provisions identified interrelationships among the environment, energy 
conservation, infrastructure performance, and performance-based 
decisionmaking, when read together, they provided a basis for FHWA to 
conclude that assessing infrastructure performance under 23 U.S.C. 
150(c)(3) may properly encompass environmental performance and, by 
extension, assessment of CO2 emissions.\11\
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    \10\ 82 FR 5993-96.
    \11\ Id.
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    What is notable about these four arguments, however, is that none 
of them points to any statutory provision that specifically directs or 
requires FHWA to adopt a GHG measure. Instead they encourage State DOTs 
and MPOs to consider a variety of ways to incorporate environmental 
considerations under their existing authority. Further, even though 
FHWA has taken other actions, such as issuing reports and guidance 
regarding GHG emissions and climate change, those actions were not 
taken to fulfill the statutory mandate of section 150, and therefore, 
do not lead to the conclusion that FHWA is required to adopt a GHG 
measure. Since those actions were taken to fulfill other statutory 
obligations and policy goals, they do not lead to the conclusion that 
FHWA must adopt a comprehensive performance requirement, such as the 
GHG measure.
    It is true that section 150 establishes seven national goals for 
the Federal-aid Highway program (FAHP), including ``environmental 
sustainability.'' \12\ However, subsection 150(c), in directing the 
Secretary to establish performance measures, imposes a specific 
limitation: the Secretary ``shall . . . limit the performance measures 
only to those described in [subsection c].'' \13\ Subsection (c) 
specifically directs the Secretary to establish measures regarding the 
pavement and bridge conditions of the National Highway System (NHS), 
the performance of the Interstate System and the National Highway 
System (excluding the Interstate System), the Highway Safety 
Improvement Program, the Congestion Mitigation and Air Quality Program 
(CMAQ), and national freight movement.\14\ Though environmental 
sustainability is one of the enumerated national goals in section 150, 
it is not one of the categories of performance measures specifically 
mentioned in subsection (c).
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    \12\ 23 U.S.C. 150(b)(6).
    \13\ Section 150(c)(2)(C).
    \14\ Section 150(c)(3)-(6).
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    Furthermore, in exercising its discretion previously, FHWA failed 
to fully consider the provisions in the National Highway Performance 
Program (NHPP) statute, 23 U.S.C. 119, when it originally decided to 
rely on the section 150(b) national goal of environmental 
sustainability to establish the GHG measure. The FHWA did not evaluate 
whether the national goals language in section 119(d)(1)(A) imposed 
limitations on how FHWA would meet the national goals enumerated in 
section 150 when establishing NHPP performance measures under section 
150(c)(3). Section 119(d)(1)(A) defines eligibility criteria for 
projects funded under NHPP. While the provision references

[[Page 24924]]

achievement of national performance goals, the statute also delineates 
which national performance goals are relevant to the NHPP: ``. . . 
national performance goals for improving infrastructure condition, 
safety, congestion reduction, system reliability, or freight movement 
on the [NHS].'' While these goals are consistent with an interpretation 
of ``performance'' that focuses on the physical condition of the system 
and the efficiency of transportation operations across the system, they 
do not support FHWA's prior, broader interpretation of ``performance'' 
under section 150(c)(3), which encompassed environmental performance. 
FHWA, in exercising its discretion to interpret the statute, now 
concludes that a narrower interpretation of the term ``performance'' is 
the better view of the statutory scheme and is more consistent with the 
text, structure, and purpose of the statute.
    The structure of section 150 itself supports a narrower 
construction of the section 150 performance measures authorization than 
previously adopted by FHWA. Congress specifically directed the 
Secretary of Transportation to ``limit performance measures only to 
those described in [section 150(c)]'' in establishing the performance 
measures. One of those authorized performance measures, section 
150(c)(5), directs the Secretary to establish measures for States to 
use in assessing on-road mobile source emissions. After 
reconsideration, FHWA believes that because Congress specifically 
designated a part of section 150(c) for on-road mobile source emissions 
measures, it is reasonable to conclude that Congress did not intend the 
other parts of section 150(c) to be used to address other similar or 
related performance measures, such as the GHG measure. At the same 
time, by placing the on-road mobile source emissions provision in 
section 150(c)(5), Congress limited the types of emissions that could 
be the subject of a performance measure to those listed in the CMAQ 
statute (23 U.S.C. 149(b)). CO2 is not among those 
pollutants. Given the long history of congressional actions relating to 
on-road mobile source emissions and the CMAQ Program, FHWA must presume 
that Congress understood both the breadth of the term ``on-road mobile 
source emissions,'' and the narrowness of the criteria pollutants 
covered by the CMAQ Program. It is reasonable to conclude that Congress 
was well aware that, because CO2 emissions are not a 
criteria pollutant covered by the CMAQ Program, section 150(c)(5) could 
not be used to create a performance measure for CO2. Nothing 
in section 150 suggests that Congress wanted the Secretary to go beyond 
the express emissions provision in section 150(c)(5), to undertake an 
expansive program relating to on-road mobile source emissions. Had it 
wanted to do so, Congress could have crafted such an express provision, 
but it did not do so. Given this statutory analysis, the reasons we 
have explained above, and upon reconsideration of our prior 
interpretation, we believe that a narrower interpretation of 
``performance'' as it relates to the ``performance'' of the Interstate 
System and the National Highway System is more consistent with the 
language of section 150. Accordingly, we have concluded that the term 
``performance'' as it relates to the Interstate System and the National 
Highway System is better read not to encompass measures relating to 
CO2, as previously concluded by FHWA in adopting the GHG 
measure in January 2017.
    Moreover, consistent with our reinterpretation of the statutory 
language of subsection 150(c), FHWA believes the better approach is to 
focus on implementing the CMAQ Program, as Congress directed, through 
FHWA's establishment of performance measures for States to assess on-
road mobile source emissions pursuant to 23 U.S.C. 150(c)(5). One 
reason is that the CMAQ statute reflects a more localized approach that 
is based on each State's nonattainment and maintenance areas for the 
covered pollutants.\15\ FHWA believes this tailored approach is more 
appropriate for the Federal-aid highway program than attempting to use 
a GHG measure to induce States to address global climate concerns. This 
view is supported by section 150(d)(2), which contemplates a localized 
approach by granting States the discretion to set different performance 
targets for urbanized and rural areas in developing and implementing 
the performance measures. Further, the CMAQ Program contains 
substantive requirements that are designed directly to ameliorate the 
localized effects of the covered pollutants.
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    \15\ 23 U.S.C. 149.
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    Finally, although FHWA has decided to repeal the GHG measure, many 
sources of information exist regarding GHGs and their impact on the 
environment, on both regional and local levels, which State DOTs and 
MPOs can continue to draw upon in evaluating their transportation 
projects. In addition, there are other comprehensive statutory schemes, 
such as the Corporate Average Fuel Economy program, administered by the 
National Highway Traffic Safety Administration, which exist to address 
issues such as the environment and energy conservation.
2. Costs and Burdens of the Measure
    Reducing regulatory burdens is a FHWA priority. FHWA is giving 
particular attention to opportunities to reduce burdens imposed by 
existing regulations through consideration of their repeal, 
replacement, or modification. Our efforts are guided by a number of 
Executive Orders, including Section 5 of Executive Order 12688, Section 
2 of Executive Order 13777, and Section 3 of Executive Order 13783, 
titled ``Promoting Energy Independence and Economic Growth.''
    After considering the comments received in this rulemaking and the 
revised regulatory impact assessment (RIA), FHWA has decided that the 
GHG measure imposes unnecessary regulatory burdens on State DOTs and 
MPOs with no predictable benefits. FHWA is concerned about the 
potential the GHG measure has to cause adverse impacts on overall State 
DOT and MPO efforts to implement the national performance management 
program. FHWA assigns a high priority to the successful implementation 
of the national performance management program. The removal of the GHG 
measure from the program reduces the number of measures the State DOTs 
and MPOs must address, and allows those entities to focus their 
resources on implementing the remaining measures. We heard from 
commenters that the GHG measure would impose additional resource 
requirements that would either adversely affect the ability of State 
DOTs and MPOs to implement the national performance management program, 
or take focus away from the core mission of FHWA.
    These costs include the resources needed to obtain and review the 
required data, to calculate the measure, and to coordinate and select a 
CO2 emissions target. The FHWA considered comments received 
about costs to set and report targets, and to calculate the metric. 
Also, if a State DOT does not achieve its selected target under the 
previous rule, it would incur additional costs to develop and report on 
actions the State DOT will take to make progress towards its 
target.\16\
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    \16\ 23 U.S.C. 119(e)(7) and 23 CFR 490.109.
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    Other types of costs are harder to predict with reasonable 
certainty, such as the GHG measure's potentially adverse impact in 
rural States. While the GHG measure did not require States to reduce 
CO2 emissions, a State could feel pressured to change its 
mix of

[[Page 24925]]

projects to reduce CO2 emissions. Rural States may face more 
challenges, and indirect costs, in adapting their programs to reduce 
CO2 emissions. The challenges are rooted in the type of 
driving typically done in rural areas, and the predominantly system-
preservation focus of rural States' highway programs. Commenters \17\ 
indicated rural residents drive relatively long distances, often in 
heavy-duty vehicles. Such States may have limited ability to reduce 
VMT. In some rural States, such as Alaska, on-road vehicle 
CO2 emissions represent a much smaller share of total 
CO2 emissions than in other States or in the United States 
as a whole.\18\ For rural States, this may mean shifting away from 
their typical system-preservation focus.\19\ A reduction in system 
preservation investments could result in adverse cost impacts because 
the failure to take timely preservation measures can result in higher 
costs over the life of a facility and other unintended results.\20\ 
According to one commenter,\21\ failure to preserve highway pavements 
could increase CO2 emissions as drivers reduce speeds due to 
rough surfaces.
---------------------------------------------------------------------------

    \17\ DOTs of ID, MT, ND, SD, and WY, FHWA-2017-0025-0125-4.
    \18\ Alaska DOT and Alaska Department of Environmental 
Conservation, FHWA-2017-0025-0135-3.
    \19\ Wyoming DOT, FHWA-2017-0025-0124-2.
    \20\ See, e.g. Life Cycle Cost Analysis Primer, FHWA (August 
2002) at page 10, available online at https://www.fhwa.dot.gov/asset/lcca/010621.pdf (as of May 1, 2018).
    \21\ Wyoming DOT, FHWA-2017-0025-0124-2.
---------------------------------------------------------------------------

    While the RIA for this final rule estimated marginally lower total 
costs than the RIA in the NPRM, FHWA reaches the same conclusion 
regarding the costs and burdens of the GHG measure. That analysis, 
summarized in Section VI.A. of this document, found that the aggregate 
costs to State DOTs and MPOs to implement the GHG measure would be 
$10.9 million over 9 years, discounted at 7 percent.\22\ These costs 
represent a burden that would be imposed on State DOTs and MPOs with no 
discernable benefits.
---------------------------------------------------------------------------

    \22\ Rounded from $10.89 million discounted at 7 percent.
---------------------------------------------------------------------------

    While some commenters argued that the GHG measure would produce 
wide-ranging benefits, it is important to recognize that the measure 
itself did not require reductions in CO2 emissions and would 
not have produced predictable climate change effects. The measure did 
not require State DOTs or MPOs to adopt targets that reflect declining 
emissions levels. As described in the PM3 Final Rule,\23\ the benefits 
that may possibly flow from the GHG measure came from its potential to 
influence State DOT and MPO investment decisions, and it is not 
possible to conclude with certainty the GHG measure would cause State 
DOTs and MPOs to make decisions that change CO2 emissions 
levels. Similarly, it is not possible to conclude with certainty that 
repeal of the rule will cause State DOTs and MPOs to make decisions 
that result in increases in CO2 emissions. The GHG measure 
had no legal power to force any change in CO2 emissions 
levels, and the GHG measure had no predictable effect on those 
emissions. The GHG measure required very limited actions (though with 
some cost) from State DOTs and MPOs, and those actions were purely 
administrative in character.\24\ FHWA concludes that it is not possible 
to predict, with any reasonable degree of certainty, the extent to 
which the influence effects of the GHG measure might result in actual 
changes in emissions levels. Thus, FHWA does not believe the 
speculative and uncertain benefits are a sufficient reason to retain 
the GHG measure, especially given the very definite costs associated 
with the measure.
---------------------------------------------------------------------------

    \23\ 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.
    \24\ Under the previous rule, State DOTs and MPOs were required 
to set CO2 emissions targets, which can be for declining 
emission levels, increasing emission levels, or unchanged emission 
levels, as compared to a 2017 baseline. State DOTs were required to 
use data from existing sources to calculate the CO2 
emissions measure at various points in time, reporting the results 
to FHWA. If the State DOT did not meet its target, it was required 
to report to FHWA on actions the State DOT would take to reach its 
selected target.
---------------------------------------------------------------------------

3. Duplication of Other Efforts
    FHWA also considered whether the GHG measure is duplicative, as 
raised by some commenters. In addition, the recent executive mandates 
to reduce regulatory costs and burdens mean FHWA must consider whether 
the information the measure would produce duplicates information 
produced by others.
    FHWA considered that there are other existing methods for producing 
nearly the same information as would result from the implementation of 
the GHG measure, using publicly available data and methodologies, if 
that information is desired. FHWA also recognized that the repeal of 
the measure would not affect the ability of State DOTs and MPOs to 
create their own CO2 emissions measures and targets 
independently outside the national performance management program. 
Indeed, several State DOTs and MPOs said that they are already tracking 
CO2 emissions, either voluntarily or to comply with State 
requirements.\25\
---------------------------------------------------------------------------

    \25\ Washington State DOT, FHWA-2017-0025-0132-10; National 
Capital Region Transportation Planning Board, FHWA-2017-0025-0158-6; 
City of New York, FHWA-2017-0025-0195-7; City of Portland, OR, FHWA-
2017-0025-0234-3; Northeast Ohio Areawide Coordination Agency 
(NOACA), FHWA-2017-0025-0243-2.
---------------------------------------------------------------------------

    Other Federal agencies, such as the Environmental Protection Agency 
(EPA) and the Department of Energy (DOE), have undertaken regulatory 
and other efforts to address CO2 emissions. Among those 
efforts is the annual DOE publication of State-by-State data on 
CO2 emissions for the transportation sector.\26\ That DOE 
transportation data includes CO2 emissions from all mobile 
sources (e.g., aviation, highway), not just motor vehicles (although 
the published table does not break the CO2 emissions data 
into subcategories, such as CO2 emissions on the NHS). Thus, 
the information published by EPA and DOE overlaps with, but is not 
precisely identical to, the information that would be produced by 
calculation of the GHG measure. However, that existing collection of 
data does provide States with trend information on CO2 
emissions from mobile sources in each State, and the highway component 
is based on the same fuel sales information used for the GHG measure.
---------------------------------------------------------------------------

    \26\ See ``CO2 Emissions from Fossil Fuel 
Combustion--Million Metric Tons CO2 (MMTCO2),'' available 
online at https://www.epa.gov/statelocalenergy/state-co2-emissions-fossil-fuel-combustion (as of January 19, 2018).
---------------------------------------------------------------------------

    In light of these circumstances, FHWA now concludes that the GHG 
measure in the performance management program is unnecessary. The 
information available through DOE informs State DOTs and MPOs whether 
transportation CO2 emissions in their States are increasing, 
decreasing, or staying the same. Although this existing information is 
provided at the transportation sector level, rather than the systems 
level, the information addresses the same ultimate point as the GHG 
measure. FHWA acknowledges there may be instances when States or MPOs 
may want to have CO2 emissions data for specific 
transportation systems or facilities, rather than data at the 
transportation sector level. State DOTs and MPOs are free to create 
such data, if they wish, by using publicly available data and existing 
methodologies.
    Pursuant to the mandates of Executive Order 13771, Executive Order 
13777, and Executive Order 13783, FHWA concluded that the data needed 
to support the GHG measure is at least somewhat duplicative of the EPA 
and

[[Page 24926]]

DOE data on CO2 emissions. That duplication, together with 
other options States and MPOs can use independently to produce more 
specific data if they wish, reduces the need for the FHWA GHG measure, 
and makes imposition of incremental regulatory costs less supportable. 
Even if the degree of duplication is limited, FHWA believes the 
duplication in information produced by the Federal government is a 
concern and a factor that supports repeal of the GHG measure.
    FHWA believes the repeal of the GHG performance measure will reduce 
the existing duplication, streamline the regulations, and reduce the 
potential for the confusion that can arise when multiple Federal and 
State entities impose different requirements for categorizing and 
measuring CO2 emissions. FHWA acknowledges that multi-
jurisdictional regulation of the same matter does occur, but FHWA 
believes that it ought to be avoided where reasonably possible and not 
inconsistent with statutory requirements.

C. Impact of Repeal on Effectiveness of Performance Management Program

    In the context of the national performance management program, FHWA 
believes the GHG performance measure can be repealed without harm to 
the overall effectiveness of the national performance management 
program. As described in the performance management statute, the 
purpose of the program is to provide a means to the most efficient 
investment of Federal transportation funds by refocusing on national 
transportation goals, increasing the accountability and transparency of 
the FAHP, and improving project decisionmaking through performance-
based planning and programming. The program is broad-based, and FHWA 
has substantial discretion in determining which types of performance 
measures will be given priority and adopted as national measures. After 
the repeal of the GHG measure, the remaining 17 national performance 
measures will fully meet the 23 U.S.C. 150 requirements, and serve the 
interests of the FAHP. The transparency and accountability effects of 
the national measures are unaffected by the repeal. The repeal of the 
GHG measure will permit State DOTs and MPOs to reallocate resources 
they would have used to implement the GHG measure, providing a 
potential benefit to implementation efforts for the remaining measures.

V. Response to Comments Received on the NPRM

    FHWA received 251 comment submissions to the public docket on the 
proposed NPRM to repeal the GHG measure. Many submittals were signed by 
multiple organizations or representatives. This section of the preamble 
provides a response to the most significant issues raised in the 
comments received.

A. Costs and Benefits of the GHG Measure

    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 9-year, discounted cost to comply with 
the GHG measure was estimated at $10.9 million in the PM3 Final 
Rule.\27\ In the NPRM to repeal the GHG measure, FHWA used this same 
$10.9 million figure as the amount of cost savings that would be 
achieved.
---------------------------------------------------------------------------

    \27\ Rounded from $10.96 million discounted at 7 percent.
---------------------------------------------------------------------------

    Commenters who supported the repeal of the GHG measure cited two 
primary reasons related to its costs. First, commenters argued that 
requiring the GHG measure diverts resources during a time of limited 
State resources, which could potentially affect their ability to 
deliver projects and programs, implement existing performance measures, 
and provide other transportation investments. Second, commenters argued 
that FHWA underestimated additional burdens of complying with the GHG 
measure requirement, though no further detail on those additional costs 
was provided.
    Commenters who stated that the measure should be retained cited a 
number of reasons as well. These commenters felt that the benefits 
would outweigh the costs of the measure and that FHWA overestimated the 
cost of compliance. Some commenters noted that several States and MPOs 
are already tracking CO2 emissions, either voluntarily or to 
comply with State requirements, and that repealing the GHG measure 
would, therefore, provide little if any savings to those particular 
entities. Other commenters argued that the cost of complying with the 
GHG measure is small when considered in relation to overall investments 
in transportation infrastructure, and that costs are ``negligible'' 
when spread out across State DOTs and MPOs. In response to the NPRM's 
request for comments on any costs to States associated with the NHPP 
``significant progress'' determination for the GHG measure,\28\ some 
noted that States that failed to meet their targets would need to 
document actions that would be taken to achieve the target in the 
future. However, the commenters indicated such States would likely need 
to perform ongoing investment-decision analysis anyway and, therefore, 
preparation of the action plan would not incur a significant additional 
burden.
---------------------------------------------------------------------------

    \28\ See 23 U.S.C. 119(e)(7).
---------------------------------------------------------------------------

    Several commenters also discussed that the proposed repeal did not 
take into account the benefits of keeping the GHG measure, such as 
foregone benefits associated with reduced household transportation 
costs, congestion, and delay. One commenter provided an analysis 
claiming that even minimal reductions in CO2 emissions, when 
monetized using FHWA's estimate of the social cost of carbon, would 
yield monetary benefits that would exceed the estimated cost of 
complying with the GHG measure. Other commenters \29\ cited as benefits 
the ability to compare CO2 emission rates with peer regions 
and States, measure and communicate the effect of transportation 
investments on CO2 emissions region-wide, and track 
emissions to set business goals.
---------------------------------------------------------------------------

    \29\ Oregon Environmental Council, FHWA-2017-0025-0130-2; 
Metropolitan Council, FHWA-2017-0025-0140-3; City of New York, FHWA-
2017-0025-0195-6; U.S. Green Building Council, FHWA-2017-0025-0247.
---------------------------------------------------------------------------

    Finally, several commenters \30\ said that without the GHG measure, 
the transportation-investment decisions by States and MPOs would result 
in increased CO2 emissions, which would result in increased 
economic costs from climate change. Many of them argued that these 
costs would exceed the benefits of repealing the GHG measure, and that 
the RIA did not estimate benefits.
---------------------------------------------------------------------------

    \30\ Oregon Environmental Council, FHWA-2017-0025-0130-1 and -2; 
Safe Routes to School National Partnership, FHWA-2017-0025-0133; 
Diaz, FHWA-2017-0025-0143; Caltrans and CARB, FHWA-2017-0025-0162-
10; Mass Comment Campaign led by NRDC, FHWA-2017-0025-0184; 
Institute for Policy Integrity at NYU School of Law, FHWA-2017-0025-
0189; Joint submission led by NRDC (12), FHWA-2017-0025-0190-3, -4, 
and -5; City of New York, FHWA-2017-0025-0195-1, -4, -6, and -7; 
Transportation for America, FHWA-2017-0025-0200-4; NOACA, FHWA-2017-
0025-0243-2; Southwest Energy Efficiency Project, FHWA-2017-0025-
0244-2; TRANSCOM, FHWA-2017-0025-0253.
---------------------------------------------------------------------------

FHWA Response
    FHWA reviewed the comments relating to the costs and benefits 
associated with keeping the GHG measure, including establishing 
performance targets, assessing and reporting on progress toward meeting

[[Page 24927]]

those targets, and calculating the GHG-related system performance 
metrics and measures. FHWA cannot accurately and confidently estimate 
the amount and value of the likely benefits of the GHG measure, and 
thus FHWA is not persuaded that the benefits of the GHG measure would 
justify its costs to States and MPOs. As with the other PM3 measures, 
there are requirements to set targets, but the GHG measure does not 
mandate changes in State DOT or MPO decisions on investments or 
management of the NHS relative to the measure or those targets. The GHG 
measure relies on influencing the behavior of State DOTs and MPOs. The 
measure does not require States or MPOs to reduce CO2 
emissions levels. Accordingly, any changes in CO2 emissions 
levels would be caused by the independent actions of State DOTs and 
MPOs when they make transportation-investment and operations decisions, 
and not as a direct result of the GHG measure. Any actions those 
entities might take to change the CO2 emissions levels 
associated with their portions of the NHS would occur only as part of a 
mix of issues they consider when making transportation-investment 
decisions. Many of the competing issues, such as safety, mobility, and 
congestion relief, would usually be of higher priority. Therefore, 
there is greater uncertainty about how much, if at all, overall agency 
decisions would be different if a GHG measure were in place versus not 
having it as a PM3 measure. FHWA notes that the RIA conducted for this 
rulemaking cannot clearly show that the GHG measure ``is necessary,'' 
\31\ as per OMB Circular A-4.
---------------------------------------------------------------------------

    \31\ See OMB Circular A-4, September 17, 2003 and Economic 
Assessment: Repeal of Green House Gas Performance Measure. https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    Regarding comments relating to the cost and burden of the GHG 
measure, FHWA carefully considered whether to adjust its analysis of 
the relative costs of the GHG measure and assessment of the measure's 
burden on States and MPOs. With respect to the comments that 
specifically addressed the estimated hours to calculate the GHG-related 
system performance metrics and measures, FHWA carefully considered them 
while preparing this final rule's RIA, refined the estimate of the 
number of hours it would take State DOTs to calculate the GHG measure, 
and conducted multiple sensitivity analyses. Commenters stated that the 
burden to establish performance targets or to assess and report on 
progress toward meeting those targets would be minimal. Comments 
regarding other factors that could reduce the overall burden to States 
and MPOs, such as future technology improvements and mutual assistance 
among States, were also considered. The final rule's RIA estimated 
marginally lower total costs than the NPRM's RIA, but this does not 
lead FHWA to a different conclusion regarding the costs and burdens of 
the GHG measure.
    FHWA reviewed comments regarding the fact that some States are 
already preparing a similar (or the same) GHG measure, independent of 
the rule, and that FHWA should therefore lower its estimated costs of 
implementing the GHG measure. The NPRM's accompanying RIA already 
assumed that some States are doing so, estimating that 42 of 52 States 
would have additional costs related to the GHG measure. None of the 
comments received specified a different estimate and this conclusion 
remains unchanged in the RIA for the final rule.
    While reviewing the comments that the total cost of the GHG measure 
is small relative to total annual expenditures on transportation, FHWA 
noted that it is required to look at the total costs of implementing 
the GHG measure and balance them against the total benefits directly 
due to that measure, not against another metric, such as overall 
transportation spending. Similarly, comments about the total costs per 
State or MPO on a per entity basis are not pertinent and do not address 
the fact that FHWA is required to analyze overall costs against overall 
benefits, not total costs relative to other costs, expenses, revenues, 
or other measures.
    In reviewing public comments and estimated costs of the proposed 
rule, FHWA considered the fact that alternative ways exist in which the 
same information could be collected but with less burden on States and 
MPOs. Data to calculate the GHG measure by State is already publicly 
available and can be calculated by a single person for all States at 
once, rather than having each State perform individual calculations. 
Under this scenario, overall efficiencies should lower the total costs 
of calculating the GHG measure.
    FHWA reviewed the comments on the forgone benefits of repealing the 
GHG measure requirement. FHWA carefully considered the comments that 
the GHG measure would lead to decreases in CO2 emissions, 
which the commenters thought would lead to other benefits, including 
fewer negative impacts on people's health and the natural environment. 
To attribute such health and environmental benefits to the GHG measure, 
FHWA must be confident that implementation of the GHG measure would 
result in different transportation-investment decisions by State and 
local agencies that directly cause reductions in CO2 
emissions. As noted by commenters, some agencies are already 
calculating a GHG-type measure for their State and others are not. 
Since, under the GHG measure, the State DOT can choose to establish its 
own GHG targets for a rise or decrease in CO2, the States 
that are more concerned with CO2 emissions are likely to set 
more aggressive targets. In such circumstances, FHWA believes that it 
is not possible to determine that the presence or absence of the GHG 
measure will result in changes in the overall set of investment 
transportation decisions by State and local agencies in the next few 
years. This uncertainty supports FHWA's decision to repeal the GHG 
measure.
    FHWA also carefully considered the comments stating that the GHG 
measure would lead to reductions in household transportation costs, 
congestion and delay, and transportation infrastructure and maintenance 
costs. In order for these benefits to be attributable to the GHG 
measure, the implementation of the GHG measure would need to result in 
different investment decisions by State and local agencies that would 
allow people to travel faster and more cheaply and that would be more 
cost effective to build and maintain. FHWA is not confident that 
including the GHG measure with other performance management metrics 
will result in transportation investments that are more efficient to 
develop, operate, and use. The comment that the GHG measure would also 
help foster a more competitive and growing economy is related to the 
above arguments; it is based on the presumption that the measure would 
result in transportation investment choices that are more efficient for 
the economy, which is not evident at this time. States wishing to 
compare themselves to their peers can do so independent of the presence 
of the GHG measure since the necessary data for all States is already 
publicly available.
    Regarding the comments that the NPRM's RIA does not include a 
quantitative assessment of the potential benefits of keeping the GHG 
measure, FHWA notes that the RIA is not required to include 
quantitative analysis (of either costs or benefits) if the agency does 
not have the necessary data and metrics to do so. OMB Circular A-4 
states that some important benefits and costs may be difficult or 
impossible to quantify or monetize, given current data

[[Page 24928]]

and methods. The circular advises agencies to carry out a careful 
evaluation of non-quantifiable and non-monetized benefits and 
costs.\32\ Based on this guidance, the RIA for both the NPRM and for 
this final rule include a qualitative analysis of potential forgone 
benefits resulting from repeal of the GHG measure.
---------------------------------------------------------------------------

    \32\ https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/.
---------------------------------------------------------------------------

B. Utility and Burden of the GHG Measure

Utility of the GHG Measure
    Twenty-eight commenters discussed whether the GHG measure, 
including the methodology adopted in the PM3 Final Rule, provides 
meaningful utility for assessment of environmental performance of the 
NHS. Twenty-three \33\ commenters said that the GHG measure does 
provide utility, while five commenters \34\ said that it does not 
provide utility.
---------------------------------------------------------------------------

    \33\ Washington State DOT, FHWA-2017-0025-0132; Rails to Trails 
Conservancy, FHWA-2017-0025-0139-2; Metropolitan Council, FHWA-2017-
140-1; Metropolitan Area Planning Council, FHWA-2017-0025-0150; 
Stratford MPO, FHWA-2017-0025-0151; Oregon DOT, FHWA-2017-0025-0152; 
Oregon Metro, FHWA-2017-0025-0160; National Capital Region 
Transportation Planning Board, FHWA-2017-0025-0158; Caltrans and 
CARB, FHWA-2017-0025-0162; Mass comment campaign led by U.S. PIRG 
(28), FHWA-2017-0025-0172-2; Joint submission led by NRDC (12), 
FHWA-2017-0025-0190-7, -8, and -9; City of New York, FHWA-2017-0025-
0195-6; Mass comment campaign sponsored by Transportation for 
America (87), FHWA-2017-0025-0197; Transportation for America, FHWA-
2017-0025-0200; Chicago Metropolitan Agency for Planning (CMAP), 
FHWA-2017-0025-201; Members of Congress (51), FHWA-2017-0025-0206-1; 
Colorado DOT, FHWA-2017-0025-0208; CrossTown Connect TMA, FHWA-2017-
0025-222; Association for Commuter Transportation, FHWA-2017-0025-
225; City of Portland, OR, FHWA-2017-0025-0234-1; Local Government 
Commission, FHWA-2017-0025-0236; Joint submission led by California 
Association of Councils of Governments (5), FHWA-2017-0025-0242-1; 
Brookings Institution, FHWA-2017-0025-0248-3 and -4.
    \34\ Wyoming DOT, FHWA-2017-0025-0124-2 and -3; DOTs of ID, MT, 
ND, SD, and WY, FHWA-2017-0025-0125-4; Texas DOT, FHWA-2017-0025-
0127-3; Joint submission led by American Highway Users Alliance 
(38), FHWA-2017-0025-0196-2 and -3; AGC, FHWA-2017-0025-0213-4 and -
5.
---------------------------------------------------------------------------

    Commenters who stated that the measure should be repealed cited 
three primary reasons. First, these commenters noted that State DOTs 
and MPOs have little to no ability to reduce CO2 emissions 
through highway programs because it has not been demonstrated that 
States or MPOs have the ability to effect meaningful change in 
CO2 emissions through stewardship of the highway program. 
They commented that the GHG rule effectively looks for GHG reductions 
from a largely preservation-oriented highway program where they are not 
available to be had. According to the commenters, the rule would place 
pressure on a State to change its mix of highway projects for 
speculative benefits.
    Second, two submissions \35\ noted that rural States may face 
particular challenges and program distortions under the rule. Five 
State DOTs jointly asserted that many of the strategies for how a State 
might influence CO2 emission that were included in the PM3 
Final Rule are not well-suited to rural settings, where residents drive 
relatively long distances, often in heavy-duty vehicles. The Wyoming 
DOT \36\ noted that rural States are focused on system preservation and 
that the GHG measure could pressure the agency to change its mix of 
projects away from preservation. According to the Wyoming DOT, failure 
to preserve pavement could increase CO2 emissions through 
reduced speeds due to rough surfaces. In a joint comment, two Alaska 
State agencies \37\ said on-road vehicle CO2 emissions 
represent a much smaller share of total CO2 emissions in 
Alaska than in other States or in the United States as a whole.
---------------------------------------------------------------------------

    \35\ Wyoming DOT, FHWA-2017-0025-0124-2; DOTs of ID, MT, ND, SD, 
and WY, FHWA-2017-0025-0125-4.
    \36\ Wyoming DOT, FHWA-2017-0025-0124-2.
    \37\ Alaska DOT and Alaska Department of Environmental 
Conservation, FHWA-2017-0025-0135-3.
---------------------------------------------------------------------------

    Third, another commenter \38\ asserted that GHG tailpipe emissions 
are already subject to regulation through the fuel economy standards 
set by DOT and EPA, and another \39\ stated that other Federal 
agencies, like EPA, already have set new nationwide standards and 
guidelines for CO2 emission reductions that are focused on 
the most significant sources.
---------------------------------------------------------------------------

    \38\ Joint submission led by American Highway Users Alliance 
(38), FHWA-2017-0025-0196-2 and -3.
    \39\ AGC, FHWA-2017-0025-0213-4 and -5.
---------------------------------------------------------------------------

    The commenters who stated that the GHG measure should be retained 
because it does provide utility \40\ cited the following reasons: 
Several State DOTs \41\ commented that the measure would be highly 
useful in understanding the trend of transportation emissions at the 
State level, evaluating national performance, and pursuing GHG 
reduction work. In a joint comment, 51 Members of Congress \42\ said 
that a GHG performance measure is critical for State DOTs and MPOs to 
determine the type of investments needed to accommodate future 
increases in passenger and freight travel. The lawmakers added that one 
of the national goals established in MAP-21 was environmental 
sustainability and that repealing the GHG measure would inhibit the 
ability of decisionmakers to make progress toward that national goal. 
Rails-to-Trails Conservancy \43\ stated that the GHG measure provides 
some assurance that State and local transportation agencies are 
tracking the full benefits of active transportation and trail networks. 
Similarly, the Association for Commuter Transportation \44\ said that 
repealing the GHG measure would cause a policy bias that would thwart 
efforts to improve air quality, reduce congestion, and create an 
efficient transportation system. Finally, four commenters \45\ asserted 
that tracking carbon emissions would be a valuable way to evaluate the 
spending decisions made by transportation agencies.
---------------------------------------------------------------------------

    \40\ Washington State DOT, FHWA-2017-0025-0132; Rails to Trails 
Conservancy, FHWA-2017-0025-0139-2; Metropolitan Council, FHWA-2017-
140-1; Metropolitan Area Planning Council, FHWA-2017-0025-0150; 
Oregon DOT, FHWA-2017-0025-0152; Oregon Metro, FHWA-2017-0025-0160; 
National Capital Region Transportation Planning Board, FHWA-2017-
0025-0158; Caltrans and CARB, FHWA-2017-0025-0162; Mass comment 
campaign led by U.S. PIRG (28), FHWA-2017-0025-0172-2; Joint 
submission led by NRDC (12), FHWA-2017-0025-0190-7, -8, and -9; City 
of New York, FHWA-2017-0025-0195-6; Mass comment campaign sponsored 
by the Transportation for America (87), FHWA-2017-0025-0197; 
Transportation for America, FHWA-2017-0025-0200; CMAP, FHWA-2017-
0025-201; Members of Congress (51), FHWA-2017-0025-0206-1; Colorado 
DOT, FHWA-2017-0025-0208; CrossTown Connect TMA, FHWA-2017-0025-222; 
Association for Commuter Transportation, FHWA-2017-0025-225; City of 
Portland, OR, FHWA-2017-0025-0234-1; Local Government Commission, 
FHWA-2017-0025-0236; Joint submission led by California Association 
of Councils of Governments (5), FHWA-2017-0025-0242-1; Brookings 
Institution, FHWA-2017-0025-0248-3 and -4.
    \41\ E.g., Oregon DOT, FHWA-2017-0025-0152; Washington State 
DOT, FHWA-2017-0025-0132-3.
    \42\ Members of Congress (51), FHWA-2017-0025-0206-1.
    \43\ Rails to Trails Conservancy, FHWA-2017-0025-0139-1.
    \44\ Association for Commuter Transportation, FHWA-2017-0025-
225.
    \45\ Metropolitan Area Planning Council, FHWA-2017-0025-0150; 
Stratford MPO, FHWA-2017-0025-0151; mass comment campaign sponsored 
by Transportation for America (87), FHWA-2017-0025-0197; mass 
comment campaign sponsored by Environmental Law & Policy Center 
(360), FHWA-2017-0025-0255.
---------------------------------------------------------------------------

Burden of the GHG Measure
    FHWA received 22 comments related to the resource burdens 
associated with the GHG measure. Twelve of the comments stated that the 
costs and resource burdens would be minimal, while ten of the comments 
noted that measure would be burdensome.

[[Page 24929]]

    Seven State DOTs \46\ and a joint letter by 38 associations \47\ 
commented that the GHG performance measure would require State DOTs to 
dedicate additional resources and effort to regulatory compliance, 
instead of focusing on the core mission of highway projects and 
programs. Similarly, the American Association of State Highway and 
Transportation Officials (AASHTO),\48\ the Association of Metropolitan 
Planning Organizations (AMPO),\49\ and the Georgia DOT \50\ commented 
that any new national-level measures added will require further 
implementation and evaluation, which may translate to less adequate 
resources and data to ensure effective implementation of existing 
measures. The AASHTO and the Western Connecticut Council of Governments 
\51\ said that State DOTs, MPOs, and DOT need both time and experience 
successfully to implement the other 17 new national-level measures that 
are currently required by regulations (in addition to those required by 
the National Highway Traffic Safety Administration and the Federal 
Transit Administration) before more measures are added. The Georgia DOT 
\52\ commented that, unlike many of the performance measures in effect, 
some performance measures such as the GHG measure are not appropriate 
to be implemented from a national or one-size-fits-all approach. The 
Missouri DOT \53\ said that transportation agencies should have the 
flexibility to develop performance measures other than those explicitly 
required by Federal statute without having to report them to FHWA. The 
Wyoming DOT specifically referenced the additional resources necessary 
to implement the GHG measure, which it said would take away staff 
resources and funds from achieving its core mission of highway projects 
and programs.
---------------------------------------------------------------------------

    \46\ Wyoming DOT, FHWA-2017-0025-0124-2; DOTs of ID, MT, ND, SD, 
and WY, FHWA-2017-0025-0125; Alaska, FHWA-2017-0025-0135; Tennessee 
DOT, FHWA-2017-0025-0258.
    \47\ Joint submission led by American Highway Users Alliance 
(38), FHWA-2017-0025-0196.
    \48\ AASHTO, FHWA-2017-0025-0138.
    \49\ AMPO, FHWA-2017-0025-0179.
    \50\ Georgia DOT, FHWA-2017-0025-0156.
    \51\ AASHTO, FHWA-2017-0025-0138; Western Connecticut Council of 
Governments, FHWA-2017-0025-0240-1.
    \52\ Georgia DOT, FHWA-2017-0025-0156.
    \53\ Missouri DOT, FHWA-2017-0025-0131.
---------------------------------------------------------------------------

    Many other commenters, including six State DOTs,\54\ four planning 
agencies,\55\ one local government,\56\ and a joint letter by six State 
Attorneys General,\57\ said that calculating the GHG measure would 
place a minimal burden on the States, particularly in comparison to the 
other performance measures already in place.\58\ The commenters noted 
that the data needed to calculate the measure is already collected and 
reported by States. The Minnesota DOT (MnDOT) \59\ said that it took 
only 2 hours for one of its employees to collect the data, perform the 
analysis, and complete a mock report that met FHWA requirements. MnDOT 
added that it expects the annual staff burden for analysis and 
reporting to be less than 2 hours per year, or approximately $530 over 
9 years. The City of New York \60\ commented that if the GHG measure 
were repealed, then the cost and time involved in doing transportation 
sector GHG analysis will be higher due to the lack of standardization 
of assumptions and reporting methods. The city asserted that, without 
the GHG measure, it will be harder to ensure consistency across the 
MPOs in the NJ-NY-CT metropolitan region, and to compare transportation 
CO2 emissions and mitigation strategies against those of 
other States and regions.
---------------------------------------------------------------------------

    \54\ Washington State DOT, FHWA-2017-0025-0132; Minnesota DOT, 
FHWA-2017-0025-0149; Oregon DOT, FHWA-2017-0025-0152; Vermont DOT, 
FHWA-2017-0025-0155; Caltrans and CARB, FHWA-2017-0025-0162; 
Colorado DOT, FHWA-2017-0025-0208.
    \55\ DVRPC, FHWA-2017-0025-0145; National Capital Region 
Transportation Planning Board, FHWA-2017-0025-158-5; Joint 
submission led by California Association of Councils of Government 
(5), FHWA-2017-0025-0242; TRANSCOM, FHWA-2017-0025-0253.
    \56\ City of New York, FHWA-2017-0025-0195.
    \57\ Attorneys General of CA, MD, OR, VT, WA, and MA, FHWA-2017-
002-0199.
    \58\ See Washington State DOT, FHWA-2017-0025-0132; Minnesota 
DOT, FHWA-2017-0025-0149; Oregon DOT, FHWA-2017-0025-0152; Vermont 
DOT, FHWA-2017-0025-0155; Caltrans and CARB, FHWA-2017-0025-0162; 
Colorado DOT, FHWA-2017-0025-0208; DVRPC, FHWA-2017-0025-0145; 
National Capital Region Transportation Planning Board, FHWA-2017-
0025-158-5; Joint submission led by California Association of 
Councils of Government (5), FHWA-2017-0025-0242; TRANSCOM, FHWA-
2017-0025-0253; City of New York, FHWA-2017-0025-0195; Attorneys 
General of CA, MD, OR, VT, WA, and MA, FHWA-2017-002-0199.
    \59\ Minnesota DOT, FHWA-2017-0025-0149.
    \60\ City of New York, FHWA-2017-0025-0195.
---------------------------------------------------------------------------

FHWA Response
    In considering the potential burden of the GHG measure, many States 
and planning agencies have accurately noted that establishing the 
target and calculating the measure would not require many additional 
resources, though the burden would vary by State and MPO depending on 
previous experience with the topic and the data. However, FHWA is 
concerned that even a marginal increase in effort generated by the GHG 
measure could cause some States and MPOs to reduce resources devoted to 
the other national performance measures.
    While the measure could help foster a structure for analyzing 
potential reductions at the State or local level, FHWA finds persuasive 
other commenters' concern that such a situation has adverse impacts. 
Those commenters \61\ stated the GHG measure puts pressure on them to 
reduce emissions, and that reducing emissions would be difficult, 
particularly in rural States. Others noted that there are already 
policies in effect to reduce tailpipe CO2 emissions. 
However, FHWA notes that the GHG measure did not force transportation 
entities to reduce CO2 emissions; the States and local 
agencies themselves set GHG targets at their discretion. Rather, the 
GHG measure required States to go through the process of setting 
targets, allowing States at their discretion to set targets that either 
increase, decrease, or maintain the status quo over time.
---------------------------------------------------------------------------

    \61\ Wyoming DOT, FHWA-2017-0025-0124-2; DOTs of ID, MT, ND, SD, 
and WY, FHWA-2017-0025-0125-4.
---------------------------------------------------------------------------

    FHWA agrees that more rural or preservation-focused States that are 
not building as much new infrastructure may have fewer options for 
reducing emissions. There are some available options, such as 
transportation system management and fuel switching strategies, for 
example, that may be appropriate for States to use voluntarily.\62\ 
These strategies do not rely on VMT reductions that arguably may be 
difficult to achieve in rural areas. Also, while valuable, the fuel 
economy standards raised by commenters represent only one method for 
addressing CO2 emissions from on-road vehicles.
---------------------------------------------------------------------------

    \62\ See FHWA's Reference Sourcebook for Reducing Greenhouse Gas 
Emissions from Transportation Sources (2012).
---------------------------------------------------------------------------

C. Duplication of Efforts at Federal, State, or Local Levels

    Seven agencies submitted comments related to whether repealing the 
measure would be appropriate to eliminate duplication of efforts, or to 
eliminate duplicative regulations and streamline the regulatory 
processes. Several State DOTs and MPOs \63\ said that they are already 
tracking CO2 emissions, either voluntarily or to comply with 
State requirements. Seven

[[Page 24930]]

commenters \64\ stated that the measure should be retained, and four 
\65\ said it should be repealed.
---------------------------------------------------------------------------

    \63\ Washington State DOT, FHWA-2017-0025-0132-10; National 
Capital Region Transportation Planning Board, FHWA-2017-0025-0158-6; 
City of New York, FHWA-2017-0025-0195-7; City of Portland, OR, FHWA-
2017-0025-0234-3; NOACA, FHWA-2017-0025-0243-2.
    \64\ Washington State DOT, FHWA-2017-0025-0132-6 and -10; Oregon 
DOT, FHWA-2017-0025-0152; Joint submission led by California 
Association of Councils of Governments (5), FHWA-2017-0025-0242; 
National Capital Region Transportation Planning Board, FHWA-2017-
0025-0158; City of New York, FHWA-2017-0025-0195; City of Portland, 
OR, FHWA-2017-0025-0234-3; NOACA, FHWA-2017-0025-0243.
    \65\ Arkansas DOT, FHWA-2017-0025-0054, Alaska DOT and Alaska 
Department of Environmental Conservation, FHWA-2017-0025-0135; 
AASHTO, FHWA-2017-0025-0138; Western Connecticut Council of 
Governments, FHWA-2017-0025-0240.
---------------------------------------------------------------------------

    One State DOT said that the GHG performance measure should be 
repealed because it is duplicative of other government efforts to 
estimate and regulate air emissions.\66\ Another commenter said that 
the transportation conformity process already governs air emissions and 
could be extended to include GHGs, possibly at lower cost.\67\ One 
commenter \68\ stated that the EPA MOVES14 vehicle emissions model 
already has the capability of estimating vehicle CO2 
emissions. One State DOT and one State environmental agency \69\ 
jointly noted that the EPA GHG Emissions Inventory relies on 
information already provided by State DOTs to FHWA on a monthly basis. 
The commenters added that the U.S. Department of Energy's Energy 
Information Administration (EIA) also tracks fuel production and use by 
the transportation sector.
---------------------------------------------------------------------------

    \66\ Alaska DOT and Alaska Department of Environmental 
Conservation, FHWA-2017-0025-0135-1.
    \67\ Western Connecticut Council of Governments, FHWA-2017-0025-
0240-2.
    \68\ AMPO, FHWA-2017-0025-0179-2.
    \69\ Alaska DOT and Alaska Department of Environmental 
Conservation, FHWA-2017-0025-0135-1 and -2.
---------------------------------------------------------------------------

    One State DOT,\70\ referencing comments submitted previously during 
the prior rulemaking by nine additional State DOTs, noted FHWA 
incorporated many of their suggestions in the January 2017 PM3 Final 
Rule, and as a result the rule is not duplicative. Two State DOTs and 
one MPO noted that the rule is aligned with their existing goals and 
would therefore not be duplicative.\71\
---------------------------------------------------------------------------

    \70\ Minnesota DOT, FHWA-2017-0025-0148.
    \71\ Washington State DOT, FHWA-2017-0025-0132-6; Oregon DOT, 
FHWA-2017-0025-0152-10; Joint submission led by California 
Association of Councils of Governments (5), FHWA-2017-0025-0242-2.
---------------------------------------------------------------------------

FHWA Response
    Other Federal agencies, such as EPA and DOE, have undertaken 
regulatory and other efforts to address CO2 emissions. Those 
efforts include production by DOE of annual State-by-State 
CO2 emissions information for the transportation sector. 
FHWA has reviewed the comments in this area and the efforts of other 
agencies, and concludes that the rule is unnecessarily duplicative of 
efforts at the Federal level to produce information on CO2 
emissions.
    FHWA fully considered the comments relating to duplication, as well 
as the potential impacts on the national performance management program 
if FHWA repeals the GHG performance measure. As noted in the PM3 Final 
Rule,\72\ the existence of other governmental efforts in this area does 
not necessarily bar FHWA from using CO2 emissions as a 
performance measure; however, FHWA must consider whether the existence 
of duplication in this area might indicate that this is not the best 
use of Federal regulation. After further consideration, FHWA believes 
the duplication issue is meaningful to FHWA's reconsideration of the 
GHG performance measure at this time. FHWA believes the repeal of the 
GHG performance measure will reduce duplication at the Federal level, 
and reduce the potential for the confusion that could arise when 
multiple Federal entities impose different requirements for 
categorizing and measuring CO2 emissions. FHWA acknowledges 
that multi-jurisdictional regulation of the same matter does occur, but 
FHWA believes that it ought to be avoided where avoidance is reasonably 
possible and not inconsistent with statutory requirements.
---------------------------------------------------------------------------

    \72\ Final Rule on ``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'': Docket No. FHWA-2013-0054, RIN 2125-
AF54, Federal Register--Vol. 82, No. 11, Pg. 5996--January 18, 2017: 
https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.
---------------------------------------------------------------------------

    States and MPOs are free to continue to adopt their own measures 
for CO2 emissions, including measures that rely on the same 
methodology and data as the FHWA GHG performance measure. They also are 
free to produce CO2 emissions information specific to 
highway systems and individual facilities. The CO2 emissions 
data used in the FHWA CO2 measure is publicly available, and 
that availability is not impacted by the repeal of this measure.

D. Appropriateness of the Measure Methodology

    Five commenters addressed the level of precision associated with 
the original rule, and whether the measure impedes the ability of State 
DOTs and MPOs to use the measure and associated targets in evaluating 
system performance and making investment decisions. All five \73\ 
agencies stated the measure is accurate enough so as to provide 
sufficient trend information to determine whether the rule is effective 
at reducing emissions and should be retained. These commenters found 
the GHG measure to be simple and replicable nationwide, that it 
provides sufficiently accurate trend information to make significant 
progress determinations, and that it would provide a useful reference 
point and inform decision-making over time.
---------------------------------------------------------------------------

    \73\ Washington State DOT, FHWA-2017-0025-0132-4; Metropolitan 
Council, FHWA-2017-0025-0140-2; Oregon DOT, FHWA-2017-0025-0152-5 
and -7; National Capital Region Transportation Planning Board, FHWA-
2017-0025-0158-3; City of Portland, OR, FHWA-2017-0025-0234-2.
---------------------------------------------------------------------------

FHWA Response
    FHWA has decided to repeal the GHG measure for reasons unrelated to 
the soundness of the measure's methodology. For those commenters who 
find that the methodology for the GHG measure is well-suited for use 
with a GHG performance measure, FHWA notes that State DOTs and MPOs may 
independently choose to adopt this methodology outside of the national 
performance management program.

E. Alternatives to Current GHG Performance Measure

    FHWA considered alternatives to the repeal of the GHG measure, 
including alternatives suggested by commenters. This included 
consideration of whether FHWA should retain the measure as adopted in 
the PM3 Final Rule, or adopt a modified version of the GHG measure 
within the framework of the national performance management program.
    The AMPO \74\ stated that if CO2 emissions must be 
measured, EPA is the Federal agency that should administer such a 
requirement, because EPA already requires emissions measures for 
criteria pollutants as part of the transportation-conformity process. 
The commenter indicated the EPA MOVES14 vehicle emissions model already 
has the capability of estimating vehicle CO2 emissions; 
however, those estimates are rather crude and based on assumed fuel 
economy and the amount of fuel consumed. Thus, a State-by-State 
estimate of CO2 emissions could just as easily be determined 
by EPA or FHWA based on fuel sales and vehicle fuel economy. For this 
reason, AMPO stated, there is no need to burden the States and MPOs to 
report these estimates.
---------------------------------------------------------------------------

    \74\ AMPO, FHWA-2017-0025-0179-2.
---------------------------------------------------------------------------

    The CMAP \75\ suggested establishing a measure that addresses all 
on-road

[[Page 24931]]

mobile sources and reporting the measure both in absolute and 
normalized terms using population. CMAP stated that the EPA's Motor 
Vehicle Emissions Simulator (MOVES) or a simplified speed-emissions 
rate lookup table based on MOVES could be used to help address the 
concerns that the original measure calculation (using VMT and fuel 
sales to calculate CO2 emissions) is not sophisticated 
enough to capture some of the nuances of CO2 emissions.
---------------------------------------------------------------------------

    \75\ CMAP, FHWA-2017-0025-0201.
---------------------------------------------------------------------------

    The Western Connecticut Council of Governments \76\ recommended 
FHWA work with EPA to expand the existing transportation-conformity 
process that EPA oversees, and in which State DOTs and MPOs 
participate, to include CO2 emissions. They thought there 
was the potential for the benefit-cost ratio of such an extension to be 
more favorable than the creation of a GHG performance measure under 
Title 23. They also discussed the benefits of voluntary measures, such 
as allowing States' focus to remain on requirements relating to other 
performance measures while also allowing for policy experimentation, 
innovation, and peer learning.
---------------------------------------------------------------------------

    \76\ Western Connecticut Council of Governments, FHWA-2017-0025-
0240-1.
---------------------------------------------------------------------------

    In addition to alternatives submitted by commenters, FHWA 
considered directly publishing CO2 emissions trend 
information as an alternative means to achieve the outcomes FHWA 
expected from the GHG measure. Under this alternative, FHWA would 
calculate trend information using much the same methodology as the GHG 
measure, though the trend information would not involve any performance 
targets. This alternative would not use a ``measure and target'' 
framework, which is required in the performance management program 
under section 150. For that reason, adopting this alternative would 
result in the repeal of the GHG measure.
FHWA Response
    None of the alternatives provide a way to modify the GHG measure 
while retaining it as part of the national performance management 
program at this time. The alternative proposed by AMPO would have a 
Federal agency calculate the measure for each State DOT and MPO. FHWA 
agrees that a single Federal or private entity could calculate the 
measure based on fuel sales. However, the State DOTs and MPOs still 
would have to carry out the remaining activities required for the 
national performance management program. These include setting their 
CO2 emissions targets (a local, not a Federal, decision), 
reporting to FHWA on progress toward their targets, and determining a 
plan of action to make progress toward their selected targets if they 
failed to make significant progress during a performance period.\77\ 
Therefore, having FHWA or EPA calculate the measure would not 
substantially reduce the overall burden on States or MPOs.
---------------------------------------------------------------------------

    \77\ See 23 CFR 490.105, 490.107, 490.109.
---------------------------------------------------------------------------

    In addition, with respect to CMAP's comments on using MOVES to 
calculate the measure, FHWA considered this suggestion during the PM3 
rulemaking. FHWA elected to use fuel sales to calculate the measure, 
instead of MOVES, because such a requirement to use MOVES would create 
an extra burden for State DOTs and MPOs that do not currently use that 
model. One of the reasons FHWA is repealing the GHG measure through 
this rulemaking is to reduce the burdens on State DOTs and MPOs. 
Switching to the use of MOVES would likely increase, not decrease, the 
burdens imposed on State DOTs and MPOs by the GHG measure.
    FHWA interprets the Western Connecticut Council of Governments' 
comment as suggesting it might be more beneficial if the transportation 
air quality conformity program, rather than the national performance 
management program, were used to address CO2 emissions in 
transportation. FHWA believes this comment supports its decision to 
remove the GHG measure from the national performance management 
program. EPA has used the conformity program to mandate changes in 
emissions levels of pollutants subject to conformity. FHWA defers to 
EPA on whether adding CO2 emissions to the conformity 
program is an appropriate action.
    FHWA acknowledges the Western Connecticut Council of Governments' 
suggestion that the voluntary use of a GHG performance measures might 
prove useful, but FHWA does not believe a voluntary measure can be 
included in the national performance management program. Making the GHG 
measure voluntary would require FHWA to establish a new category for 
voluntary measures, create a set of procedures for voluntary measures, 
and exempt voluntary measures from certain parts of the existing 
performance management regulations in 23 CFR part 490. FHWA is also 
concerned that an attempt to accommodate voluntary performance measures 
in the national performance management program could cause confusion 
among stakeholders, including State DOTs, MPOs, and the public. Such 
confusion would be harmful to the national performance management 
program. FHWA encourages State DOTs and MPOs to continue to establish 
and use performance measures independent of the national performance 
management program, as many have done for a long time.
    In addition to alternatives suggested by commenters, FHWA 
considered the alternative of having FHWA provide CO2 
emissions information directly. Under this alternative, FHWA would 
directly calculate the State-by-State trends and publish the 
information, which would eliminate requirements for State DOTs and MPOs 
to implement the GHG measure. This alternative could have the some of 
the influencing effects FHWA described in the PM3 Final Rule, although 
this alternative has some potential to result in lower levels of 
engagement by State DOTs and MPOs than alternatives that retain a GHG 
measure. This alternative would require FHWA to provide some additional 
administrative resources, or reallocate existing resources that FHWA 
currently uses for other work. Like State DOTs, FHWA operates in a 
resource-constrained environment. FHWA declines to adopt this 
alternative at this time.

F. Other Comments

1. Legal Authority for the GHG Measure
    Roughly one in ten commenters submitted opinions on FHWA's legal 
authority to establish this rule. Eleven commenters \78\ stated that 
FHWA does have the authority; whereas, twelve commenters \79\ had the 
opposite opinion. A number of commenters suggested that FHWA has 
authority to regulate, arguing that a GHG measure is

[[Page 24932]]

authorized by 23 U.S.C. 150 and other Title 23 statutes, reiterating 
the same reasons articulated in the PM3 rulemaking.\80\ One commenter 
\81\ stated the EPA's endangerment finding \82\ for CO2 
emissions provides FHWA with legal authority to regulate CO2 
emissions.
---------------------------------------------------------------------------

    \78\ Metropolitan Council, FHWA-2017-0025-0140-1; Association of 
Pedestrian and Bicycling Professionals, FHWA-2017-0025-141-1; 
Minnesota DOT, FHWA-2017-0025-0149-2; Metropolitan Area Planning 
Council, FHWA-2017-0025-0150; Caltrans and CARB, FHWA-2017-0025-
0162-7 and -8; Straw, FHWA-2017-0025-0173; Joint submission led by 
NRDC (12), FHWA-2017-0025-190-1 and -2; mass comment campaign led by 
U.S. PIRG (mayors) (66), FHWA-2017-0025-0192; Attorneys General of 
CA, MD, OR, VT, WA, and MA, FHWA-2017-0025-0199-3; Transportation 
for America, FHWA-2017-0025-0200-1 and -3; Colorado DOT, FHWA-2017-
0025-0208-3.
    \79\ Arkansas DOT, FHWA-2017-0025-0054; Michigan DOT, FHWA-2017-
0025-0070; DOTs of ID, MT, ND, SD, and WY, FHWA-2017-0025-0125; 
Texas DOT, FHWA-2017-0025-0127; Michigan DOT, FHWA-2017-0025-0134; 
Nebraska DOT, FHWA-2017-0025-0146; Montana DOT, FHWA-2017-0025-0153; 
National Ready Mixed Concrete Association, FHWA-2017-0025-0159-2; 
Joint submission led by American Highway Users Alliance (38), FHWA-
2017-0025-0196-3; AGC, FHWA-2017-0025-0213-1; ARTBA, FHWA-2017-0025-
0246-1; Tennessee DOT, FHWA-2017-0025-0258.
    \80\ ``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.
    \81\ Isbell, FHWA-2017-0025-0169.
    \82\ https://www.gpo.gov/fdsys/pkg/FR-2009-12-15/pdf/E9-29537.pdf.
---------------------------------------------------------------------------

    Most of the comments received in this rulemaking stating that FHWA 
does not have legal authority to adopt a GHG measure recited the same 
reasons as comments received during the PM3 rulemaking.\83\ These 
comments pointed to the language in 23 U.S.C. 150(c)(2)(C) that limits 
FHWA authority to adopting performance measures described in that 
statute. Given that GHG is not expressly mentioned anywhere in the 
statute, the commenters viewed a GHG measure as prohibited by 23 U.S.C. 
150(c)(2)(C). Some commenters noted that while 23 U.S.C. 150(c)(5) 
calls for an emissions measure, that provision is tied to the CMAQ 
program. Because CO2 emissions are not a criteria pollutant 
targeted by the CMAQ Program, the commenters concluded 23 U.S.C. 
150(c)(5) could not provide a legal basis for a GHG measure.\84\
---------------------------------------------------------------------------

    \83\ ``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.
    \84\ DOTs of ID, MT, ND, SD, and WY, FHWA-2017-0025-0125-3; 
Texas DOT, FHWA-2017-0025-0127-2; Joint submission led by American 
Highway Users Alliance (38), FHWA-2017-0025-0196-3; ARTBA, FHWA-
2017-0025-0246-3.
---------------------------------------------------------------------------

    Two joint submissions \85\ stated that principles of statutory 
construction barred FHWA from adopting a GHG performance measure. The 
commenters pointed out that Congress expressly addressed emissions in 
23 U.S.C. 150(c)(5). Applying the statutory construction principle that 
``the specific governs the general,'' the commenters concluded that 
Congress expressly stated how to address emissions in 23 U.S.C. 
150(c)(5), and that nothing in the remainder of 23 U.S.C. 150(c) 
provided other authority to regulate emissions.
---------------------------------------------------------------------------

    \85\ DOTs of ID, MT, ND, SD, and WY, FHWA-2017-0025-0125-3; 
Joint submission led by American Highway Users Alliance (38), FHWA-
2017-0025-0196-3.
---------------------------------------------------------------------------

    Finally, the Michigan DOT \86\ pointed out that GHGs are not 
criteria air pollutants targeted by CMAQ funding and expressed concern 
about the precedent that would be set if FHWA were to establish a 
performance measure for which Congress did not designate any funding.
---------------------------------------------------------------------------

    \86\ Michigan DOT, FHWA-2017-0025-0070-1.
---------------------------------------------------------------------------

FHWA Response
    FHWA appreciates the many comments received in this rulemaking on 
the question of FHWA's legal authority. Please see our resolution of 
the legal authority issue above in Section IV.B.1.
2. Legal Duty To Adopt a GHG Measure
    Two submissions \87\ stated that FHWA has a duty to adopt a GHG 
measure. One \88\ described FHWA's obligation to use ``unenumerated 
performance criteria'' when such measures are ``appropriate or 
necessary to further Congress's purposes.'' That commenter also stated 
that emissions that cause climate change would be a critical aspect of 
NHS performance in the future, and that it would be ``contrary to the 
statute, and to the record, for the FHWA to decline to exercise its 
discretion to include'' a GHG measure.
---------------------------------------------------------------------------

    \87\ Caltrans and CARB, FHWA-2017-0025-0162-7; Attorneys General 
of CA, MD, OR, VT, WA, and MA, FHWA-2017-0025-0199-5.
    \88\ Caltrans and CARB, FHWA-2017-0025-0162-7.
---------------------------------------------------------------------------

FHWA Response
    FHWA does not believe that a GHG measure is mandated by 23 U.S.C. 
150(c). As noted by commenters in this rulemaking, there is no explicit 
reference to a GHG measure in 23 U.S.C. 150(c). Thus, adoption of a GHG 
measure rested entirely on FHWA's discretion to interpret 23 U.S.C. 
150(c). As discussed in the legal authority section in Section IV.B.1, 
FHWA has concluded, upon reconsideration, that the better reading of 
the statute does not encompass the GHG measure.
3. Administrative Procedure Act Concerns
    We received a joint comment from State Attorneys General \89\ 
arguing that repealing the GHG measure would be arbitrary and 
capricious under the Administrative Procedure Act (APA). The comment 
claimed that FHWA's NPRM had not provided sufficient justification to 
repeal the measure, and FHWA could not provide the reasoned analysis 
needed to support a repeal of the GHG measure. The comment also stated 
that FHWA must consider alternative solutions to address alleged 
problems with the GHG measure, rather than repealing it. Two other 
commenters \90\ noted similar APA concerns, with one \91\ stating that 
a repeal would be inconsistent with ``relevant executive orders,'' 
based on a comparison of the cost analysis in the PM3 Final Rule and 
the cost analysis in the NPRM for this rulemaking.
---------------------------------------------------------------------------

    \89\ Attorneys General of CA, MD, OR, VT, WA, and MA, FHWA-2017-
0025-0199-4.
    \90\ Straw, FHWA-2017-0025-0173; Joint submission led by NRDC 
(12), FHWA-2017-0025-0190-1 and -3.
    \91\ Joint submission led by NRDC (12), FHWA-2017-0025-0190-1 
and -3.
---------------------------------------------------------------------------

FHWA Response
    FHWA has examined the relevant data and other information, and 
carefully considered the comments received, as outlined in this 
document. FHWA has examined the facts and has provided a reasoned 
explanation for the repeal of the GHG measure consistent with APA 
requirements, as detailed throughout this preamble.
4. Rulemaking Concerns
    FHWA received comments \92\ concerning the comment period, 
requesting an extension or otherwise stating the 30-day comment period 
was inadequate. Four commenters \93\ stated that FHWA should issue a 
new, full NPRM to effectuate the repeal to better define the proposed 
regulatory action, and allow for broad comment on the specifics of a 
proposed policy.
---------------------------------------------------------------------------

    \92\ Joint submission led by Clean Air Carolina (4), FHWA-2017-
0025-0027; City of New York Law Department, FHWA-2017-0025-0060; 
Joint submission led by Clean Air Carolina (4), FHWA-2017-0025-0027; 
City of New York Law Department, FHWA-2017-0025-0060.
    \93\ Schroeckenthale, FHWA-2017-0025-0030; Oregon DOT, FHWA-
2017-0025-0152-1; Caltrans and CARB, FHWA-2017-0025-0162-12; Denver 
Regional Council of Governments, FHWA-2017-0025-0163.
---------------------------------------------------------------------------

FHWA Response
    FHWA considered the comments stating FHWA should have provided a 
90-day comment period for this rulemaking, questioning whether the 
proposed regulatory action and related matters were adequately 
described in the NPRM, and suggesting FHWA should have engaged in 
additional rulemaking to seek comments on certain topics not specified 
in the NPRM.
    While FHWA sometimes uses a 90-day comment period in its rulemaking 
proceedings, that length of time is not required. In this instance, 
FHWA received not only comments asking for a longer comment period, but 
also comments asking for a quick decision so States could have 
certainty about the national performance measures. FHWA did provide a 
short extension of the 2017 comment period, from November 6 to November 
15. However, FHWA

[[Page 24933]]

concluded the comment period represented a reasonable balance of the 
various concerns and declined to further extend the time for comment.
    FHWA reviewed the NPRM in response to the suggestions that the NPRM 
did not meet APA requirements for notice of the proposed regulatory 
action. FHWA concluded the NPRM provides adequate notice of the 
proposal. The NPRM describes the history of the GHG measure, some of 
the concerns identified by commenters in the PM3 rulemaking, the 
reasons FHWA was proposing a repeal, and a request for comments on 
specific questions and on whether FHWA should take an action other than 
repeal (i.e., retain or revise the GHG measure). The NPRM included the 
regulatory language needed for a repeal of the measure. Considered 
together, these elements provided more than adequate notice that FHWA 
was considering repeal of the GHG measure due to various concerns, 
including policy changes, reconsideration of the legal authority for 
the measure, implementation costs and other regulatory burdens, lack of 
precision in the measure, lack of utility of the measure, and 
duplication of requirements. FHWA received comments in this rulemaking 
on all of these topics. FHWA concluded no additional rulemaking 
proceeding is needed before FHWA makes a decision on the GHG measure.
5. Environmental Reviews
    Caltrans and the CARB \94\ jointly argued that, because repeal 
would result in increased CO2 emissions and exacerbation of 
climate change, FHWA may not repeal the GHG performance measure without 
considering the implications of such a repeal on ``many affected 
resources and communities.'' The commenters asserted that the required 
analytic considerations, include, but are not limited to, the 
following: A full environmental impact statement (EIS) pursuant to the 
National Environmental Policy Act (NEPA); analysis and consultation 
under the Endangered Species Act (ESA); review under the National 
Historic Preservation Act (NHPA); review under Executive Order 13211; 
and review under Executive Order 12898.
---------------------------------------------------------------------------

    \94\ Caltrans and CARB, FHWA-2017-0025-0162.
---------------------------------------------------------------------------

FHWA Response
    Repeal of the GHG measure does not require an EIS or the other 
reviews called for by the comment. The commenters incorrectly conclude 
that the repeal of the measure would ``result in increased GHG 
emissions.'' \95\
---------------------------------------------------------------------------

    \95\ Caltrans and CARB, FHWA-2017-0025-0162.
---------------------------------------------------------------------------

    As a matter of law, the 23 U.S.C. 150 performance measures are part 
of a congressionally mandated performance management system intended to 
provide a means to the most efficient investment of Federal 
transportation funds by refocusing on national transportation goals, 
increasing the accountability and transparency of the FAHP, and 
improving project decisionmaking through performance-based planning and 
programming. The planning statutes incorporate performance management 
into the metropolitan and statewide transportation planning 
processes.\96\ Those statutes call for use of the performance measures 
and targets adopted pursuant to 23 U.S.C. 150(c) and (d) to assess 
performance and progress towards critical outcomes for the States and 
regions of the MPOs, not to regulate State and MPO activities. 
Performance management, together with asset management plans prepared 
pursuant to 23 U.S.C. 119, and other State plans, feed into the 
metropolitan and statewide transportation planning process that States 
DOTs and MPOs use to identify their investment priorities.\97\ The 
performance measures and resulting targets are planning and 
administrative activities that do not involve or lead directly to 
construction. The comprehensive, interrelated, planning-based nature of 
this system is evident in MAP-21, where Congress addressed metropolitan 
and statewide planning and performance management together in their own 
subtitle of the reauthorization legislation.\98\
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    \96\ See 23 U.S.C. 134(h)(2) and 135(d)(2).
    \97\ See 23 CFR 450.206(c)(4)-(5) and 450.306(d)(2) and (4).
    \98\ See Map-21, Subtitle B, Sections 1201-1203.
---------------------------------------------------------------------------

    As previously described, the GHG measure relies on influencing the 
behavior of State DOTs and MPOs. It does not require any action by 
those entities to reduce CO2 emissions. The repeal of the 
GHG measure cannot be determined to cause increases in CO2 
emissions because the GHG measure has no legal power to force any 
change in CO2 emission levels under 23 U.S.C. 150, and the 
GHG measure does not have a predictable effect on those emissions. 
State DOTs and MPOs were free to choose targets that reflect an 
increase, a decrease, or static levels of CO2 emissions. The 
GHG measure required limited actions from State DOTs and MPOs, and 
those actions are administrative in character.\99\ The measure, which 
did not set any regulatory limit or emissions target, relied on the 
potential that it may produce an ``influencing'' effect on third-party 
behavior.\100\ But acting to influence others is different from an 
action that imposes a requirement to meet an emissions limit, or 
otherwise commands State DOTs and MPOs to produce a specific outcome 
with respect to CO2 emissions. It is not possible to 
determine whether the behavior of third parties will change as a result 
of the retention, modification, or repeal of the GHG measure, or to 
what degree a change in third-party behavior will have any effect on 
CO2 emissions. None of the laws cited by the commenter 
require FHWA to engage in such speculation.
---------------------------------------------------------------------------

    \99\ State DOTs and MPOs must set CO2 emissions 
targets, which can be for declining emission levels, increasing 
emission levels, or unchanged emission levels, as compared to a 2017 
baseline. State DOTs must use data from existing sources to 
calculate the CO2 emissions measure at various points in 
time, reporting the results to FHWA. If the State DOT does not meet 
its target, it must report to FHWA on actions the State DOT will 
take to reach its selected target.
    \100\ 82 FR at 5975-76.
---------------------------------------------------------------------------

    The impacts of Title 23-funded projects and programs selected by 
State DOTs and MPOs through the metropolitan and statewide planning 
process are subject to NEPA and other reviews listed in the comment 
prior to the project's implementation. That is the correct point in the 
process for such reviews, as that is the time when potential impacts 
can be determined with reasonable accuracy. Thus, there is no basis now 
for the reviews that the commenters seek. Rather than ``escaping'' 
evaluation as commenters contend, these issues can be addressed at an 
appropriate time in connection with the particular projects or 
programs. Please see Section VI.G. of this document for FHWA's 
regulatory analysis conducted pursuant to NEPA.

VI. Rulemaking Analyses and Notices

A. Executive Order 13771 (Reducing Regulations and Controlling 
Regulatory Costs), Executive Order 12866 (Regulatory Planning and 
Review), Executive Order 13563 (Improving Regulation and Regulatory 
Review), and DOT Regulatory Policies and Procedures

    FHWA has determined that this action is a significant action within 
the meaning of Executive Order (E.O.) 12866 and within the meaning of 
DOT regulatory policies and procedures. However, 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

[[Page 24934]]

public interest in the transformation of the FAHP to be performance-
based, although it is not economically significant within the meaning 
of E.O. 12866.
    FHWA considers this final rule to be an E.O. 13771 deregulatory 
action, resulting in $1.67 million in annualized cost savings at a 7 
percent discount rate. Details on the estimated cost savings of this 
final rule are presented in the RIA, 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 is unable 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 of this final rule, FHWA assessed the 
level of effort that would have been needed to comply with each section 
under the PM3 rule with respect to the now-repealed GHG measure. These 
costs are expressed in labor hours and the labor categories for those 
needed to implement the GHG measure. Level of effort by labor category 
is monetized with loaded wage rates to estimate total costs.
    Table 2 displays the total cost savings of this final rule for the 
9-year study period (2018-2026) and the corresponding annualized 
values.

                                     Table 2--Total Cost Savings of the Rule
----------------------------------------------------------------------------------------------------------------
                                                        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 Adjust GHG Targets............       6,368,958       7,392,818         977,549         949,488
    Reporting on GHG Targets and Progress Toward       2,573,869       3,068,421         395,054         394,089
     Them.......................................
    Develop and Report Plan to Achieve GHG               147,435         191,552          22,629          24,602
     Targets....................................
Section 490.511--Calculation of System                 1,752,927       2,094,857         269,051         269,051
 Performance Metrics............................
    Calculate Annual Total Tailpipe CO2                1,752,927       2,094,857         269,051         269,051
     Emissions..................................
Section 490.513--Calculation of System                    48,703          58,061           7,475           7,457
 Performance Measures...........................
    Calculate % Change in Tailpipe CO2 Emissions          48,703          58,061           7,475           7,457
     the NHS Compared to the Calendar Year 2017
     Level......................................
                                                 ---------------------------------------------------------------
        Total Cost of Final Rule................      10,891,892      12,805,709       1,671,758       1,644,687
----------------------------------------------------------------------------------------------------------------
* Results presented in 2014 dollars for consistency with GHG Repeal NPRM RIA.

    The effects potentially caused by the national GHG performance 
measure established in the PM3 Final Rule were administrative 
activities (such as holding meetings and the use of energy to operate 
offices) that State DOTs and MPOs would undertake to establish targets, 
calculate their progress toward their selected targets, report to FHWA, 
and determine a plan of action to make progress toward their selected 
targets if they failed to make significant progress during a 
performance period.\101\ Those effects serve as the baseline in this 
analysis. It is foreseeable that the decision to repeal the GHG measure 
in this rulemaking will cause (1) State DOTs and MPOs that have not yet 
set a CO2 emissions target to terminate their 23 U.S.C. 
150(d) target-setting activities for the GHG measure; and (2) State 
DOTs and MPOs that have selected a CO2 emissions target to 
terminate activities related to tracking their performance and progress 
towards a 23 U.S.C. 150(d) CO2 emissions target. The repeal 
also will relieve State DOTs and MPOs of all future obligations with 
respect to this national CO2 emissions measure, including 
the obligation to calculate and report on their progress and to 
identify an action plan if they do not make significant progress toward 
their CO2 emissions target. The effects will be to reduce or 
eliminate the administrative activities associated with implementing 
the GHG measure.
---------------------------------------------------------------------------

    \101\ 23 CFR 490.109.
---------------------------------------------------------------------------

    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 forgone benefits. 
These changes are not anticipated to adversely affect, in any material 
way, any sector of the economy. In addition, these 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.
    We 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

    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. In addition, the definition of ``Federal mandate'' in 
the Unfunded Mandates Reform Act

[[Page 24935]]

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 FAHP permits this type of flexibility.

D. Executive Order 13132 (Federalism Assessment)

    FHWA has analyzed this action in accordance with the principles and 
criteria contained in E.O. 13132. FHWA has determined that this action 
does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment. 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. FHWA has analyzed 
this action under the PRA and has determined that this rulemaking would 
reduce PRA burdens associated with this measure.

G. National Environmental Policy Act

    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 significant effect on the quality of the environment and meets 
the criteria for the categorical exclusion at 23 CFR 
771.117(c)(20).\102\
---------------------------------------------------------------------------

    \102\ This rulemaking also qualifies for a categorical exclusion 
under 23 CFR 771.117(c)(1) (activities which do not involve or lead 
directly to construction).
---------------------------------------------------------------------------

    The nature and potential effects of the GHG measure are described 
in detail in Section V.F.5. of this document. With respect to this 
rulemaking, changes in CO2 emissions are not a direct or 
indirect effect of the repeal of the GHG measure because there is no 
reasonably close causal connection between the repeal and actions taken 
by the State DOTs and MPOs to change CO2 emissions levels. 
Any potential change in CO2 emissions levels associated with 
the NHS would be the result of independent actions taken (or not taken) 
by State DOTs and MPOs. These intervening State DOT and MPO actions are 
not reasonably foreseeable effects \103\ of the GHG measure because the 
measure does not require those entities to take steps to reduce 
CO2 emissions, and the GHG measure does not prescribe any 
method for State DOTs and MPOs to take such steps. The absence of a 
sufficiently close causal connection, and reasonable foreseeability, 
also means that NEPA does not require FHWA to consider CO2 
emissions effects as a cumulative impact.
---------------------------------------------------------------------------

    \103\ Courts have interpreted ``reasonably foreseeable'' as 
meaning that the likelihood that the effects will occur is high 
enough that a person of ``ordinary prudence'' would consider the 
effects when making decisions.
---------------------------------------------------------------------------

    FHWA's conclusion that the GHG measure would not be a legal cause 
of changes in CO2 emissions levels, and thus would not 
produce effects that NEPA requires FHWA to analyze in this rulemaking, 
is further supported by Clean Air Act regulations promulgated by the 
EPA. In 40 CFR 93.152, EPA adopted a ``but for'' approach, defining 
direct and indirect emissions caused by a Federal action as emissions 
that would not otherwise occur in the absence of Federal action. As 
described above, a decision to leave the GHG measure in effect would 
not result in the reduction of CO2 emissions. For the same 
reasons, the decision to repeal the measure does not result in an 
increase in CO2 emissions.
    Pursuant to 23 CFR 771.117(c)(20), this repeal qualifies as 
categorically excluded from preparation of an EIS or environmental 
assessment under NEPA. FHWA concluded that the repeal of the GHG 
measure will not involve reasonably foreseeable significant 
environmental impacts. The GHG measure imposed no limits or controls on 
CO2 emissions, had no legal power to force changes in 
CO2 emissions, and left target-setting entirely to the 
discretion of State DOTs and MPOs. The repeal of the GHG measure is not 
a legally relevant cause of any change, or lack of change, in 
CO2 emissions levels or the direct, indirect, or cumulative 
impacts potentially related to those emissions. This is true regardless 
of the geographic impact area considered. With respect to other types 
of potential environmental impacts from the repeal of the GHG measure, 
they are minor and consistent with the type of impacts related to 
administrative activities, such as analyzing data and reporting on the 
results (e.g., use of energy to operate computers, telephones, and 
office space). Such activities fit squarely within the boundaries of 23 
CFR 771.117(c)(20).
    In making the determination that the repeal of the GHG measure 
qualifies for a categorical exclusion, FHWA considered whether the 
proposed regulatory action involves unusual circumstances. 23 CFR 
771.117(b). Given FHWA's determination that the GHG measure is not 
reasonably causally connected to CO2 emissions levels, the 
analysis of unusual circumstances in this instance focuses on whether 
there are unusual circumstances relating to other types of potential 
environmental effects. FHWA found none of the environmental impacts 
from implementing, not implementing, or ceasing current implementation 
of the GHG measure rose to the level of significance under NEPA (23 CFR 
771.117(b)(1)). FHWA found no substantial controversy exists over the 
size, nature, or effect of potential environmental impacts from the 
States DOTs and MPOs not carrying out the administrative activities 
associated with CO2 emissions target-setting or reporting on 
their performance with regard to those targets (23 CFR 771.117(b)(2)). 
There are no anticipated impacts from those administrative activities, 
or lack thereof, on properties protected by the NHPA or section 4(f) 
(23 U.S.C. 138) (23 CFR 771.117(b)(3)). Finally, FHWA found no 
inconsistencies with other laws, requirements, or determinations within 
the meaning of 23 CFR 771.117(b)(4).

H. Executive Order 12630 (Taking of Private Property)

    FHWA has analyzed this action under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights. 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. FHWA certifies that 
this action would not cause an environmental risk

[[Page 24936]]

to health or safety that might disproportionately affect children.

K. Executive Order 13175 (Tribal Consultation)

    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. Regulation Identifier Number

    A 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.

List of Subjects in 23 CFR Part 490

    Bridges, Highway safety, Highways and roads, Reporting and 
recordkeeping requirements.

    Issued in Washington, DC, on May 21, 2018 under authority 
delegated in 49 CFR 1.85:
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
    In consideration of the foregoing, FHWA amends 23 CFR part 490 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.  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 as follows:
0
a. By removing the word ``three'' and adding in its place ``two'' in 
the introductory text; and
0
b. 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. 2018-11652 Filed 5-30-18; 8:45 am]
 BILLING CODE 4910-22-P