National Performance Management Measures; Assessing Performance of the National Highway System, Greenhouse Gas Emissions Measure, 85364-85394 [2023-26019]
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23 CFR Part 490
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Federal Register’s website at
www.federalregister.gov and the
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[FHWA Docket No. FHWA–2021–0004]
I. Executive Summary
RIN 2125–AF99
The FHWA is amending its
regulations on national performance
management measures at 23 CFR part
490 (part 490) and establishing a
method for the measurement and
reporting of GHG emissions. The
environmental sustainability, and
specifically the carbon footprint, of the
transportation system is a critically
important attribute that State DOTs can
and should use to assess the
performance of the Interstate and nonInterstate NHS. Section 150(c) of Title
23, U.S.C., clearly directs FHWA to
establish performance measures that the
State DOTs can use to assess
performance of the Interstate and nonInterstate NHS. Although the statute
does not define the meaning of
‘‘performance’’ of the Interstate and
non-Interstate NHS under 23 U.S.C.
150(c), Congress identified national
goals under 23 U.S.C. 150(b), which
include environmental sustainability.
See 23 U.S.C. 150(b)(6). To support the
environmental sustainability national
goal, FHWA is interpreting
‘‘performance’’ of the Interstate System
and non-Interstate NHS under 23 U.S.C.
150(c) to include the system’s
environmental performance. This
definition of ‘‘performance’’ is also
consistent with other Title 23, U.S.C.
provisions, such as 23 U.S.C. 119,
discussed later in this preamble.
The GHG measure established in this
rule is the same as the measure
proposed in the NPRM, which is the
percent change in on-road tailpipe CO2
emissions on the NHS relative to the
reference year. The FHWA is finalizing
a reference year of 2022 as part of this
rule. The measure is part of the National
Highway Performance Program (NHPP)
performance measures that FHWA
established in part 490 through prior
rulemakings. The GHG measure requires
State DOTs and MPOs that have NHS
mileage within their State geographic
boundaries and metropolitan planning
area boundaries, respectively, to
establish declining targets for reducing
CO2 emissions 1 generated by on-road
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
National Performance Management
Measures; Assessing Performance of
the National Highway System,
Greenhouse Gas Emissions Measure
Federal Highway
Administration (FHWA), U.S.
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
This final rule amends
FHWA’s regulations governing national
performance management measures and
establishes a method for the
measurement and reporting of
greenhouse gas (GHG) emissions
associated with transportation (GHG
measure). It requires State departments
of transportation (State DOT) and
metropolitan planning organizations
(MPO) to establish declining carbon
dioxide (CO2) targets for the GHG
measure and report on progress toward
the achievement of those targets. The
rule does not mandate how low targets
must be. Rather, State DOTs and MPOs
have flexibility to set targets that are
appropriate for their communities and
that work for their respective climate
change and other policy priorities, as
long as the targets aim to reduce
emissions over time. The FHWA will
assess whether State DOTs have made
significant progress toward achieving
their targets.
DATES: This final rule is effective
January 8, 2024.
FOR FURTHER INFORMATION CONTACT: Mr.
John G. Davies, Office of Natural
Environment, (202) 366–6039, or via
email at JohnG.Davies@dot.gov, or Mr.
Lev Gabrilovich, Office of the Chief
Counsel, (202) 366–3813, or via email at
Lev.Gabrilovich@dot.gov. Office hours
are from 8 a.m. to 4:30 p.m., E.T.,
Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Electronic Access and Filing
This document, the notice of
proposed rulemaking (NPRM), all
comments received, and all supporting
material may be viewed online at
www.regulations.gov using the docket
number listed above. Electronic retrieval
help and guidelines are available on the
website. It is available 24 hours each
day, 365 days each year. An electronic
copy of this document may also be
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1 The proposed GHG measure specifically applies
to CO2 emissions, which is the predominant
human-produced GHG. CO2 is also the predominant
GHG from on-road mobile sources, accounting for
approximately 97 percent of total GHG emissions
weighted by global warming potential in 2021. See
U.S. Environmental Protection Agency, 2023:
Inventory of U.S. Greenhouse Gas Emissions and
Sinks: 1990–2021, table 2–13, available at https://
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mobile sources. The regulation uses
‘‘NHS’’ to mean the mainline highways
of the NHS, consistent with the
applicability of the measure described
in § 490.503(a)(2). Consistent with the
Transportation Performance
Management (TPM) framework, State
DOTs will establish 2- and 4-year
statewide emissions reduction targets,
and MPOs will establish 4-year
emissions reduction targets for their
metropolitan planning areas. In
addition, the rule will require certain
MPOs serving UZAs with populations of
50,000 or more to establish additional
joint targets. Specifically, when the
metropolitan planning area boundaries
of two or more MPOs overlap any
portion of an UZA, and the UZA
contains NHS mileage, those MPOs will
establish joint 4-year targets for that
UZA. This joint target will be
established in addition to each MPO’s
target for their metropolitan planning
area. State DOTs and MPOs have the
flexibility to set targets that work for
their respective climate change policies
and other policy priorities, so long as
they are declining. The State DOTs and
MPOs are also required to report on
their progress in meeting the targets.
The final rule applies to the 50 States,
the District of Columbia, and Puerto
Rico, consistent with the definition of
the term ‘‘State’’ in 23 U.S.C. 101(a). To
realize the benefits of a GHG measure as
soon as is practicable, State DOTs will
first establish targets and report those
targets by February 1, 2024, and
subsequent targets will be established
and reported no later than October 1,
2026, with biennial reports thereafter.
The GHG measure will help the
United States (U.S.) confront the
increasingly urgent climate crisis. The
Sixth Assessment Report by the
Intergovernmental Panel on Climate
Change (IPCC), released on August 7,
2021, confirms that human activities are
increasing GHG concentrations that
have warmed the atmosphere, ocean,
and land at a rate that is unprecedented
in at least the last 2000 years.2 Changes
in extreme events, along with
anticipated future increases in the
occurrence and severity of these events
because of climate change, threaten the
reliability, safety, and efficiency of the
transportation system and the people
who rely on it to move themselves and
transport goods. At the same time,
www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2021.
2 See IPCC, 2021: Summary for Policymakers. In:
Climate Change 2021: The Physical Science Basis.
Contribution of Working Group I to the Sixth
Assessment Report of the Intergovernmental Panel
on Climate Change, available at https://
www.ipcc.ch/report/ar6/wg1/#SPM.
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transportation contributes significantly
to the causes of climate change,3
representing the largest source of U.S.
CO2 emissions, and each additional ton
of CO2 produced by the combustion of
fossil fuels contributes to future
warming and other climate impacts.
The GHG measure aligns with
Executive Orders (E.O.) described later
in this preamble and supports the U.S.
target of reducing GHG emissions 50–52
percent below 2005 levels in 2030, on
course to reaching net-zero emissions
economywide no later than 2050.4 As a
matter of transportation policy, DOT
considers the GHG measure essential to
improve transportation sector
performance and demonstrate Federal
leadership in the assessment and
disclosure of climate pollution. The first
step toward reducing GHG emissions
involves inventorying and monitoring
those emissions. By providing
consistent and timely information about
on-road mobile source emissions on the
NHS, the GHG measure has the
potential to increase public awareness
of GHG emissions trends, improve the
transparency of transportation
decisions, enhance decisionmaking at
all levels of government, and support
better informed planning choices to
reduce GHG emissions or inform
tradeoffs among competing policy
choices.
Furthermore, the rule responds to the
direction in sections 1 and 2 of E.O.
13990 (86 FR 7037) that Federal
agencies review any regulations issued
or similar actions taken between January
20, 2017, and January 20, 2021, and,
consistent with applicable law, take
steps to address any such actions that
3 Jacobs, J.M., M. Culp, L. Cattaneo, P.
Chinowsky, A. Choate, S. DesRoches, S. Douglass,
and R. Miller, 2018: Transportation. In Impacts,
Risks, and Adaptation in the United States: Fourth
National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E.
Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 479–511. doi:
10.7930/NCA4.2018.CH12.
4 White House Fact Sheet: The Biden-Harris
Electric Vehicle Charging Action Plan (December
13, 2021), available at https://www.whitehouse.gov/
briefing-room/statements-releases/2021/12/13/factsheet-the-biden-harris-electric-vehicle-chargingaction-plan/; White House Fact Sheet: President
Biden Sets 2030 Greenhouse Gas Pollution
Reduction Target Aimed at Creating Good-Paying
Union Jobs and Securing U.S. Leadership on Clean
Energy Technologies (Apr. 22, 2021), available at
https://www.whitehouse.gov/briefing-room/
statements-releases/2021/04/22/fact-sheetpresident-biden-sets-2030-greenhouse-gaspollution-reduction-target-aimed-at-creating-goodpaying-union-jobs-and-securing-u-s-leadership-onclean-energy-technologies/; White House Fact
Sheet: President Biden’s Leaders Summit on
Climate (Apr. 23, 2021), available at https://
www.whitehouse.gov/briefing-room/statementsreleases/2021/04/23/fact-sheet-president-bidensleaders-summit-on-climate/.
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conflict with the national objectives set
forth in the order to address climate
change. The FHWA reviewed its 2018
final rule (83 FR 24920, May 31, 2018)
that repealed a GHG measure FHWA
adopted in 2017 (2017 GHG measure)
and determined that the repeal conflicts
with those objectives.
After reviewing the 2018 final rule,
FHWA has reconsidered its position
that the Agency’s authority to
promulgate the 2017 final rule reflected
a ‘‘strained reading of the statutory
language in section 150.’’ 83 FR at
24923. The FHWA now concludes, as it
did when establishing a GHG measure
in the 2017 PM3 final rule, that it has
the legal authority to establish the GHG
measure under 23 U.S.C. 150.
Specifically, FHWA is clearly directed
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V)
to establish measures for States to use to
assess the performance of the Interstate
System and non-Interstate NHS.
Although the statute does not define
performance, 23 U.S.C. 150(b)(6)
identifies environmental sustainability
as a national goal of the Federal-aid
highway program, and Congress, in 23
U.S.C. 150(a), has declared that
performance management, including the
use of performance measures, is key to
meeting the national goals of section
150(b). To address the national goal of
environmental sustainability, FHWA
has determined that the performance of
the Interstate System and the NHS
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V)
logically includes environmental
performance. The GHG measure is also
appropriate in light of other provisions
of Title 23, U.S.C., notably the NHPP
provisions at 23 U.S.C. 119, which
include requirements for State asset
management plans that support progress
toward the achievement of the national
goals identified in 23 U.S.C. 150(b),
including the national goal to enhance
the performance of the transportation
system while protecting and enhancing
the natural environment at 23 U.S.C.
150(b)(6), and include a risk
management analysis that specifically
addresses extreme weather and
resilience. See 23 U.S.C. 119(e)(2) and
(e)(4)(D). This reconsideration is
discussed in detail in section III.B in the
NPRM, see 87 FR 42407–42410, and
section III below.
The regulatory impact analysis (RIA)
prepared pursuant to E.O. 12866, as
amended by E.O. 14094, is available in
the rulemaking docket (Docket No.
FHWA–2021–0004). The RIA estimates
the costs associated with establishing
the GHG measure, derived from the
costs of implementing the GHG measure
for each component of the rule that may
involve costs. To estimate the costs,
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FHWA assessed the level of effort that
would be needed to comply with each
applicable section in part 490 with
respect to the GHG measure, including
labor hours by labor category, over a 10year study period (2023–32). Total costs
over this period are estimated to be
$10.8 million, discounted at 7 percent,
and $12.7 million, discounted at 3
percent. The RIA also discusses
anticipated benefits of the rule
qualitatively because the anticipated
quantitative benefits are difficult to
forecast and monetize. These benefits
include: (1) more-informed decisionmaking through the creation of
complete, consistent, and timely
information on GHG emissions; (2)
greater accountability through the
establishment of a more highly visible
and transparent performance reporting
system; and (3) improved progress
toward achieving national
transportation goals by including
declining targets for CO2 emissions on
the NHS in the set of existing
performance requirements designed to
help the Federal-aid highway program
support balanced performance outcomes
and national climate policies.
II. Background and Regulatory History
The 2012 Moving Ahead for Progress
in the 21st Century Act (MAP–21) (Pub.
L. 112–141) and the 2015 Fixing
America’s Surface Transportation
(FAST Act) (Pub. L. 114–94)
transformed the Federal-aid highway
program by establishing performance
management requirements and tasking
FHWA with carrying them out. To
implement this program, FHWA
established an organizational unit with
dedicated full-time staff to coordinate
with program staff from each of the
performance areas to design and
establish an approach to effectively
implement the Title 23 performance
provisions. The FHWA has technical
and policy experts on staff to assist State
DOTs and MPOs with implementing
performance management and oversee
program requirements. The FHWA
implemented this performance
management network through multiple
rulemakings, which established in 23
CFR part 490 the performance measures
and requirements for target
establishment, reporting on progress,
and how determinations would be made
on whether State DOTs have made
significant progress toward applicable
targets.
The TPM requirements provide
increased accountability and
transparency, and facilitate efficient
investment of Federal transportation
funds through a focus on performance
outcomes for the seven national
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transportation goals concerning safety,
infrastructure condition, congestion
reduction, system reliability, freight
movement and economic vitality,
environmental sustainability, and
reduced project delivery delays. See 23
U.S.C. 150(b). Through performance
management, recipients of Federal-aid
highway funds make transportation
investments to achieve short-term
performance targets and make progress
toward the seven statutory national
transportation goals. Performance
management allows FHWA to more
effectively evaluate and report on the
Nation’s surface transportation
conditions and performance.
Prior to MAP–21, there were no
explicit statutory requirements for State
DOTs or MPOs to demonstrate how
their transportation programs supported
national performance outcomes, making
it difficult to assess the effectiveness of
the Federal-aid highway program. The
TPM requirements established in MAP–
21 changed this paradigm by requiring
State DOTs and MPOs to measure
condition or performance, establish
targets, assess progress toward targets,
and report on condition or performance
in a nationally consistent manner for the
first time. See 23 U.S.C. 150(e); 23 CFR
490.107. As previously noted, FHWA
conducted several rulemakings
implementing the performance
management framework. Most relevant
to this proposed rule are three related
national performance management
measure rulemakings in which FHWA
established various measures for State
DOTs and MPOs to use to assess
performance, found at 23 CFR part 490.
The first rulemaking focused on Safety
Performance Management (PM1), and a
final rule published on March 15, 2016
(81 FR 13882), established performance
measures for State DOTs to use to carry
out the Highway Safety Improvement
Program (HSIP). The second rulemaking
on Infrastructure Performance
Management (PM2) resulted in a final
rule published on January 18, 2017 (82
FR 5886), that established performance
measures for assessing pavement
condition and bridge condition for the
NHPP. The third rulemaking, System
Performance Management (PM3),
established measures for State DOTs
and MPOs to use to assess the
performance of the Interstate and nonInterstate NHS for the purpose of
carrying 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 Congestion
Mitigation and Air Quality (CMAQ)
Program. The PM3 final rule was
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published on January 18, 2017 (82 FR
5970). The PM3 rule addressed a broad
set of performance issues and some of
the national transportation goals, such
as environmental sustainability, that
were not addressed in the earlier
rulemakings focused solely on safety
and infrastructure condition. In the
preamble to the PM3 proposed rule,
published on April 22, 2016 (81 FR
23806), FHWA requested public
comment on whether to establish a CO2
emissions measure in the final rule and,
if so, how to do so. The FHWA
acknowledged the contribution of onroad sources to over 80 percent of U.S.
transportation sector GHG emissions,
and the historic Paris Agreement in
which the U.S. and more than 190 other
countries agreed in December 2015 to
reduce GHG emissions, with the goal of
limiting global temperature rise to less
than 2 degrees Celsius above preindustrial levels by 2050. The FHWA
recognized that achieving U.S. climate
goals would require significant GHG
reductions from on-road transportation
sources. See 81 FR 23830. Against this
backdrop, FHWA stated that it was
considering how GHG emissions could
be estimated and used to inform
planning and programming decisions to
reduce long term emissions. The FHWA
sought comment on the potential
establishment and effectiveness of a
GHG emissions measure as a planning,
programming, and reporting tool, and
FHWA requested feedback on specific
considerations related to the design of
such a measure. See 82 FR 23831.
In the PM3 final rule, after
considering extensive public comments
on whether and how FHWA should
establish such a measure, FHWA
established a GHG emissions
performance measure to measure
environmental performance in
accordance with 23 U.S.C. 150(c)(3).
The measure involved the percent
change in CO2 emissions from the
reference year 2017, generated by onroad mobile sources on the NHS. After
a change in Administration, FHWA
repealed the 2017 GHG measure before
the respective due dates for target
setting or reporting. On October 5, 2017
(82 FR 46427), FHWA proposed to
repeal the 2017 GHG measure. The
FHWA requested public comment on
whether to retain or revise the 2017
GHG measure. See 82 FR 46430. In light
of policy direction at the time to review
existing regulations to determine
whether changes would be appropriate
to eliminate duplicative regulations,
reduce costs, and streamline regulatory
processes, and after considering public
comments received, on May 31, 2018
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(83 FR 24920), FHWA repealed the GHG
measure, effective on July 2, 2018. The
FHWA identified three main reasons for
the repeal: (1) reconsideration of the
underlying legal authority; (2) the cost
of the GHG measure in relation to the
lack of demonstrated benefits; and (3)
potential duplication of information
produced by the GHG measure and
information produced by other
initiatives related to measuring CO2
emissions.
On July 15, 2022 (87 FR 42401),
FHWA published a NPRM to establish
a GHG measure. After reconsidering the
arguments for the 2018 final rule and
finding them lacking, FHWA proposed
to require State DOTs and MPOs that
have NHS mileage within their State
geographic boundaries and metropolitan
planning area boundaries, respectively,
to establish declining targets for
reducing CO2 emissions generated by
on-road mobile sources, that align with
the Administration’s target of net-zero
emissions, economy-wide, by 2050,
accordance with the national policy
established under section 1 of E.O.
13990, ‘‘Protecting Public Health and
the Environment and Restoring Science
to Tackle the Climate Crisis’’, section
201 of E.O. 14008, ‘‘Tackling the
Climate Crisis at Home and Abroad’’,
and at the Leaders Summit on Climate.
Under the proposed rule, State DOTs
would establish 2- and 4-year statewide
emissions reduction targets, and MPOs
would establish 4-year emissions
reduction targets for their metropolitan
planning areas. In addition, FHWA
proposed to require MPOs serving select
UZA to establish additional joint targets.
The term ‘‘urbanized area’’ means a
geographic area with a population of
50,000 or more, as designated by the
Bureau of the Census. See 23 U.S.C.
101(a)(36); 23 CFR 450.104. The NPRM
specified that when the metropolitan
planning area boundaries of two or more
MPOs overlap any portion of the same
UZA, and the UZA contains NHS
mileage, those MPOs would establish
joint 4-year targets for that UZA. This
joint target would be established in
addition to each MPO’s target for their
metropolitan planning area. Further,
FHWA proposed to require State DOTs
and MPOs to set declining targets for
reducing tailpipe CO2 emissions on the
NHS. Under the NPRM, State DOTs and
MPOs would have the flexibility to set
targets that work for their respective
climate change policies and other policy
priorities, so long as they aligned with
the goal of net-zero GHG emissions,
economy-wide, by 2050. The FHWA
also proposed to require State DOTs and
MPOs to report on their progress in
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meeting the targets. The FHWA
identified that the proposed rule would
apply to the 50 States, the District of
Columbia, and Puerto Rico, consistent
with the definition of the term ‘‘State’’
in 23 U.S.C. 101(a). The FHWA now
finalizes the proposed measure with
some modifications.
III. Statutory Authority for
Performance Management and the GHG
Measure
The FHWA is establishing the GHG
emissions performance measure under
23 U.S.C. 150(c)(3), which calls for
FHWA to establish performance
measures that the States can use to
assess performance of the Interstate and
non-Interstate NHS for the purpose of
carrying out the NHPP under 23 U.S.C.
119. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)–
(V). The FHWA received many
comments both in support and in
opposition to the Agency’s authority to
promulgate this rulemaking. After
considering these comments, FHWA
reaffirms that Congress provided FHWA
with clear authority to develop
performance measures to help State
DOTs and MPOs address significant and
long-term issues impacting the
performance of the transportation
system. These comments and FHWA’s
response are further discussed in
Section VII of this preamble.
The FHWA has determined that
measuring environmental performance
of the Interstate and non-Interstate NHS
is vital to meeting the Agency’s
obligations under 23 U.S.C. 150. As
discussed in the NPRM, Congress
charged FHWA with establishing
performance measures, but did not
define the term ‘‘performance,’’ as used
in 23 U.S.C. 150(c)(3). Thus, FHWA
must interpret this term in the context
of the statute, FHWA’s statutory
authority in Title 23, U.S.C., to
administer the Federal-aid highway
program, and congressional intent.
Accordingly, FHWA is interpreting
‘‘performance’’ of the Interstate System
and non-Interstate NHS under 23 U.S.C.
150(c) to include the system’s
environmental performance, consistent
with the program’s statutorily mandated
goal to enhance the performance of the
transportation system while protecting
and enhancing the natural environment.
See 23 U.S.C. 150(b). As described
further in this preamble, FHWA
interprets this national goal to mean that
the Agency should take reasonable steps
to assist State DOTs and MPOs measure
and evaluate the GHG emissions on the
Interstate and non-Interstate NHS. The
FHWA’s interpretation of performance
under 23 U.S.C. 150(c) is consistent
with 23 U.S.C. 119(e), which calls for
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State DOTs to develop a performancedriven asset management plan that
would ‘‘support progress toward the
achievement of the national goals
identified in section 150(b).’’ 23 U.S.C.
119(e)(2). In addition, 23 U.S.C. 119(b)
provides the purposes of the NHPP,
which include supporting the condition
and performance of the NHS, supporting
construction of new facilities on the
NHS, ensuring investments of Federalaid funds in highway construction are
directed to support progress toward the
achievement of performance targets
established in a State asset management
plan, and supporting activities to
increase the resiliency of the NHS to
mitigate the cost of damages from sea
level rise, extreme weather events,
flooding, wildfires, or other natural
disasters. Assessing environmental
performance provides support for
activities to increase the resiliency of
the NHS to mitigate the cost of damages
from sea level rise, extreme weather
events, flooding, wildfires, or other
natural disasters.
Importantly, FHWA does not believe
its authority in this area is unlimited.
Since 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V)
refers only to the performance of the
Interstate System and the non-Interstate
NHS, FHWA only has authority to apply
this measure to the Interstate System
and the non-Interstate NHS. In addition,
FHWA is only requiring that State DOTs
and MPOs establish declining targets for
GHG emissions on the NHS. The FHWA
is neither requiring any specific targets
nor mandating any penalties for failing
to achieve these targets. The measure
and the associated targets are intended
only to help State DOTs and MPOs
consistently and transparently monitor
the current performance of the NHS,
and plan transportation projects in a
way that protects the long-term
performance of the NHS.
As described in the NPRM, see 87 FR
42408, Congress specifically directed
FHWA to establish measures for States
to use to assess the performance of the
Interstate System and the non-Interstate
NHS. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)–
(V). Although Congress did not define
the meaning of performance under this
provision, the statute identifies seven
national goals to inform performance
management. Environmental
sustainability is one of the specifically
identified goals, which is defined as
‘‘enhanc[ing] the performance of the
transportation system while protecting
and enhancing the natural
environment.’’ 23 U.S.C. 150(b)(6).
Congress directed FHWA to determine
the nature and scope of the specific
performance measures that will fulfill
the statutory mandate in 23 U.S.C.
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150(c), and has not clarified this
authority even after FHWA finalized the
three national performance management
measure rulemakings described earlier.
The FHWA notes that 23 U.S.C.
150(c)(2)(C) limits performance
measures to those described in 23 U.S.C.
150(c). When FHWA repealed the GHG
performance measure, the Agency took
an unduly narrow view and determined
that since 23 U.S.C. 150(c)(2)(C) directs
FHWA to limit performance measures
only to those described in 23 U.S.C.
150(c), FHWA’s previous interpretation
that performance of the Interstate
System and the National Highway
System under 23 U.S.C.
150(c)(3)(A)(ii)(IV)–(V) includes
environmental performance was overly
broad. As FHWA described in the
NPRM, see 87 FR 42408, this provision
limits FHWA’s authority to establish
measures States use to assess
performance only to the Interstate
System and the non-Interstate NHS.
However, the provision does not
otherwise limit the meaning of
‘‘performance,’’ and upon
reconsideration, FHWA has determined
that its original interpretation of the
scope of its section 150(c) authority
from the 2017 final rule is the better
read of the statute. Specifically, in light
of the explicit statutory goal of
environmental sustainability, the
significant risks that climate changedriven extreme weather pose to the
condition and performance of NHS, and
FHWA’s unquestioned authority to
establish performance measures, FHWA
believes that it is appropriate to
interpret the meaning of performance of
the Interstate System and the nonInterstate NHS under 23 U.S.C.
150(c)(3)(A)(ii)(IV)–(V) to include
environmental performance.
As described in the NPRM and
previously discussed in this preamble,
this GHG measure is consistent with
other parts of Title 23, U.S.C., notably
23 U.S.C. 119. Section 119(d)(1) of Title
23, U.S.C., establishes eligibility criteria
for using funds apportioned to a State
for carrying out the NHPP, but does not
set forth all relevant considerations for
carrying out the program. For example,
23 U.S.C. 119(d)(2) identifies purposes
for eligible projects, including
development and implementation of a
State DOT’s asset management plan for
the NHS under 23 U.S.C. 119(e), and
environmental mitigation efforts related
to projects funded under 23 U.S.C.
119(g). Section 119(e) calls for a
performance-driven asset management
plan that would ‘‘support progress
toward the achievement of the national
goals identified in Section 150(b)’’,
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which includes the environmental
sustainability national goal under 23
U.S.C. 150(b)(6). Risk-based asset
management planning under 23 U.S.C.
119(e) includes consideration of lifecycle costs and risk management,
financial planning, and investment
strategies. Rapidly changing climate and
increased weather extremes because of
fossil fuel combustion directly impact
the condition and performance of
transportation facilities because of
increases in heavy precipitation, coastal
flooding, heat, wildfires, and other
extreme events. Extreme events are
already leading to transportation
challenges, inducing societal and
economic consequences, which will
only increase in the years ahead. The
number of billion-dollar climate disaster
events has been much higher over the
last 5 years than the annual average over
the last 30 years.5 Low-income and
vulnerable populations are
disproportionately affected by the
impacts of climate change.6 These
impacts are not attributable to any
single action, but are exacerbated by a
series of actions, including actions taken
under the Federal-aid highway program.
Recognizing the need to plan for and
consider the risks of extreme weather,
Congress amended the requirements for
States’ asset management plans under
23 U.S.C. 119(e) to include lifecycle cost
and risk management analyses that
specifically consider extreme weather
and resilience. See 23 U.S.C.
119(e)(4)(D) (as amended by Pub. L.
117–58, sec. 11105). Measuring
environmental performance through the
GHG performance measure will assist
States in considering CO2 emissions
from transportation in the performance
management framework, including the
impact of CO2 emissions on the
medium- and long-term conditions of
transportation assets arising from the
risks of, and costs related to extreme
weather, and help frame responses to
the growing climate crisis. Therefore,
the GHG performance measure is
appropriate in light of 23 U.S.C. 119,
and FHWA has determined that the
Agency’s interpretation of
5 NOAA National Centers for Environmental
Information (NCEI), 2022: U.S. Billion-Dollar
Weather and Climate Disasters, available at https://
www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw7w73.
6 Ebi, K.L., J.M. Balbus, G. Luber, A. Bole, A.
Crimmins, G. Glass, S. Saha, M.M. Shimamoto, J.
Trtanj, and J.L. White-Newsome, 2018: Human
Health. In Impacts, Risks, and Adaptation in the
United States: Fourth National Climate Assessment,
Volume II [Reidmiller, D.R., C.W. Avery, D.R.
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global
Change Research Program, Washington, DC, USA,
pp. 539–571. doi: 10.7930/NCA4.2018.CH14.
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‘‘performance’’ to include
‘‘environmental performance’’ is
consistent with 23 U.S.C. 119.
As FHWA noted in the NPRM, several
other provisions in Title 23, U.S.C.,
support FHWA’s authority for its
proposal to address GHG emissions in
this rulemaking. To help conceptualize
FHWA’s framework for analyzing its
authority under Title 23, U.S.C., this
preamble restates these provisions as
follows:
• In Section 101(b)(3)(G), Congress
declared that ‘‘transportation should
play a significant role in promoting
economic growth, improving the
environment, and sustaining the quality
of life.’’
• Section 134(a)(1) states as a matter
of transportation planning policy that
‘‘[i]t is in the national interest to
encourage and promote the safe and
efficient management, operation, and
development of surface transportation
systems . . . while minimizing
transportation-related fuel consumption
and air pollution through metropolitan
and statewide transportation planning
processes identified in this chapter.’’
• Section 134(c)(1) requires MPOs to
develop long range plans and
transportation improvement programs to
achieve the objectives in 23 U.S.C.
134(a)(1) through a performance-driven,
outcome-based approach to planning.
• Section 134(h) defines the scope of
the metropolitan planning process.
Paragraphs (h)(1)(E) and (I),
respectively, require consideration of
projects and strategies that will ‘‘. . .
protect and enhance the environment,
promote energy conservation, improve
the quality of life . . .’’ and ‘‘. . .
improve the resiliency and reliability of
the transportation system . . .’’.
• Section 135(d)(1) defines the scope
of the statewide planning process.
Paragraphs (d)(1)(E) and (I),
respectively, require consideration of
projects, strategies, and services that
will ‘‘. . . protect and enhance the
environment, promote energy
conservation, improve the quality of life
. . .’’, and ‘‘. . . improve the resiliency
and reliability of the transportation
system . . .’’.
• Section 135(d)(2) requires the
statewide transportation planning
process to ‘‘. . . provide for the
establishment and use of a performancebased approach to transportation
decision-making to support the national
goals described in Section 150(b) of this
title . . .’’.
The FHWA reaffirms that these Title
23, U.S.C., provisions make it clear that
assessing infrastructure performance
under 23 U.S.C. 150(c)(3) properly
encompasses the assessment of
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environmental performance, including
GHG emissions and other climaterelated matters. As noted in FHWA’s
May 2018 repeal of the 2017 GHG
measure, nothing in the statute
specifically requires FHWA to adopt a
GHG emissions measure. However,
consistent with the statutory provisions
cited above, no provision of law
prohibits FHWA from adopting a GHG
emissions measure, despite ample
opportunity for Congress to do so.
On November 15, 2021, President
Biden signed the Infrastructure
Investment and Jobs Act (IIJA) (Pub. L.
117–58, also known as the ‘‘Bipartisan
Infrastructure Law’’) (BIL) into law. The
BIL does not explicitly direct FHWA to
assess environmental performance.
However, Congress set forth new
programs and eligibilities under BIL that
State DOTs and MPOs will use to
address GHG emissions, and
environmental performance will be
central to proper administration of the
programs. Thus, this GHG measure will
help State DOTs and MPOs effectively
use these new transportation dollars.
For example, BIL authorized a new
Carbon Reduction Program (CRP)
codified at 23 U.S.C. 175. The CRP
provides billions of dollars for Fiscal
Years 2022–2026 for use on a range of
projects that can demonstrate reductions
in transportation emissions over the
project’s lifecycle. The CRP also
requires State DOTs to develop a carbon
reduction strategy in consultation with
any MPO designated within the State to
support efforts to reduce transportation
emissions and identify projects and
strategies to reduce these emissions. See
23 U.S.C. 175(d). Similarly, BIL
included new language regarding
national electric vehicle charging and
hydrogen, propane, and natural gas
fueling corridors to support changes in
the transportation sector that help
achieve a reduction in GHG emissions.
See 23 U.S.C. 151. These programs are
two examples of Congress’ express focus
on using transportation programs to
reduce GHG emissions from
transportation sources. The FHWA’s
GHG measure will help State DOTs and
MPOs track the effectiveness of their
transportation investments in projects
that reduce GHG emissions, both
through these programs and through
other programs, such as the Surface
Transportation Block Grant Program
authorized at 23 U.S.C. 133.
The establishment of the GHG
measure does not force investments in
specific projects or strategies to reduce
emissions, nor does it require the
achievement of an absolute reduction
target. However, FHWA has determined
that the targets for the GHG measure
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should show a reduction in CO2
emissions. As discussed in response to
comments in Section VII of this
preamble, the establishment of
declining targets is vital given the
urgency of the climate crisis.
Establishing declining targets will help
State DOTs and MPOs plan toward
reductions in GHG emissions and make
Federal infrastructure investment
decisions that reduce climate pollution,
a principle set forth in E.O. 14008 (86
FR 7626). State DOTs and MPOs will set
targets that indicate a reduction in CO2
emissions, which FHWA has
determined will be supportive of the
policy goals set forth in 23 U.S.C.
150(b).
Although the rule requires declining
targets for CO2 emissions, FHWA is not
setting forth any requirements in this
rulemaking to determine how State
DOTs and MPOs should determine their
declining targets. In addition, as
directed by 23 U.S.C. 145, States
determine which of their projects shall
be federally financed by Federal-aid
highway formula dollars. State DOTs
and MPOs will set and determine targets
based on appropriate data as informed
by State DOT and MPO policies and
priorities. The FHWA is not prescribing
what declining targets would look like
in each State or MPO, and FHWA is not
requiring State DOTs and MPOs to
achieve targeted emission reductions,
nor prescribing the selection of specific
projects under this rulemaking. Thus,
this approach is consistent with the
Agency’s authority under 23 U.S.C.
150(c) to establish measures for States to
use to assess the performance of the
Interstate and non-Interstate NHS in the
furtherance of the national goal to
enhance the performance of the
transportation system while protecting
and enhancing the natural environment.
In addition, adopting the measure for
GHG emissions under 23 U.S.C.
150(c)(3) is appropriate in light of the
structure of the TPM program. As
discussed in the NPRM, Congress
required FHWA to establish
performance measures for a number of
programs in addition to the NHPP,
including an emissions related measure
for the CMAQ Program under 23 U.S.C.
149. As discussed in the NPRM and in
response to comments in Section VII of
this preamble, the existence of the
CMAQ emissions measure has raised
questions regarding whether Congress
intended FHWA to only measure
emissions when those emissions are
related to CMAQ, which is limited to
criteria pollutants and nonattainment or
maintenance areas under the Clean Air
Act. However, this language only
indicates congressional intent that
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FHWA establish a performance measure
for on-road mobile source emissions for
the purposes of carrying out the CMAQ
Program. Nothing in 23 U.S.C. 150
limits measures that take into account
emissions only to measures established
for the purposes of carrying out the
CMAQ Program. The FHWA has
determined that it is appropriate to
examine relevant emissions as part of
assessing performance of the Interstate
and non-Interstate NHS in support of
the NHPP.
For all of these reasons, FHWA asserts
the GHG measure is consistent with
FHWA’s authority under 23 U.S.C.
150(c).
Reconsideration of Previous Actions
As discussed in Section II of this
preamble, and detailed in Section III.C
of the NPRM, FHWA has previously
proposed and finalized actions related
to a GHG measure. Specifically, FHWA
previously finalized the PM3 rule,
through which the Agency considered
extensive public comments on whether
and how FHWA should establish a GHG
measure. The FHWA determined that it
was appropriate to measure
environmental performance, specifically
as the percent change in CO2 emissions
from the reference year 2017, generated
by on-road mobile sources on the NHS
(82 FR 5970). On October 5, 2017 (82 FR
46427), however, FHWA proposed to
repeal the 2017 GHG measure. As
discussed in more detail in the NPRM
to this action, FHWA repealed the GHG
measure on May 31, 2018 (83 FR 24920),
in light of policy direction from the
previous administration to review
existing regulations to determine
whether changes would be appropriate
to eliminate duplicative regulations,
reduce costs, and streamline regulatory
processes, and after considering public
comments received. The repeal was
effective on July 2, 2018. The FHWA
identified three main reasons for the
repeal: (1) reconsideration of the
underlying legal authority; (2) the cost
of the GHG measure in relation to the
lack of demonstrated benefits; and (3)
potential duplication of information
produced by the GHG measure and
information produced by other
initiatives related to measuring CO2
emissions.
As part of this rulemaking, FHWA
evaluated each of these rationales to
examine whether they remain
appropriate in light of current
information. First, FHWA proposed, and
now finalizes, that the Agency has
reconsidered its interpretation of the
statute. Consistent with the reasoning
set forth in the PM3 rule, FHWA
believes adopting this measure under 23
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85369
U.S.C. 150(c) is appropriate in light of
the Agency’s authority under that
section and based on the Agency’s
authority under Title 23, U.S.C. as a
whole, as previously described in this
section and detailed further in Section
III.B of the NPRM. See 87 FR 42407–
42410. Second, FHWA has determined
that the benefits of the rulemaking,
although difficult to quantify, are
substantial and justify finalizing this
action. In its 2022 NPRM, FHWA
described how the substantial benefits
of this regulation justified reconsidering
and rejecting the Agency’s conclusion in
the 2018 final rule that the benefits of
a GHG measure were too speculative
and outweighed by the costs to justify
retaining the measure as part of the TPM
program. See 87 FR 42410–42411. The
benefits and policy rationale for this
regulation are further described in
Section IV of this preamble. Third, and
as discussed in the 2022 NPRM, see 87
FR 42411–42412, FHWA has
determined that the information
produced by the GHG measure is not
duplicative in relation to information
produced by other initiatives related to
measuring CO2 emissions, but rather
complements that data to support a
whole-of-government approach to
addressing GHG emissions. The
importance of this measure is further
described in Section IV of this
preamble.
FHWA adopts in full its analysis in
the 2022 NPRM justifying the
reconsideration and rejection of the
conclusion from the 2018 final rule that
23 U.S.C. 150 did not provide FHWA
with authority to measure the
environmental performance of the NHS
and adopt a GHG measure, and that the
overall statutory scheme of Title 23,
U.S.C. supported a narrower
interpretation of performance of the
NHS, and emphasizes some key points
here. In the 2018 repeal, FHWA
concluded that 23 U.S.C. 119(d)(1)(A)
delineates the national goals that are
relevant to eligibility of projects for
funding under the NHPP, and the
national goals included in section
119(d)(1)(A) 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, rather than environmental
performance. 83 FR 24923–24924. Upon
reexamination of the statute, FHWA has
determined that this previous
interpretation was incorrect. Section
119(d)(1) of Title 23, U.S.C., establishes
eligibility criteria for using funds
apportioned to a State for carrying out
the NHPP, but does not set forth all
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relevant considerations for carrying out
the program. Specifically, States are also
required to establish asset management
plans under 23 U.S.C. 119(e). These
plans shall include strategies toward
improving or preserving the condition
of the assets and the performance of the
system, including supporting progress
toward the national goals in 23 U.S.C.
150(b). FHWA’s previous interpretation
ignored Congress’s express direction for
States to develop these plans for the
NHS, which address both asset
condition and system performance, and
referenced all of the national goals in
section 150(b), rather than a subset of
goals such as the goals identified in 23
U.S.C. 119(d)(1). In addition, FHWA
observes that 23 U.S.C. 119(d)(2)
provides eligibility for projects under
the NHPP that go beyond the limited
subset of national goals listed in section
119(d)(1). The statute identifies eligible
projects that support the national goal of
environmental sustainability, such as
environmental restoration and pollution
abatement, control of noxious weeds
and establishment of native species, and
other environmental mitigation efforts.
See 23 U.S.C. 119(d)(2)(M)–(O). When
FHWA repealed the PM3 rule and
determined that performance measures
under 23 U.S.C. 150(c)(3) are limited to
advancing the nationals goal in section
119(d)(1), the Agency did not
appropriately consider the section
119(e) requirement to develop an asset
management plan that supports
achievement of all national goals in 23
U.S.C. 150(b), and eligibility for projects
that support achieving environmental
sustainability. In reexamining this
authority, FHWA has determined that
the Agency must consider the totality of
23 U.S.C. 150(b) when interpreting the
meaning of performance on the
Interstate and non-Interstate NHS and
how performance is to be measured.
Additionally, FHWA has identified
above several other provisions of Title
23, U.S.C., that support FHWA’s
proposal to address GHG emissions in
this rulemaking and make it clear that
assessing infrastructure performance
under 23 U.S.C. 150(c)(3) properly
encompasses the assessment of
environmental performance, including
GHG emissions. In the 2018 repeal final
rule, FHWA considered these provisions
irrelevant because they do not
‘‘specifically direct[ ] or require[ ] FHWA
to adopt a GHG measure.’’ 83 FR at
24923. However, these provisions do
not prohibit FHWA from adopting a
GHG measure—nor does any other
provision in Title 23—and by stating the
importance of protecting the
environment and improving the
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resiliency of the transportation system,
including through the use of
performance management, these
provisions clearly support the use of a
GHG measure to assess the
environmental performance of the NHS.
As discussed above, the passage of BIL
added additional programs and
eligibilities to Title 23, and the
administration of these programs will
greatly benefit from the measurement of
the environmental performance,
including measurement of GHG
emissions on the NHS. FHWA believes
that these provisions of Title 23,
including those added after the 2018
repeal of the GHG measure, serve to
underscore the importance of
reestablishing the GHG measure.
As discussed in the preamble to the
NPRM, FHWA acknowledges that this
action largely reestablishes a measure
similar to the measure finalized in 2017
and repealed in 2018. See 83 FR 24920.
However, as discussed in the preamble
to the NPRM, FHWA expects that States
and MPOs have no reliance interests
resulting from establishment and the
repeal of the 2017 GHG measure. See 87
FR 42410. The FHWA repealed the 2017
GHG measure before the respective due
dates for target setting or reporting, and
FHWA is unaware of any State DOTs or
MPOs that incurred costs because of the
promulgation and prompt repeal of that
measure. Nor did the repeal itself
impose any compliance costs on State
DOTs or MPOs. Accordingly, FHWA
does not expect this final rule to result
in any increased burden on State DOTs
or MPOs by virtue of the fact that
FHWA previously established a similar
measure that was repealed before any
State DOTs or MPOs relied on and
implemented its target setting and
reporting requirements. This measure is
a new one, which State DOTs and MPOs
have not previously implemented. As a
result, FHWA expects that States and
MPOs would not have any reliance
interests based on the repeal of the 2017
GHG measure. After reviewing the
comments on the proposal, FHWA
reaffirms that any potential reliance
interest would be outweighed by the
benefits of this action, to the extent
those interests exist.
IV. Basis & Benefits of These
Regulations
The FHWA believes that the
performance management requirements
are a powerful tool for achieving all
seven of the statutory national
transportation goals, including the
Federal-aid highway program’s national
goal for environmental sustainability
identified under 23 U.S.C. 150(b)(6),
and establishing a GHG measure in
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FHWA’s TPM Program will provide a
consistent basis for addressing the
environmental sustainability of the
transportation system and estimating
on-road GHG emissions. In addition, the
GHG measure will result in a consistent
set of data that can be used to inform the
future investment decisions of the
Federal Government, State DOTs, and
MPOs towards achieving their targets or
goals.
By establishing the GHG performance
measure, FHWA is taking action to
address the largest source of U.S. CO2
emissions. In 2021, the transportation
sector accounted for 34.8 percent of
total U.S. CO2 emissions, with 82.7
percent of the sector’s total CO2
emissions coming from on-road
sources.7 The transportation sector is
expected to remain the largest source of
U.S. CO2 emissions through 2050,
increasing at an average annual rate of
0.3 percent per year despite
improvements in the energy efficiency
of light-duty vehicles, trucks, and
aircraft.8 Factors such as population
growth, expansion of urban centers, a
growing economy, and increased
international trade are expected to result
in growing passenger and freight
movement. These changes can make
GHG reductions and environmental
sustainability both more challenging to
implement and more important to
achieve.9
In addition to being the largest source
of U.S. CO2 emissions,10 the
transportation sector is increasingly
vulnerable to the effects of climate
change including higher temperatures,
more frequent and intense precipitation,
and sea level rise. Much of existing
transportation infrastructure was
designed and constructed without
consideration of these changes. The
Sixth Assessment Report by the IPCC,
released on August 7, 2021, confirms
that human activities are increasing
GHG concentrations that have warmed
7 U.S. Environmental Protection Agency, 2023:
Inventory of U.S. Greenhouse Gas Emissions and
Sinks: 1990–2021, available at https://
www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2021.
8 U.S. Energy Information Administration, 2021:
Annual Energy Outlook 2021, available at https://
www.eia.gov/outlooks/aeo/tables_ref.php.
9 Jacobs, J.M., M. Culp, L. Cattaneo, P.
Chinowsky, A. Choate, S. DesRoches, S. Douglass,
and R. Miller, 2018: Transportation. In Impacts,
Risks, and Adaptation in the United States: Fourth
National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E.
Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 479–511. doi:
10.7930/NCA4.2018.CH12, available at https://
nca2018.globalchange.gov/chapter/12/.
10 See EPA, Inventory of U.S. Greenhouse Gas
Emissions and Sinks 1990–2021, at 2–28.
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the atmosphere, ocean, and land at a
rate that is unprecedented in at least the
last 2000 years.11 According to the
report, global mean sea level has
increased between 1901 and 2018, and
changes in extreme events such as
heatwaves, heavy precipitation,
hurricanes, wildfires, and droughts have
intensified since the last assessment
report in 2014.12 These changes in
extreme events, along with anticipated
future changes in these events because
of climate change, threaten the
reliability, safety and efficiency of the
transportation system. At the same time,
transportation contributes significantly
to the causes of climate change 13 and
each additional ton of CO2 produced by
the combustion of fossil fuels
contributes to future warming and other
climate impacts.
The first step toward reducing GHG
emissions involves inventorying and
monitoring those emissions. By
establishing a consistent method for
estimating GHG emissions and reporting
on trends, the GHG measure aligns with
E.O. 13990, E.O. 14008, and supports a
U.S. target of reducing GHG emissions
economy-wide 50 to 52 percent below
2005 by 2030, on a course toward
reaching net-zero emissions
economywide by no later than 2050.14
11 See IPCC, 2021: Summary for Policymakers. In:
Climate Change 2021: The Physical Science Basis.
Contribution of Working Group I to the Sixth
Assessment Report of the Intergovernmental Panel
on Climate Change, available at https://
www.ipcc.ch/report/ar6/wg1/#SPM.
12 IPCC, 2021: Climate Change 2021: The Physical
Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the
Intergovernmental Panel on Climate Change
[Masson-Delmotte, V., P. Zhai, A. Pirani, S.L.
Connors, C. Pe´an, S. Berger, N. Caud, Y. Chen, L.
Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E.
Lonnoy, J.B.R. Matthews, T.K. Maycock, T.
Waterfield, O. Yelekc
¸i, R. Yu, and B. Zhou (eds.)].
Cambridge University Press. In Press.
13 Jacobs, J.M., M. Culp, L. Cattaneo, P.
Chinowsky, A. Choate, S. DesRoches, S. Douglass,
and R. Miller, 2018: Transportation. In Impacts,
Risks, and Adaptation in the United States: Fourth
National Climate Assessment, Volume II
[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E.
Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 479–511.
doi:10.7930/NCA4.2018.CH12.
14 White House Fact Sheet: The Biden-Harris
Electric Vehicle Charging Action Plan (December
13, 2021), available at https://www.whitehouse.gov/
briefing-room/statements-releases/2021/12/13/factsheet-the-biden-harris-electric-vehicle-chargingaction-plan/; White House Fact Sheet: President
Biden Sets 2030 Greenhouse Gas Pollution
Reduction Target Aimed at Creating Good-Paying
Union Jobs and Securing U.S. Leadership on Clean
Energy Technologies (Apr. 22, 2021), available at
https://www.whitehouse.gov/briefing-room/
statements-releases/2021/04/22/fact-sheetpresident-biden-sets-2030-greenhouse-gaspollution-reduction-target-aimed-at-creating-goodpaying-union-jobs-and-securing-u-s-leadership-onclean-energy-technologies/; White House Fact
Sheet: President Biden’s Leaders Summit on
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Section 1 of E.O. 13990, ‘‘Protecting
Public Health and the Environment and
Restoring Science to Tackle the Climate
Crisis,’’ (86 FR 7037), articulates
national policy objectives, including
listening to the science, improving
public health and protecting the
environment, reducing GHG emissions,
and strengthening resilience to the
impacts of climate change. The E.O.
14008, ‘‘Tackling the Climate Crisis at
Home and Abroad,’’ (86 FR 7619),
recommits the U.S. to the Paris
Agreement and calls on the U.S. to
begin the process of developing its
nationally determined contribution to
global GHG reductions. See E.O. 14008,
§ 102. The E.O. 14008 also calls for a
government-wide approach to the
climate crisis and acknowledges
opportunities to create well-paying,
union jobs to build a modern,
sustainable infrastructure, to provide an
equitable, clean energy future, and to
put the U.S. on a path to achieve netzero emissions, economywide, no later
than 2050. See id., § 201.
As a matter of transportation policy,
FHWA considers the GHG measure
essential not only to improve
transportation sector performance and
work toward achieving net-zero
emissions economy-wide by 2050, but
also to demonstrate Federal leadership
in the assessment and disclosure of
climate pollution from the
transportation sector. Measuring and
reporting complete, consistent, and
timely information for on-road mobile
source emissions is necessary so that all
levels of government and the public can
monitor changes in GHG emissions over
time and make more informed decisions
about the role of transportation
investments and other strategies in
achieving GHG reductions.
After reviewing the comments
provided on the NPRM, FHWA has
decided to finalize the measure
proposed in the NPRM, which is the
percent change in tailpipe CO2
emissions on the NHS relative to the
reference year. In choosing this
measure, FHWA considered the
measure’s sensitivity to strategies and
policies of interest to transportation
agencies, as well as its simplicity, ease
of calculation, and reliance on data
States already report to FHWA. In
particular, the GHG measure will utilize
fuel use estimates collected by FHWA
very shortly after these data are
finalized, providing a consistent and
timely data source that is better suited
Climate (Apr. 23, 2021), available at https://
www.whitehouse.gov/briefing-room/statementsreleases/2021/04/23/fact-sheet-president-bidensleaders-summit-on-climate/.
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for setting targets and monitoring trends
in mobile source CO2 emissions on the
NHS. As a new source of information,
the measure has the potential to result
in greater public awareness of GHG
emissions trends, provide increased
transparency and improved
decisionmaking at all levels of
government, and support better
informed planning choices to reduce
GHG emissions or inform tradeoffs
among competing policy choices. In
these capacities, the proposed GHG
measure is integral to a whole-ofgovernment approach to address climate
change and its effects.
V. Summary of Comments
The FHWA received 39,751
submissions to the docket, including
39,522 from 7 comment campaigns, in
response to the NPRM, resulting in 236
unique submissions containing 999
individual comments. The submissions
were signed by 105,484 separate groups/
individuals. The FHWA received
comments from 98 advocacy and
interest groups (including advocacy
groups for active transportation and
public transit, the natural environment,
climate change action, clean air, and
equity/environmental justice, among
others), 31 State DOTs and the District
of Columbia DOT, 33 State Attorneys
General, one State Governor, 33 MPOs,
two State environmental agencies, 10
County/Local government agencies, as
well as 57 U.S. Senators from 38 states
and 56 U.S. Representatives from 25
states. The FHWA also received
comments from 24 industry associations
(including the American Association of
State Highway Transportation Officials
(AASHTO), the Association of
Metropolitan Planning Organizations
(AMPO), and the American Public
Transportation Association (APTA), as
well as those representing highway and
transportation users, roadway materials
producers and roadway builders, and
energy companies, among others). The
FHWA also received comments from
over 104,500 private citizens, the
majority of which were submitted as
part of comment campaigns.
VI. Summary of Changes Made in This
Final Rule
This section provides a summary of
the changes made in the rule compared
to the NPRM. Section VII provides
further discussion on the significant
changes and the reasons they were
made.
A. Reference Year
In the final rule, FHWA establishes
that 2022 will be the reference year for
this measure. The FHWA has changed
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the definition in 23 CFR 490.505 and
updated the calculation of the measure
in 23 CFR 490.513(d) 15 accordingly.
B. Net-Zero
The definition of net-zero was
removed from 23 CFR 490.101, and 23
CFR 490.105(e)(10) was revised so
targets must be declining for reducing
tailpipe CO2 emissions on the NHS, but
they are not required to demonstrate
reductions toward net-zero targets.
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C. State DOT Targets & Reports
In the final rule, FHWA establishes
that State DOTs will establish initial
targets for the GHG measure and report
them no later than February 1, 2024. 23
CFR 490.105(e)(1) and 490.107(d). The
February 1, 2024, date required changes
to several sections of existing regulation.
Below is a general summary of the
initial target establishment
requirements, the reporting process for
the State Initial GHG Report due
February 1, 2024, and the significant
progress determinations that will be
completed after the State biennial
reports submitted by October 1, 2024,
and 2026.
State DOT Target Establishment &
Reporting Related to February 1, 2024
The performance period for the GHG
measure will begin January 1, 2022 and
extend 4 years. 23 CFR 490.105(e)(1). By
February 1, 2024, State DOTs will
establish initial targets for the GHG
measure. 23 CFR 490.105(e)(1)(ii).
Initially, State DOTs will establish 4year targets; 2-year targets will not be
established. 23 CFR 490.105(e)(1),
490.105(e)(4)(iii), and 490.105(e)(10)(i).
For the initial 4-year target, the
reference year will be used as the
baseline. 23 CFR 490.105(e)(10)(i)(C).
State DOTs will report their 4-year
targets to FHWA in the State Initial GHG
Report by no later than February 1,
2024. 23 CFR 490.107(d). The State
Initial GHG Report shall include the
State DOT’s 4-year target for the GHG
measure, the basis for the target, a
discussion of how the target relates to
other longer-term performance
expectations, and the metric
information for the reference year. 23
CFR 490.107(d)(1). The metric reported
will be calculated using the data
specified in 23 CFR 490.107(d)(2).
Because of the 2024 State Initial GHG
Report, State DOTs will not include
additional GHG information in the 2024
Mid Performance Period Progress
Report, due October 1, 2024. 23 CFR
490.107(b)(2)(i). Biennial reporting
15 In this section, the citations to 23 CFR part 490
refer to provisions as amended by this final rule.
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related to the GHG measure will begin
with the 2026 Full Performance Period
Progress Report and the 2026 Baseline
Performance Period Report. 23 CFR
490.107(b)(1)(i), 490.107(b)(2)(i), and
490.107(b)(3)(i).
Significant Progress Determination on
Initial Targets
After the 2026 Full Performance
Period Progress Report, FHWA will
determine whether a State DOT has
made significant progress toward the
achievement of the 4-year target for the
GHG measure. The FHWA will use the
data described in 23 CFR 490.109(d)(1)
when calculating the actual
performance and making the significant
progress determination. The
performance for the reference year will
be used as the baseline performance in
the 2026 significant progress
determination. 23 CFR
490.105(e)(10)(i)(C).
The significant progress
determination requirements related to
the GHG measure will be phased in as
described in 23 CFR 490.109(e)(6). The
FHWA will not determine significant
progress toward 2-year targets for this
measure after the 2024 Mid Performance
Period Progress Report since 2-year
targets will not have been established,
and information related to the GHG
measure will not have been included in
the 2024 Mid Performance Period
Progress Report. Therefore, in 2024,
FHWA will classify the assessment of
progress toward the achievement of 2year targets for the GHG measure as
‘‘progress not determined’’ and they will
not be subject to any additional
reporting requirements. 23 CFR
490.109(e)(6).
Biennial Reporting
FHWA revised proposed changes to
section 490.107(b)(1), (b)(2), and (b)(3)
to require biennial reporting related to
the GHG measure to begin with the 2026
Full Performance Period Progress
Report. And, consistent with 23 CFR
490.105(e)(5), the State DOT’s 2- and 4year targets will be reported in the 2026
Baseline Performance Period Report.
See the discussion under ‘‘State DOT
Data for the GHG Metric Calculation’’
for more information on the State DOT
biennial reporting associated with the
GHG metric.
D. State DOT Data for the GHG Metric
Calculation
State DOTs are required to calculate
and report both the GHG measure and
the GHG metric, the latter of which is
defined as the calculation of tailpipe
CO2 emissions on the NHS for a given
year computed in million metric tons
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(mmt) and round to the nearest
hundredth. 23 CFR 490.511(c). State
DOTs use the metric to calculate the
measure, which is the percent change
between the current year and the
reference year. To calculate the metric,
State DOTs require several data inputs,
and they are defined in 23 CFR
490.511(c). To ensure consistent
calculation of the metric, the data
requirements are defined in 23 CFR
490.509. To provide transparency and
consistency, FHWA defines the specific
data sources it will use when it
calculates the metric and measure for
the significant progress determination in
23 CFR 490.109(d).
In this final rule, proposed 23 CFR
490.509(h) was revised so that the State
DOT will be able to use their best
available vehicle miles traveled (VMT)
data when establishing targets, reporting
baseline and actual performance and
discussing progress. This change
addresses a comment that stated VMT
data might not be finalized within the
Highway Performance Monitoring
System (HPMS) for all States by August
15th. The VMT data used by State DOTs
will represent the prior calendar year
and should be consistent with the final
VMT data submitted by the State DOT
to HPMS, to the maximum extent
practicable. 23 CFR 490.509(h). The
HPMS data as of November 30, 2023,
will be used to calculate the metric for
the reference year. 23 CFR 490.509(h).
Because FHWA will not necessarily
have the VMT data the State DOT used,
the biennial reporting requirements in
proposed 23 CFR 490.107(b)(1)(ii)(H),
(b)(2)(ii)(J), and (b)(3)(ii)(I) were revised
in this final rule to require the State
DOT to report the GHG metric value
they calculated, the individual values
used to calculate the GHG metric, and
a description of the data source(s) used
for the VMT information. This final rule
removes the proposed requirement for
the State DOT to report CO2 emissions
on all public roads as part of reporting
the metric information since the values
used to calculate the GHG metric can be
used to calculate the all-roads value. A
corresponding change was made to 23
CFR 490.511(f)(2) to align with the
metric reporting requirements in the
State DOT’s biennial reports.
Section 490.109(d)(1)(vi) and
(d)(1)(vii) were revised to require the
significant progress determination to
calculate the GHG metric and measure
for the baseline and actual performance
using the HPMS data available on
November 30th of the year the
significant progress determination is
made. For the reference year, FHWA
will use the HPMS data as of November
30, 2023. 23 CFR 490.109(d)(1)(vi)–(vii).
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Section 490.109(d)(1)(viii) was added to
specify that the significant progress
determination will use the CO2 factors
specified in section 490.509(f).
In the final rule, FHWA has added the
requirement for State DOTs to submit
the State Initial GHG Report, as
described in VI.C. For that report, the
State DOT will use the data specified in
23 CFR 490.107(d)(2) to calculate the
metric.
Please note, 23 CFR 490.511 includes
different requirements for State DOTs
and MPOs when calculating the metric
used to calculate the GHG measure. The
State DOT’s method is defined in 23
CFR 490.511(c) and the method will be
the same for all states. The MPOs are
granted flexibility in how they calculate
the metric, as described in 23 CFR
490.511(d). This section only discusses
the changes made in the final rule in
relation to the data the State DOT will
use when calculating the GHG metric.
The changes made related to the MPO
metric requirements are summarized
below in Section VI.E.
E. Initial MPO Targets & Reports
The final rule, in 23 CFR 490.511(d),
retains the additional flexibility granted
to MPOs in how they calculate the GHG
metric. The final rule removes the
proposed requirement for MPOs and
State DOTs to mutually agree upon a
method for calculating the metric, and
instead requires MPOs to report a
description of their metric calculation
method(s). When that method is not one
of the ones specified in 23 CFR
490.511(d), the MPO will include
information demonstrating the
method(s) has valid and useful results
for measuring transportation related
CO2. 23 CFR 490.107(c)(2)(ii). While
MPOs are not required to select a metric
calculation in coordination with their
State DOT, they are encouraged to
coordinate with the State DOT on the
data used to the maximum extent
practicable.
85373
The final rule removes the proposed
requirement for the MPO to report CO2
emissions on all public roads.
F. Severability
The final rule adds a new section 23
CFR 490.515 that contains a severability
clause applicable to the amendments to
23 CFR part 490 made by this final rule.
FHWA believes that the amendments to
part 490, including establishment and
calculation of the GHG performance
measure and declining targets, are
capable of operating independently of
one another. If one or more aspects of
the GHG measure are determined to be
invalid, the remaining provisions
should remain unaffected and in force.
G. Other Changes
The final rule contains several
technical changes from the proposed
rule. These changes are described in
Table 1.
TABLE 1—TECHNICAL EDITS TO THE FINAL RULE
CFR section
Description of change
23 CFR 490.101 ..........................................................
Corrects the abbreviated name for the Fuels and Financial Analysis System—Highways
(Fuels & FASH) database. Corresponding changes were made throughout the rule.
Clarifies language describing the GHG measure.
Clarifies the applicability of the joint targets.
Moves information about the performance period from the location proposed in the
NPRM to here to align with references to the performance period throughout 23 CFR
part 490.
Clarifies rule language.
Updates language to capture the edition of Section 490.107(d) in the final rule.
Revises the structure and organization of the paragraph to improve readability.
Clarifies that the reference year data will not be updated each time the data for the previous year is compiled.
Clarifies that the CO2 factor specified in Section 490.509(f) will be used.
Substitutes ‘‘accepted’’ instead of ‘‘cleared.’’
Adds the HPMS data extraction date. Listing this date is consistent with Section
490.109(e)(4)(vi) and does not change the intended approach.
Revises rule language to use consistent terminology.
Clarifies that approximately 97 percent of on-road tailpipe GHG emissions are CO2.
Clarifies rule language.
Revises rule language to use consistent terminology.
23 CFR 490.105(c)(5) ..................................................
23 CFR 490.105(d)(4) .................................................
23 CFR 490.105(e)(4)(i)(C) .........................................
23
23
23
23
CFR
CFR
CFR
CFR
490.105(f)(10) ................................................
490.107(a)(1) .................................................
490.107(c)(2) ..................................................
490.109(d)(1)(v) and (d)(1)(vii) ......................
23 CFR 490.109(d)(1)(viii) ...........................................
23 CFR 490.109(e)(4)(vi) ............................................
23 CFR 490.109(e)(4)(vii) ............................................
23
23
23
23
CFR
CFR
CFR
CFR
490.109(f)(1)(v) ..............................................
490.505 ..........................................................
490.509(f) .......................................................
490.509(f)(2) ..................................................
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VII. Section-by-Section Discussion
This final rule was developed in
response to comments received on the
NPRM. Section VII summarizes major
comments received and any substantive
changes made to each section in this
final rule. Editorial or minor changes in
language are not addressed in this
section. For sections where no
substantive changes are discussed, the
substantive proposal from the NPRM
has been adopted in this final rule.
Questions Posed in the NPRM
The FHWA requested comment on a
number of items in the NPRM. The
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FHWA invited comments on the
following:
• How should FHWA structure
improving targets for the GHG measure,
as well as the associated reporting and
significant progress requirements, and
how could these targets align with and
inform existing transportation planning
and programming processes?
• Besides requiring targets that
reduce GHGs over time, are there any
specific ways the proposed GHG
measure could be implemented within
the framework of TPM to better support
emissions reductions to achieve
national policies for reductions in total
U.S. GHG emissions?
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• What changes to the proposed
measure or its implementation in TPM
could better the impact of transportation
decisions on CO2 emissions, and enable
States to achieve tailpipe CO2 emissions
reductions necessary to achieve national
targets?
• In instances that MPOs are
establishing a joint UZA target, should
FHWA require that the individual MPOwide targets be the same as the jointly
established UZA target?
• Should MPOs that establish a joint
UZA target be exempt from establishing
individual MPO-level targets, and
instead only be required to adopt and
support the joint UZA target?
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• In cases where there are multiple
MPOs with boundaries that overlap any
portion of an UZA, and that UZA
contains NHS mileage, should each of
those MPOs establish their own targets,
with no requirement for a joint UZA
target?
• Are there other approaches to target
setting in UZAs served by multiple
MPOs that would better help MPOs
reach net-zero emissions?
The FHWA also requested comment
on assumptions that were developed as
part of the RIA, as well as information
on other benefits or costs that would
result from implementation of the rule,
as follows:
• The RIA includes assumptions
regarding the applicability, level of
effort and frequency of activities under
proposed 23 CFR 490.105, 490.107,
490.109, 490.511, and 490.513. Are
these assumptions reasonable? Are there
circumstances that may result in greater
or lesser burden relative to the RIA
assumptions?
• Would the staff time spent
implementing this measure reduce the
burden of carrying out other aspects of
State DOT and MPO missions, such as
forecasting fuel tax revenues? If so,
please describe and provide any
information on programs that would
benefit from this measure and estimate
any costs that would be reduced by
implementing this measure.
• Would the proposed rule result in
economies of scale or other efficiencies,
such as the development of consulting
services or specialized tools that would
lower the cost of implementation? If so,
please describe such efficiencies and
provide any information on potential
cost savings.
• Would the proposed rule result in
the qualitative benefits identified in the
RIA, including more informed
decisionmaking, greater accountability,
and progress on National Transportation
Goals identified in MAP–21? Would the
proposed rule result in other benefits or
costs? Would the proposed measure
change transportation investment
decisions and if so, in what ways? For
State DOTs and MPOs that have already
implemented their own GHG
measure(s), FHWA welcomes
information on the impact and
effectiveness of their GHG emissions
measure(s).
The FHWA received many comments
on these items, and thanks commenters
for their useful input. The FHWA
considered these comments in
developing this final rule and responds
to significant adverse comments related
to these questions and other comments
in the following section.
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General Comments
FHWA’s Legal Justification for the GHG
Measure
Comment: A large number of
commenters addressed FHWA’s legal
authority for this measure. Many
commenters affirmed FHWA’s legal
authority to establish the measure under
23 U.S.C. 150. These commenters note
that under MAP–21, FHWA is required
to establish ‘‘performance’’ measures to
assess performance of the Interstate and
non-Interstate NHS, see 23 U.S.C.
150(c)(3)(A)(ii)(IV)–(V), and FHWA’s
interpretation of ‘‘performance’’ to
include environmental performance is
consistent with the express statutory
goals of the Federal-aid highway
program, which include environmental
sustainability under 23 U.S.C. 150(b)(6).
In contrast, many commenters disputed
FHWA’s legal authority to establish the
proposed measure. Several commenters
stated that, contrary to FHWA’s
statements, this action will in fact set
performance targets for the States and
MPOs by requiring State DOTs and
MPOs with NHS mileage to establish
declining CO2 emissions targets that
align with the Administration’s net-zero
targets, while FHWA’s authority is
limited to establishing measures for
States to use to measure performance.
These commenters largely characterized
the measure as a requirement that State
DOTs and MPOs reduce GHG emissions.
Notably, a large number of commenters
stated that FHWA does not have the
authority to regulate GHGs, as Congress
has not assigned such authority to the
Agency, and such authority would be
more appropriately assigned to the
Environmental Protection Agency
(EPA). Similarly, several commenters
claim that FHWA should not focus on
regulating GHGs, and instead should
work with the EPA to reduce CO2
emissions. A commenter also asserted
that the proposed rule inappropriately
seeks to rebalance Congress’s funding
priorities.
Response: As discussed in Section III
of this preamble, FHWA affirms that the
Agency has the requisite statutory
authority to adopt the GHG measure. A
significant number of commenters
questioning FHWA’s authority to adopt
the GHG measure have mischaracterized
this rulemaking. The FHWA is not
regulating GHG emissions via this
measure, is not mandating any
reductions, is not forcing States to select
specific projects, and is not asserting
authority through this rulemaking over
GHG emissions from the transportation
sector. Rather, this measure is designed
to provide State DOTs and MPOs with
the information necessary to make
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informed transportation decisions.
Although FHWA is requiring that State
DOTs and MPOs set targets—consistent
with the rest of the TPM program—
FHWA is not mandating specific targets
and is not setting those targets for State
DOTs and MPOs. The FHWA is also
neither approving nor disapproving
individual targets. Thus, FHWA is
applying the Agency’s authority under
23 U.S.C. 150(c) and is not extending
beyond that authority. However, upon
examining comments and the preamble
to the NPRM, FHWA recognizes that the
language regarding aligning with netzero targets could be clarified to better
indicate FHWA’s intent. Therefore,
FHWA is clarifying that the Agency is
not requiring that declining targets align
to the Administration’s net-zero targets
as outlined in the national policy
established under E.O. 14008. Rather,
FHWA recommends that State DOTs
and MPOs consider the
Administration’s targets when setting
their declining targets.
Comment: Several commenters
asserted that FHWA has not sufficiently
justified changing its approach.
Commenters assert that FHWA is merely
reinstating a previous action and is
changing the Agency’s position based
on policy preferences provided in E.O.s
rather than technical expertise, such as
by stating that the emissions measure
would result in substantial benefits,
while also stating that the benefits are
not easily quantifiable. Several
commenters assert that FHWA has
failed to adequately justify this measure
by relying on general reports on CO2
emissions and climate change harms. In
addition, commenters asserted that
FHWA may not merely reexamine
previous assertions in rulemakings and
must instead provide technical analysis
in support of the rulemaking.
Commenters asserted that FHWA failed
to consider whether declining targets
will interfere with other statutory
schemes by encouraging States to adopt
electric vehicles to reduce GHGs while
not focusing on reducing criteria
pollutants under CMAQ. In addition,
commenters assert FHWA failed to
consider whether the rulemaking will
disadvantage States with a range of
different conditions, such as extreme
climates and freight traffic.
Response: The FHWA disagrees with
these commenters’ assertions. The
FHWA has reexamined the rationale for
the 2018 repeal and has determined that
FHWA has the authority to adopt this
GHG measure and has provided updated
analyses identifying why the GHG
measure is appropriate and reasonable
in light of FHWA’s statutory mandate to
adopt performance measures. The
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FHWA’s legal authority, technical
justification, and reasoned analysis for
this measure are detailed in the NPRM
and in Sections III. and IV. of this
preamble. FHWA has acknowledged
that it is changing the position the
Agency put forward in the 2018 repeal
final rule and provided detailed legal,
technical, and policy reasons for doing
so. Commenters’ assertion that FHWA
must do more to justify changing its
approach has no basis in law. See FCC
v. Fox Television Stations, Inc., 556 U.S.
502, 515–16 (2009). The FHWA also
disagrees with the commenters’
assertions about FHWA’s failure to
consider whether declining targets will
disadvantage States or cause any
potential harm through the adoption of
electric vehicles. These comments are
predicated on a misconception that
FHWA is requiring any specific
behavior by State DOTs and MPOs to
reduce GHG emissions. The FHWA is
not mandating reductions, and this
rulemaking does not require or purport
to require State DOTs or MPOs to select
GHG reducing projects. Rather, State
DOTs and MPOs will determine
appropriate declining targets based on
the conditions relevant to the State
DOTs and MPOs. The FHWA expects—
but does not require—that this measure
will help State DOTs and MPOs select
projects that will reduce GHG
emissions.
Comment: Several commenters assert
that FHWA lacks the authority to adopt
the GHG measure based on the recent
decision of West Virginia v. EPA, 142 S.
Ct. 2587 (2022), related to the Major
Questions Doctrine.
Response: The FHWA disagrees with
the assertion that this measure is
inconsistent with recent Supreme Court
precedent. This rulemaking is not an
extraordinary case. It does not involve a
novel interpretation of longstanding
FHWA authority, nor does it represent
an unheralded assertion of regulatory
authority with the significant economic
and political impacts that implicate a
major questions case under West
Virginia v. EPA. The FHWA’s approach
is in line with FHWA’s prior
requirements for performance measures
related to the national goals in 23 U.S.C.
150(b). This rulemaking also does not
require State DOTs and MPOs to change
their approach to selecting projects.
Rather, the measure will provide them
with additional information to inform
their decisionmaking. As described in
the RIA, this rulemaking has minimal
costs for State DOTs and MPOs.
Additionally, there is clear
congressional authorization to establish
performance measures under 23 U.S.C.
150(c). Contrary to inaccurate
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statements made by commenters, FHWA
is not regulating GHG emissions, but
rather is setting forth an approach by
which to measure GHG emissions
related to transportation on the
Interstate System and non-Interstate
NHS, using publicly available data,
which States and MPOs can use to make
better-informed transportation
investment decisions. Therefore, FHWA
disagrees with the commenters’
assertions related to the Major
Questions Doctrine.
Comment: A number of commenters
stated that FHWA does not have the
authority to issue this GHG measure
under 23 U.S.C. 150(c) because the
statute limits performance measures
only to those described in that
subsection.
Response: As described in the NPRM
and discussed in Section III of this
preamble, FHWA has reconsidered its
previous interpretation that this
provision limits FHWA’s authority to
establish measures States use to assess
performance on the NHS to measures
that focus on the physical condition of
the system and the efficiency of
transportation operations across the
system. FHWA now concludes that 23
U.S.C. 150(c) limits FHWA to
establishing measures to carry out 23
U.S.C. 119 to measures that assess
performance on the Interstate System
and the NHS. However, the provision
does not otherwise limit the meaning of
‘‘performance.’’ Thus, FHWA has
concluded that the ‘‘performance’’ of the
Interstate and non-Interstate NHS
includes environmental performance,
and FHWA disagrees with the
commenters’ conclusion that FHWA
does not have authority to adopt this
GHG measure.
Comment: Commenters noted that
although FHWA is not proposing any
penalties, FHWA would be able to
influence the selection of projects by
States that rely on formula funds that
Congress requires FHWA to distribute to
States.
Response: The FHWA did not
propose, and is not finalizing, any
requirements for specific use of funds
related to the GHG measure. The
measure and the associated targets
established through the final rule are
intended to help State DOTs and MPOs
consistently and transparently monitor
the current performance of the NHS,
and plan transportation projects in a
way that protects the long-term
performance of the NHS. The final rule
does not direct any action on the part of
the State DOT or MPO with respect to
selecting projects under the Federal-aid
highway program. As per 23 U.S.C. 145,
State DOTs determine which eligible
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projects are federally funded, and
FHWA reaffirms that nothing in this
final rule should be construed to affect
that bedrock principle. Therefore,
FHWA disagrees with the commenters’
assertion that FHWA may influence
project selection through this measure.
Comment: Commenters note that BIL
did not provide FHWA with new
authority to regulate GHGs, but rather
BIL established new programs to
incentivize and reward State DOTs and
MPOs for implementing emissions
reduction strategies. Commenters also
note that BIL and the Inflation
Reduction Act (IRA) (Pub. L. 117–169)
did not authorize FHWA to mandate
GHG performance targets that States
would be required to meet. One
commenter asserts that the legislative
history of BIL indicates that Congress
considered but did not pursue climate
change policy for FHWA. Commenters
assert that Congress specifically chose
not to address GHG emissions under 23
U.S.C. 150(c), and thus FHWA lacks
authority to issue this measure.
Commenters also assert that since
Congress addressed GHG emissions in
programs like the CRP under 23 U.S.C.
175 but did not add them to the
performance measures in 23 U.S.C.
150(c), Congress intended to set
performance measures for some
programs and not set performance
measures for other programs.
Response: As described in Section III
of this preamble, FHWA’s authority for
this measure arises under 23 U.S.C.
150(c), and FHWA’s interpretation of
that authority is informed in part by
new changes from BIL. Additionally,
FHWA did not propose—and is not
finalizing—any FHWA-mandated
performance targets that States would be
required to meet. The BIL contains a
number of programs that aim to reduce
GHG emissions from transportation
sources, and collection and analysis of
the GHG measure can support
implementation of those programs.
However, FHWA did not propose, and
is not finalizing, any requirements
related to those programs. In addition,
FHWA disagrees with the assertion that
BIL does not address climate change. As
discussed in this preamble, there are a
number of GHG emissions-related
provisions in BIL, such as those found
in division A, title I, subtitle D, titled
‘‘Climate Change.’’ These provisions
include both the CRP under 23 U.S.C.
175 and the Promoting Resilient
Operations for Transformative, Efficient,
and Cost-Saving Transportation
(PROTECT) program under 23 U.S.C.
176. The FHWA recognizes that these
programs do not mandate reductions in
GHG emissions, and as such, FHWA
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does not assert authority over GHG
emissions. However, FHWA disagrees
with the commenters regarding
congressional intent as related to the
measurement of GHGs under 23 U.S.C.
150(c). Congress did not provide exact
parameters for performance measures
under 23 U.S.C. 150(c), and it did not
clarify, let alone impose restrictions on,
these parameters in BIL. Rather, FHWA
must—based on the Agency’s
expertise—determine how to structure
performance measures. As described in
this preamble and in the preamble to the
2022 NPRM, FHWA has determined that
measuring environmental performance
is vital to assessing performance on the
Interstate and non-Interstate NHS.
In addition, FHWA disagrees with the
commenters’ assertion that Congress’s
designation of mandatory performance
measures for some programs but not
others prohibits FHWA from exercising
Agency expertise to define performance
of the Interstate and non-Interstate NHS.
Although Congress did not include a
specific performance measure for GHGrelated programs in enacting 23 U.S.C.
150, Congress also decided not to define
performance under 23 U.S.C.
150(c)(3)(A)(ii)(IV)–(V) and, in the
decade since enactment of MAP–21,
Congress has not qualified FHWA’s
authority to define performance on the
NHS, even after FHWA promulgated a
GHG measure in the PM3 rule. For the
same reasons, FHWA also disagrees
with the commenters’ statements
regarding legislative history of BIL and
IRA, and in particular, the significance
that can be attributed to GHG and
environmental performance-related
language not being included in the
enacted legislation. By itself,
congressional inaction on a subject is an
unreliable indicator of legislative intent
because ‘‘several equally tenable
inferences may be drawn from such
inaction, including the inference that
the existing legislation already
incorporated the offered change.’’
Pension Benefit Guaranty Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990) (quoting
United States v. Wise, 370 U.S. 405, 411
(1962)) (internal quotation marks
omitted). In this instance, there is no
contemporaneous legislative record to
explain why language relating to
measuring GHG emissions with respect
to performance of the NHS was not
included in BIL. Moreover, BIL was
passed long after the PM3 rulemaking
was proposed and finalized. If anything,
the fact that Congress was aware of
FHWA’s prior action to promulgate a
GHG performance measure and did not
use the opportunity in BIL to amend
existing statutory language on
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performance measures or the definition
of performance on the NHS more likely
indicates that Congress intended to
leave such determinations to Agency
expertise to be handled via regulatory
authority. See id. Therefore, FHWA
rejects the commenters’ interpretation of
congressional intent to restrict FHWA’s
authority to establish measures to assess
performance of the NHS.
Comment: Commenters disagreed
with FHWA’s approach to supporting
resilience through this measure.
Commenters assert that both the NHPP
under 23 U.S.C. 119 and BIL are focused
on the physical condition of the
highway system, and FHWA must focus
on addressing physical issues with the
roads, rather than CO2 emissions.
Commenters assert that, likewise,
resilience deals with impacts on the
transportation system, rather than
impacts from emissions from the
transportation system. Commenters also
contend that CO2 regulation is the
purview of the EPA, not FHWA.
Response: The FHWA disagrees with
the commenters’ limited view of 23
U.S.C. 119’s substantial focus on
resilience and their characterization of
FHWA’s action to establish the GHG
measure. As discussed in section III
above, the NHPP is not solely focused
on the physical performance of
highways. For example, the
requirements for State asset
management plans include strategies
supporting the progress toward the
achievement of all national goals
identified in 23 U.S.C. 150(b), including
the goal to enhance the performance of
the transportation system while
protecting and enhancing the natural
environment at 23 U.S.C. 150(b)(6). See
23 U.S.C. 119(e)(2). In addition, the BIL
amended the requirements for asset
management plans’ lifecycle cost and
risk management analyses so that they
now must specifically take into
consideration extreme weather and
resilience. See 23 U.S.C. 119(e)(4)(D). In
explicitly stating that both the purpose
of the NHPP under 23 U.S.C. 119 is to
increase the resiliency of the NHS and
that environmental sustainability is an
express national goal of the Federal-aid
highway program under 23 U.S.C.
150(b), Congress clearly spoke to the
importance of addressing environmental
impacts related to the transportation
system. Assessing environmental
performance will support State and
MPO efforts to increase the resiliency of
the NHS to mitigate the cost of damages
from sea level rise, extreme weather
events, flooding, wildfires, or other
natural disasters. By addressing the
performance of the transportation
system related to the largest source of
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U.S. CO2 emissions, FHWA is
implementing Congress’s express
direction regarding NHPP goals.
Measuring environmental performance
though the GHG performance measure
will assist States to consider CO2
emissions from transportation in the
performance management framework
and help frame responses to the growing
climate crisis. Reducing GHG emissions
that are causing increases in
temperature, sea level, extreme weather
events, flooding, wildfires, and other
natural disasters should then decrease
the severity and impact of those
conditions in the future. The FHWA has
applied its expertise related to the
transportation system and found that
mitigating the cost of damage from
natural disasters also requires helping
State DOTs and MPOs address the cause
of those disasters. However, and as
discussed above, FHWA is not
regulating CO2 emissions or otherwise
mandating specific reductions.
Comment: One commenter asserted
that FHWA’s action is a broad attempt
to regulate GHGs, and Congress must
speak more clearly before FHWA may
assert it has authority to mandate that
all of the States and Puerto Rico
decrease on-road CO2 emissions in
furtherance of the Administration’s
emissions goals.
Response: The FHWA is not
mandating that States or MPOs decrease
emissions or compelling States to
undertake projects that reduce GHGs.
Consistent with the rest of the TPM
program, FHWA is setting forth a
program to measure performance on the
Interstate and non-Interstate NHS, as
directed by Congress.
Comment: One commenter stated that
FHWA should develop an
Environmental Impact Statement (EIS)
for this action because of the rule’s
wide-ranging potential impacts.
Response: The FHWA disagrees that
an EIS is appropriate for this
rulemaking. The FHWA has analyzed
this rule pursuant to the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and has
determined that it is categorically
excluded under 23 CFR 771.117(c)(20),
which applies to the promulgation of
rules, regulations, and directives. As
discussed further in Section VIII of this
preamble, FHWA does not anticipate
any adverse environmental impacts
from this rule, the purpose of which is
to inform decisionmaking about the
transportation sector’s contribution to
GHG emissions, and thereby contribute
to environmental sustainability.
Therefore, a categorical exclusion is
appropriate for this rulemaking and no
further NEPA approvals are required.
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Comments on the Appropriateness of
the Proposed Measure
Comment: A large number of
commenters questioned the
appropriateness of the proposed
measure to assess GHG emissions. A
small number of these commenters
asserted the proposed measure is not
appropriate for rural States since rural
residents need to drive further to access
essential goods and services and
alternative transportation modes are
limited. In addition, several other
commenters asserted the proposed
measure does not account for exogenous
factors beyond the control of State DOTs
and MPOs, including population
growth, economic growth, goods
movement, and State and local policies,
among others. Relatedly, many
commenters recommended using a percapita measure in addition to or instead
of a measure of total emissions. A
smaller number of commenters
recommended using a measure of VMT
to demonstrate the impact of
transportation decisions on changes in
travel behavior. Some commenters
stated that the measure places an
unequal burden on rural States and
States with growing populations.
Other commenters addressed
technical considerations underlying the
suitability of the proposed measure. A
couple of commenters indicated the
measure does not account for
fluctuations to NHS mileage resulting
from roadway reclassifications, and one
commenter asserted the measure does
not account for regional variations in
vehicle fleet efficiency or roadway
speeds. Several commenters
recommended the proposed measure
consider lifecycle processes, such as
electricity used by electric vehicles and
embodied carbon associated with
vehicle manufacture and transportation
infrastructure. One commenter
recommended that the measure account
for excess fuel consumption associated
with poor pavement condition.
Response: The FHWA has retained
the GHG performance measure proposed
in the NPRM, the percent change in
tailpipe CO2 emissions on the NHS
compared to the reference year, because
of its simplicity, ease of calculation, and
reliance on data States already report to
FHWA. The FHWA acknowledges
commenters’ observations that the GHG
footprint of on-road transportation
extends beyond tailpipe CO2 emissions
and includes lifecycle processes
supporting to generation of electricity
used by EVs, the production of
transportation fuels, the manufacture of
vehicles, and the construction and
maintenance of transportation
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infrastructure. However, FHWA believes
that addressing these factors in a GHG
measure would lead to more
complicated and potentially less reliable
calculations.
In addition, FHWA believes that the
measure sufficiently accounts for
several of the factors cited by
commenters, such as the effect of
roadway speed, changes vehicle fleet
efficiency, and the effect of pavement
condition on fuel efficiency, all of
which are represented through Statereported fuel sales that are used to
calculate the measure. The FHWA also
believes that a GHG measure is
preferable to a VMT-only measure,
which would serve an indirect proxy for
GHG emissions that would not account
for the benefits of highway operations
and pavement strategies implemented
by State DOTs, electrification of the
vehicle fleet, or other improvements in
vehicle efficiency. The GHG measure
FHWA is establishing also supports
tracking of progress toward GHG
reduction goals. This would not be the
case with a measure that normalizes the
effect of population or economic growth
or excludes truck CO2 emissions. The
FHWA notes that regulation does not
prevent State DOTs and MPOs from
using additional performance measures
at the local level.
The FHWA rejects the concept that
this measure places an unequal burden
on rural States and States with rapidly
growing populations, as States with
various conditions can implement this
measure to help evaluate performance.
The FHWA also reiterates that this
rulemaking does not set any specific
targets or require any GHG reductions.
The commenters’ assertions about
disadvantaging rural areas falsely
assume that this measure mandates
GHG reductions and penalizes States
and MPOs that fail to achieve
reductions. Neither the proposal, nor
the final rule, do any such thing.
Therefore, FHWA disagrees with the
commenters’ assertions about unequal
burden on rural States and States with
rapidly growing populations.
Comments on Transportation Agencies’
Influence on GHG Emissions
Comment: Several commenters
addressed State DOTs’ and MPOs’
ability to reduce GHG emissions year
over year through planning and
programming of transportation projects.
Several commenters asserted State
DOTs and MPOs have limited ability to
materially reduce GHG emissions. These
commenters noted that performance
against the GHG measure is affected by
many different factors outside the
control of State DOTs and MPOs,
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85377
including a State government’s policies,
population and economic growth, and
fuel prices, among others. They also
assert that transportation planning and
programming is a multiyear process and
State DOTs and MPOs cannot have a
meaningful impact on GHG emission
reductions year over year.
In contrast, a large number of
commenters asserted that transportation
agency decisions influence GHG
emissions, and that a GHG measure is
important for evaluating the impact of
these decisions. Many commenters
asserted that establishing a nationwide,
uniform performance measure would
ensure consistency in tracking progress
and help State DOTs, MPOs, and FHWA
to identify the most effective programs,
strategies, and projects for carbon
reduction. The commenters also
asserted that the proposed performance
measure would inform State DOT and
MPO efforts to carry out performancebased planning and project selection,
consistent with statutory requirements.
Several commenters asserted that the
decisions that State DOTs make in terms
of designing infrastructure and
constructing the built environment have
a profound influence on travel behavior.
A large number of comment campaign
letters also asserted that a GHG measure
is important for understanding the longterm impact of transportation
investments on GHG emissions and to
better connect transportation decisions
with climate goals.
Response: Upon review of the
comments, FHWA has retained the
measure as proposed. The FHWA agrees
with commenters asserting that a GHG
measure is useful for evaluating the
impact of transportation investments
and other policies on GHG emissions.
The FHWA also agrees that
transportation investments have a
meaningful impact on travel behavior,
and that transportation agencies’
policies and programs involving vehicle
electrification, highway operations, and
roadway maintenance practices provide
further opportunities to reduce GHG
emissions in absence of changes to
travel behavior. The BIL provides more
than $27 billion in Federal funding to
help State DOTs and MPOs achieve
their GHG reduction targets. This total
includes $6.4 billion in formula funding
to State DOTs and local governments
through the CRP to support a range of
projects designed to reduce on-road CO2
emissions; $5 billion to State DOTs
through the National Electric Vehicle
Infrastructure Formula Program to build
out a national electric vehicle charging
network; $2.5 billion in competitive
funding to State DOTs and local
governments to deploy electric vehicle
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and alternative fuel infrastructure, $7.2
billion for the Transportation
Alternatives Set-Aside that State DOTs
and local governments can use to carry
out pedestrian and bicycle
infrastructure projects, and more than
$5 billion to ensure the nation’s transit
systems are tackling the climate crisis.16
In addition, transportation agencies
have for decades been able to use
Federal-aid Highway Program funds to
support projects that reduce GHG
emissions, including transit
improvements, congestion reduction
and traffic flow improvements, freight
and intermodal initiatives, idle
reduction technologies, travel demand
management, carsharing, carpooling and
vanpooling, and bike and pedestrian
facilities. Given the range of options
available to transportation agencies to
reduce GHG emissions and the
significant financial resources provided
by BIL, FHWA rejects the premise that
transportation agencies have limited
capacity to influence GHG emissions.
The FHWA also believes that it is
important for the measure to address
total tailpipe CO2 emissions on the NHS
rather than normalizing this value by
population or other factors, since
atmospheric CO2 concentrations are
ultimately influenced by the total
quantity of CO2 emissions produced.
The FHWA believes a measure
addressing total emissions supports a
whole-of-government approach to
addressing climate change by
implementing a consistent measure of
CO2 emissions on the NHS at the
National, State, and metropolitan levels.
The FHWA is requiring State DOTs and
MPOs to establish declining GHG
emissions targets. Contrary to the
commenters’ assertions FHWA is not
requiring States to set specific declining
target levels or achieve actual
reductions in GHG emissions. State
DOTs and MPOs have flexibility to set
targets that are appropriate for their
communities and that work for their
respective climate change and other
policy priorities, as long as the targets
are declining.
Comments on Incentives and
Disincentives
Comment: A large number of
commenters addressed the creation of
incentives or disincentives to strengthen
the proposed GHG measure. The vast
majority of these comments stated that
16 See Biden-Harris Administration Takes Step
Forward to Combat Climate Change, Announces
Proposed Transportation Greenhouse Gas Emission
Reduction Framework, available at https://
highways.dot.gov/newsroom/biden-harrisadministration-takes-step-forward-combat-climatechange-announces-proposed.
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the proposed rule would be
strengthened by including clear and
specific incentives for those States and
regions that meet their targets, such as
providing extra points in competitive
grant programs, favorable local match
requirements, or expediated project/
application review processes. Other
commenters recommended restricting
use of Federal transportation funds to
projects that reduce GHG emissions in
States and regions that did not meet
their targets. A couple of commenters
opposed creation of incentives or
disincentives.
Response: Under 23 U.S.C. 145, the
Federal-aid highway program is a
federally assisted, State-administered
program; FHWA does not determine
which eligible projects, as selected by
States, shall be financed. The FHWA
cannot broadly limit the use of
transportation funds in the manner
recommended by commenters, and
FHWA does not have the authority to
restrict transportation funding for States
that fail to meet their targets. However,
BIL includes new programs that will
help States and MPOs fund projects that
reduce GHG emissions, which in turn,
could assist them in meeting the targets
that they set. This topic is further
discussed in Section III this preamble.
States and MPOs can additionally
leverage their own programs to reduce
GHG emissions by accounting for
expected GHG impacts in the analysis
and selection of transportation projects.
Comments on Penalties
Comment: Several commenters
addressed the possibility of penalties
being associated with the proposed
measure. A few of these commenters
sought clarification on whether FHWA
intends to apply a penalty (including
penalties associated with failure to
comply with Federal requirements
under 23 CFR 1.36). Other commenters
requested the final rule include a
section specifying that no penalties
would be applied for not meeting a
target. Other commenters asserted that
FHWA is in fact providing a penalty for
failing to reduce GHGs based on the
Agency’s authority under 23 CFR 1.36.
Response: There are no specific
penalties for failing to achieve GHG
targets. Rather, consistent with existing
NHPP performance measures, if
significant progress is not made for the
target established for the GHG measure
in 23 CFR 490.507(b), the State DOT
must document the actions it will take
to achieve that target no later than in its
next biennial report, but is encouraged
to do so sooner. Significant progress
toward achieving NHPP performance
targets is further described in 23 CFR
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490.109. The FHWA did not propose
specific penalties for failure to achieve
performance targets, and is not
finalizing any such penalty. Failure to
achieve significant progress for this
measure, as defined in 23 CFR 490.109,
will also not trigger any penalties. State
DOTs and MPOs that set a declining
target but fail to achieve their targets can
satisfy regulatory requirements by
documenting the actions they will take
to achieve that target in their next
biennial report. The FHWA does not set
or approve the State DOT’s or MPO’s
targets.
Comments on Exemptions
Comment: Several commenters
recommended various entities be
exempt from the proposed measure for
various reasons. The majority of these
commenters asserted that rural States
have limited options to reduce
transportation GHG emissions through
transit and other strategies that reduce
VMT and should accordingly be
exempted from the measure. A few
commenters recommended that States
and MPOs in attainment with the
National Ambient Air Quality Standards
be exempted from the GHG measure.
One commenter asserted that the GHG
measure does not recognize that rural
States produce fewer GHG emissions
than urban areas.
Response: The FHWA considered the
comments suggesting certain entities be
exempt from the GHG measure and
declines to do so. Greenhouse gas
emissions are produced on all NHS
facilities. Once released, CO2 and other
GHGs take many years to leave the
atmosphere, resulting in increasing
global atmospheric concentrations of
CO2 emissions regardless of where they
are produced. Urban and rural areas
both contribute to increased carbon
pollution in the atmosphere, and FHWA
believes this rule will provide both with
the tools to reduce carbon pollution.
This is different from criteria pollutants,
which last no more than weeks in the
atmosphere and only impact local or
regional air quality.
The FHWA also rejects commenters’
suggestion that rural States have limited
options to reduce transportation GHG
emissions. If these States determine that
transit and other measures to reduce
VMT are not effective means of
influencing GHG emissions, they have a
wide range of alternative strategies and
funding programs available. This
includes both formula funding and
discretionary grants to deploy electric
vehicle charging infrastructure and
thereby increase EV adoption, funding
to improve roadway operations, and
asset management practices to maintain
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roads and reduce excess fuel
consumption from poor road condition
surface. The FHWA reiterates that the
final rule does not require rural States,
or any State, set targets at a specific
level or to reduce GHG emissions. The
final rule also does not impose any
penalties on a State for failing to meet
its GHG targets. Therefore, there is no
justification to exempt rural States, and
doing so would run counter to the
purpose of this rule, which is to provide
consistent and timely information about
on-road mobile source emissions on the
NHS to support better informed
planning choices to reduce GHG
emissions or inform tradeoffs among
competing policy choices.
Comments on Benefits of a GHG
Measure
Comment: A large number of
commenters addressed potential
benefits from the proposed GHG
measure. Several commenters, including
State DOTs, that have independently
measured and reported GHG emissions
asserted that a GHG performance
measure can inform planning and
decision making, including project
prioritization and statewide
transportation planning processes. A
few of these commenters additionally
asserted that implementation of the
proposed GHG measure as part of TPM
would complement existing GHG
reduction efforts. Additional benefits
identified by commenters included:
empowering State and local leaders to
better align their transportation
decisions with climate goals, enhancing
transparency and accountability of
investment decisions, supporting a
consistent and coordinated approach to
reducing GHG emissions across all
levels of government, and supporting
national GHG emission reduction goals
in accordance with E.O. 13990 and E.O.
14008.
By contrast, several commenters
questioned the benefits of the proposed
measure. Several commenters asserted
that DOTs and MPOs have limited
influence over GHG emissions. One
commenter asserted that the proposed
measure would not help agencies
identify projects to reduce GHG
emissions and a couple of commenters
asserted that the measure would not
impact transportation decisions.
Another commenter stated this is
because the proposed rule does not
propose a method for requiring
continually decreasing GHG emissions
and does not penalize noncompliance.
Response: The FHWA is establishing
a GHG emissions performance measure
in response to an increasingly urgent
climate crisis and to improve the
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transportation sector’s GHG
performance, which has lagged behind
other major U.S. sectors. The EPA
estimates of GHG emissions date back to
1990, and over that time the
transportation sector has gone from
being the third largest to the largest
source of U.S. GHG emissions. The
FHWA agrees with commenters that
establishing a GHG performance
measure is a critical step in improving
transportation system performance and
supporting national GHG reduction
goals. A key premise underlying the
GHG measure is that measuring and
reporting complete, consistent, and
timely information on CO2 emissions
from on-road mobile sources will
provide opportunities for all levels of
government and the public to make
more informed decisions that consider
transportation’s contribution to climate
change and opportunities to reduce
GHG emissions. The FHWA believes
that by establishing a uniform GHG
measure, it is more likely that GHG
emissions will be consistently and
collaboratively considered by State
DOTs and MPOs through transportation
planning and performance management.
The FHWA also agrees with the
comments enumerating the benefits of
establishing the GHG measure.
The FHWA disagrees that State DOTs
and MPOs have limited influence over
GHG emissions. As noted earlier, BIL
provides more than $27 billion in
Federal funding to help State DOTs and
MPOs achieve their GHG reduction
targets, and States have additional
ability to influence GHG emissions
through highway operations and
roadway maintenance. The FHWA also
disagrees with commenters asserting
that a GHG measure would not inform
planning and investment decisions. As
noted in comments from agencies that
have implemented their own GHG
measures, performance-based
approaches that include GHG emissions
have been successfully used to guide
planning and investment decisions.
Comments on Burden Posed by a GHG
Measure
Comment: Several commenters
identified concerns about the impact of
the proposed rule on State DOTs and
MPOs. Several commenters asserted that
the proposed rule would duplicate
established and effective programs such
as fuel economy standards established
under the Corporate Average Fuel
Economy (CAFE) Program, and
transportation CO2 estimates published
by EPA and the Department of Energy
(DOE). Other commenters asserted the
implementation of calculating and
tracking GHG emissions would be
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85379
overly burdensome, and that the costs of
complying with declining targets would
be significant for some States. A few
commenters additionally asserted that
the proposed GHG measure would not
be sufficient for making program- and
project-level investment decisions.
Response: FHWA disagrees that the
measure established under this rule
would place undue burden on States
and MPOs. The FHWA also disagrees
that the GHG measure would duplicate
other Federal programs addressing
transportation GHG emissions. A key
purpose of the GHG measure is to
provide an information source to help
State DOTs, MPOs and other agencies
set targets, monitor trends, and evaluate
the impact of transportation investments
and other strategies to reduce on-road
GHG emissions. This is a different
function from the CAFE program, which
regulates GHG emissions rates for new
vehicles and is not intended to account
for factors such as changes in travel
demand, congestion, and other factors
affecting total on-road GHG emissions.
While Federal agencies such as EPA and
DOE publish estimates of total
transportation CO2 emissions, these data
are not disaggregated to reflect on-road
activity, and also lag the publication of
FHWA fuel use data by up to a year.
Since FHWA’s GHG measure
specifically addresses CO2 on-road
activity and utilizes FHWA’s data for
the estimated fuel volumes distributed
shortly after its publication, it will serve
as a comprehensive and timely
information source to support
transportation decision making and to
track progress toward national goals.
Several State DOTs that have
independently implemented their own
on-road tailpipe CO2 measure observed
that all State DOTs already compile the
necessary data as part of existing
reporting obligations. These
commenters asserted that the labor hour
assumptions from the RIA are
reasonable, that neither the estimation
of the measure nor target setting would
result in significant burdens for State
DOT staff.
Lastly, FHWA disagrees that the cost
of complying with declining targets will
be burdensome to transportation
agencies. The BIL provides over $27
billion in Federal funding to help State
DOTs and MPOs achieve the declining
GHG targets that they will set under this
rule. The rule does not impose
compliance costs associated with
achieving declining targets since the
rule does not require that emissions
actually decrease or establish any
penalties in the event that declining
targets are not achieved.
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§ 490.101
Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations
Definitions
Comments on the Measure’s
Relationship to National GHG Goals
Comment: A large number of
commenters addressed the proposed
performance measure’s relationship to
the national GHG goals. Several
commenters asserted that the proposed
performance measure would support the
national GHG goals and expressed
support for this connection. A smaller
number of commenters asserted that the
proposed performance measure would
not support the national goals, as
meeting them through the targets is
unattainable/unrealistic, would require
actions beyond State DOT/MPO
authority, and would not match the
timeline needed to see improvements
from BIL-funded projects.
In addition, several of these
commenters asked for clarifications
related to the Administration’s national
goals for reducing GHG emissions. One
commenter asked whether the declining
targets must demonstrate a 50–52
percent reduction in on-road CO2
emissions relative to 2005 levels by
2030 and net-zero on-road CO2
emissions by 2050, or whether the
targets must only aid in meeting the
Administration’s goals. One commenter
requested additional guidance on how
to set targets consistent with the
national GHG goals for 2030 and 2050,
and another requested guidance on how
to translate the proposed GHG targets,
which would be expressed relative to
2021 levels, to the Administration’s
goals, which are expressed relative to
2005 levels. Another commenter
requested clarification on the meaning
of net-zero, and asked whether FHWA
will provide mechanisms to offset
remaining emissions to achieve net-zero
by 2050.
Response: Upon considering public
comments, FHWA recognizes that the
reference to net-zero targets and
national GHG goals in the NPRM may
have caused confusion, and FHWA has
removed the definition of net-zero from
23 CFR 490.101 and the requirement in
23 CFR 490.105(e)(10) that targets for
the GHG measure ‘‘demonstrate
reductions toward net-zero targets.’’ In
the final rule, FHWA is not requiring
State DOTs and MPOs to set any
specific declining targets or achieve
national GHG goals. Declining targets
are not required to align with the
Administration’s goal for the U.S. to
reduce CO2 emissions 50–52 percent
below 2005 levels by 2030 and achieve
net-zero emissions economywide by
2050, in accordance with national
policy established under E.O.s 13990
and 14008. Rather, FHWA believes
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these national goals can provide a useful
roadmap for State DOTs and MPOs as
they consider how their targets fit into
a longer timeframe of emission
reductions.
§ 490.105 Establishment of
Performance Targets
Comments on Establishing Declining
Targets
Comment: A large number of
commenters addressed the requirement
to establish declining targets. The
majority of these commenters were
opposed to this requirement. Most of
these commenters asserted that a
declining target is inconsistent with 23
U.S.C. 150, which provides States with
discretion in setting performance
targets. Commenters asserted that States
should set data-driven targets based on
their own circumstances and analysis,
which is not possible when declining
targets are required. Commenters also
asserted that a requirement for declining
targets would reflect FHWA’s
influencing the selection of projects,
with States facing pressure to select
projects to support declining targets
without commensurate funding through
BIL to implement this type of change.
One commenter noted this would be
the only measure to which MPOs would
be expected to aid States in
documenting declining targets, and
requested that FHWA provide MPOs a
5-year grace period before requiring the
declining targets to be established.
In contrast, several commenters
supported the requirement to establish
declining targets. These commenters
asserted that such a requirement would
require States to set targets that will
result in improvement, as opposed to
other performance measures, and
support urgent progress on reducing
GHG emissions from transportation.
These commenters also asserted that the
declining target requirement would not
impinge on States’ authority to set their
own targets.
A few commenters recommended that
FHWA require State DOTs and MPOs to
provide their underlying assumptions
and rationale for vehicle emissions rates
and VMT, as well as to clarify in the
final rule that targets should be based
not only on projections for improvement
in vehicle efficiency, but also on
projections for reductions in emissions
because of VMT-reducing investments,
system efficiency enhancements, and/or
other strategies.
Response: After considering these
comments, FHWA has retained the
requirement for State DOTs and MPOs
to set declining targets as proposed in
the NPRM and as further discussed in
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this final rule. State DOTs and MPOs
that have NHS mileage within their
State geographic boundaries and
metropolitan planning area boundaries,
respectively, are required under the rule
to establish declining targets for
reducing CO2 emissions generated by
on-road mobile sources. Given the
urgency of responding to the climate
crisis, FHWA believes it is
inappropriate for State DOTs and MPOs
to delay establishing targets. The FHWA
also believes States and MPOs have the
tools necessary to meet these timelines.
State DOTs will establish targets no later
than February 1, 2024, and MPOs are
required to establish targets no later
than 180 days after the State DOT
establishes their targets. See 23 CFR
490.105(e)(1)(ii) and 490.105(f)(1).
The requirement for State DOTs and
MPOs to establish declining targets for
tailpipe CO2 emissions on the NHS is
vital given the urgency of the climate
crisis. Declining targets will help State
DOTs and MPOs plan toward reductions
in GHG emissions and make Federal
infrastructure investment decisions that
reduce climate pollution, a principle set
forth in E.O. 14008 (86 FR 7626). As
discussed in the NPRM, FHWA is not
prescribing what declining targets
would look like in each State or MPO.
State DOTs and MPOs have the
flexibility to set targets that work for
their respective policies and priorities,
so long as the targets are declining.
Under the rule, State DOTs and MPOs
have discretion in setting an appropriate
declining target as informed by
complete, consistent, and timely State
and local information on GHG
emissions from on-road mobile source
emissions. The rule provides State
DOTs and MPOs with the tools to
consider GHG emissions in making
transportation decisions and imposes no
penalties on States and MPOs that do
not meet their targets; therefore, FHWA
rejects the characterization that State
DOTs and MPOs are being pressured or
otherwise required to select any specific
project based on this measure.
The FHWA disagrees with the
assertion that States and MPOs cannot
set data-driven targets based on their
own circumstances and analyses when
the targets must be declining. States and
MPOs will use the appropriate data to
set declining targets, as informed by
their policies and priorities. State DOTs
and MPOs will use the data to evaluate
current performance and predict future
performance when establishing
declining targets.
In addition, FHWA has removed the
proposed requirement for declining
targets to demonstrate reductions
toward net-zero targets. For additional
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information on FHWA’s decision not to
include net-zero in the final rule, see the
discussion under Comments on the
Measure’s Relationship to National GHG
goals, in the Section-by-Section
Discussion of § 490.101.
Comments on Alternative Target Setting
Frequencies
Comment: A large number of
commenters provided feedback related
to a question raised in the NPRM about
introducing a new requirement for State
DOTs and MPOs to establish 8- and 20year targets at the beginning of each 4year performance period. Many
commenters favored adding long-term
targets. Commenters in favor of the
requirement noted that long-term targets
can function as policy goals to allow for
more forward-looking evaluation of
emissions trajectories. The other
commenters supporting this change
asserted that long-term targets better
align with FHWA planning
requirements (Long Range
Transportation Plan (LRTP),
Metropolitan Transportation Plan
(MTP), State Transportation
Improvement Program (STIP),
Transportation Improvement Program
(TIP)), and would create greater
visibility and accountability.
In contrast, a small number of
commenters opposed adding long-term
targets. A few of these commenters
noted that they support establishing
long-term targets as a best practice, but
not as a requirement. Others responded
that long-term targets would be too
burdensome to develop and would lead
to speculative results that will not add
value to the target setting process.
Response: The FHWA considered the
comments citing the benefits of
establishing long-term targets but
declines to do so at this time to remain
consistent with the existing TPM
framework used for the other NHPP
measures. Providing consistency with
other measures minimizes the
complexity of the TPM requirements. It
also allows the measures with biennial
targets to be considered in relation to
each other, which can help illustrate
how these measure areas are part of a
single transportation system. State DOTs
and MPOs can voluntarily establish
longer-term targets in the manner that
best aligns with their individual policies
and plans.
Comments on MPO Joint Targets
Comment: Several commenters
expressed concern about the proposed
requirement for joint UZA targets.
Almost all of these commenters
otherwise supported the proposed
measure but recommended removing
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the joint UZA target from the final rule.
They identified a variety of concerns,
particularly that a joint UZA target
would be duplicative of the requirement
for metropolitan planning area targets,
thereby adding administrative burden
for both MPOs and State DOTs. They
also asserted that a joint UZA target
would be overly complex, especially for
planning agencies that are part of
multiple UZAs or for those that share
borders with a planning agency that
serves a different population, such as
rural and urban. A few commenters
suggested alternatives to the joint UZA
target: removing the target based on
MPO boundaries and only requiring
targets based on UZA; only requiring
targets on either MPO boundaries or
those based on UZAs; or limiting the
targets based on MPO boundaries and
on UZA boundaries only to MPOs and
UZAs of a certain size, regardless of if
there is a joint target or only
metropolitan planning area targets.
Response: The FHWA has considered
these comments and decided to retain
the requirement for joint UZA targets.
The FHWA disagrees with comments
suggesting a joint UZA target is
duplicative of the requirement for
metropolitan planning area targets. The
FHWA believes the requirement to
establish a joint UZA target would
encourage collaboration across MPO
boundaries through coordinated systems
and region-based approaches to
reducing GHG emissions. The FHWA
believes this collaboration is useful
regardless of the MPO or UZA size.
Therefore, FHWA has retained the
requirement for MPOs to collectively
establish a single joint 4-year target for
each UZA that contains NHS mileage
and that is overlapped by the
boundaries of two or more metropolitan
planning areas. As provided in 23 CFR
490.105(f)(10), joint targets are also
required to be declining targets for
reducing CO2 emissions from on-road
mobile sources, and these targets are
established in addition to each MPO’s
individual target for their metropolitan
planning area. The targets established
are required to be a quantifiable target,
which means a value must be used.
To support implementation of this
final rule, FHWA is publishing in the
docket applicability tables with the
MPOs required to establish joint targets
in accordance with 23 CFR
490.105(d)(4) and 490.105(f)(10). As
with all other MPO targets, and
consistent with 23 CFR 490.105(f)(1),
joint targets are to be established no
later than 180 days after the MPOs’
respective State DOT(s) establish their
targets. For additional information on
the timeline for establishing joint
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85381
targets, see the discussion under
Comments on MPO Target Setting
Frequency in this section.
Comments on MPO Target Setting
Frequency
Comment: A small number of
commenters provided feedback on the
frequency of MPO targets. A couple of
these commenters recommended that
the final rule only include 4-year targets
for MPOs. Another requested that the
final rule add 2-year targets for MPOs to
increase coordination with States on the
same schedule. In addition, one
commented that the final rule should
leave out both the 2- and 4-year targets,
and instead adopt 8- and 20-year targets.
Response: Upon consideration of the
comments, FHWA has retained the
requirement for MPOs to establish 4year targets as previously established in
23 CFR 490.105(f). The FHWA believes
the benefits associated with requiring
MPOs to establish additional 2-year
targets for the GHG measure would not
exceed the additional burden to MPOs.
The FHWA believes that introducing 8and 20-year targets that would only
apply to the MPOs and would only
apply to a single measure would add
confusion and complexity that would
not be offset by meaningful benefits.
The final rule makes no changes to
the MPO target establishment schedule,
and MPOs will continue to report their
baseline performance and progress
toward their targets in their system
performance report. See 23 CFR
490.107(c)(2). An MPO will establish
targets for this measure, including any
required joint targets, no later than 180
days after their respective State DOT(s)
establishes their 4-year target for the
measure. See 23 CFR 490.105(f)(1). The
MPOs will report their established GHG
targets, including any joint targets, to
the State DOT in a manner that is
documented and mutually agreed upon
by both parties. See 23 CFR
490.107(c)(1).
Comments on Technical Assistance
Comment: A large number of
commenters requested technical
assistance from FHWA to assist in the
implementation of the proposed
performance measure. Examples cited
by these commenters included tools and
best practices for modeling the
emissions impacts of various types of
projects; strategies/pathways/roadmaps
to reduce tailpipe CO2 emissions
(especially those with other social and
economic impacts, including for
disadvantaged communities); factors to
consider in setting targets; and
recommended targets to meet national
GHG reduction goals.
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Response: The FHWA believes the
existing technical assistance, technical
tools, and guidance available through
FHWA’s TPM and Energy and
Emissions Websites, as well as resources
provided by the National Highway
Institute (NHI), AASHTO, AAMPO, and
other publicly available sources provide
the information necessary for State
DOTs and MPOs to establish targets for
the GHG measure. In addition to these
existing resources, FHWA recently
launched an Every Day Counts (EDC)
innovation to help transportation
agencies quantify GHG emissions and
set targets for reducing GHG emissions
through transportation planning. As this
measure is implemented, FHWA will
continue to consider how best to
support State DOTs and MPOs in
implementing all the TPM requirements
in 23 CFR part 490 and will provide
technical assistance on an ongoing
basis.
Comments on Benchmarks
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Comment: A few commenters
suggested that FHWA provide
intermediate benchmarks for States to
use to ensure they are on track to meet
the 2030 national GHG reduction goal.
Response: As noted earlier, while
FHWA encourages State DOTs and
MPOs to consider the Administration’s
GHG emissions reduction and net-zero
goals when establishing targets, FHWA
has removed the proposed requirement
for State DOTs to align their declining
targets with the Administration’s GHG
reduction goals. State DOTs and MPOs
have the flexibility to set targets that
work for their respective policies and
priorities, so long as the targets are
declining. For example, a State DOT
might set targets that would result in
steady, incremental progress toward netzero emissions, or that achieve
aggressive early GHG emissions
reductions, or be more gradual at first
and become more aggressive later.
Therefore, FHWA declines to provide
intermediate benchmarks at this time.
However, State DOTs may voluntarily
establish longer-term targets to serve as
intermediate benchmarks to help them
align their short-term emission
reduction targets with their long-term
GHG reduction goals.
§ 490.107
Targets
Reporting on Performance
Comments on Reporting Start Date
Comment: Many commenters
provided feedback on the reporting start
date of October 1, 2022. All these
commenters oppose this date, which
they indicated would precede the
NPRM public comment period, which
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closed on October 13, 2022. One
commenter recommended that the rule
be revised to either (1) not require States
to set two-year targets for the 2022–2025
time period, and have States set their
four-year targets for the 2022–2025 time
period as part of the October 1, 2024
mid-performance period progress report;
or (2) delay implementation altogether
until the 2026–2029 performance
period. Other commenters
recommended a reporting start date in
2023, with the expectation that they
would have six months to one year from
the final rule for target setting/
coordination before their first reporting.
Other commenters recommended
October 1, 2024 or October 1, 2028,
indicating that these dates would
correspond with other performance
measures. A few commenters suggested
a phased approach, such as reporting
reference year data and their four-year
target in the October 1, 2024 Mid
Performance Period Progress Report,
and then continuing with two- and fouryear targets in the next performance
period.
Response: Upon consideration of
comments, FHWA determined that State
DOTs and MPOs will establish or adjust
targets every two years beginning in
2024. Targets will first be established for
this measure by State DOTs and
reported to FHWA in a State Initial GHG
Report, no later than February 1, 2024.
See 490.105(e)(1)(ii) and 490.107(d).
The information provided by State
DOTs in the 2024 State Initial GHG
Report will be considered the 2024 Mid
Performance Period Progress Report. See
490.107(b)(2)(i). State DOT reporting
will follow an October 1st cycle
beginning in 2026 to align with other
measure reporting requirements.
Recognizing the urgency of addressing
the climate crisis, FHWA is establishing
an initial date that is as early as
practicable and will reflect the best
available data. The FHWA is also
establishing a February 1, 2024
reporting date for the first GHG targets
to increase the opportunities for the
targets to be used to help guide overall
Federal investments available through
the many programs available in BIL that
can reduce CO2 emissions. The February
1, 2024 reporting date is supportive of
a 2022 GHG measure reference year
since the 2022 VMT data are expected
to be finalized by November 30, 2023.
The FHWA made changes throughout
the regulation in response to the
February 1, 2024 target establishment
and reporting date, and they are
summarized here. Consistent with all
other NHPP measures, the GHG measure
will have a 4-year performance period
that will begin January 1, 2022. See 23
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CFR 490.105(e)(4)(i) and
490.105(e)(4)(i)(C). The mid-point of the
performance period is 2024, and the end
of the performance period is 2026. The
FHWA acknowledges that this date is in
advance of this final rule’s effective
date. However, the start of the
performance period merely serves as the
benchmark that begins the TPM
schedule. This measure does not
generate any requirements for State
DOTs or MPOs in advance of the
effective date. The first GHG targets will
be due on February 1, 2024, after the
effective date of this rulemaking. The
FHWA believes it is appropriate to
begin the performance period on
January 1, 2022 to align with the TPM
program and to facilitate a mid-point of
the performance period in 2024, and to
align with TPM’s existing 4-year
performance period.
Since initial targets will be
established so close to the mid-point,
FHWA determined that 2-year targets
would not be required. See 23 CFR
490.105(10)(i)(A) and 490.105(e)(4)(iii).
Section 490.105(e)(10)(i)(B) requires that
4-year targets for this measure be
established, and section 490.105(e)(1)(ii)
requires they be established no later
than February 1, 2024. Section
490.107(d) was added to create the State
Initial GHG Report to receive the State
DOT’s initial 4-year GHG target.
The State Initial GHG Report
requirements are similar to the Baseline
Performance Period Report. In the State
Initial GHG Report, State DOTs will
provide the 4-year target, the basis for
the target, the baseline data, which is
the reference year for this performance
period only, the relationship with other
performance expectations, the data
points used to calculate the GHG metric,
described in 23 CFR 490.511(c), and the
value calculated. The data used to
calculate the metric for the reference
year for the Initial GHG Report is
specified in section 490.107(d)(2).
Information on the GHG measure will be
submitted as part of the biennial reports
starting with the 2026 Full Performance
Period Progress Report. See 23 CFR
490.107(b)(1), (b)(2), and (b)(3).
For additional information on how
the initial target establishment
requirements associated with February
1, 2024 will impact the significant
progress determination done after the
2024 Mid Performance Period Progress
Report, see the discussion under
Comments on Significant Progress
Timing, in the Section-by-Section
Discussion of section 490.109.
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Comments on MPO Reporting
Frequency and Process
Comment: Many commenters
responded to the MPO reporting
requirements and many proposed
revisions to the requirements. Many of
these commenters noted that the final
rule should require MPOs to report
every two years on progress towards the
performance measure, asserting that
MPOs have a significant impact on
transportation investment decisions in
metropolitan planning areas, and
therefore, should be as transparent as
States in this regard. Similarly, another
commenter suggested that the final rule
could encourage but not require MPO
reporting every two years given the
additional burden of biennial reporting.
A couple of commenters requested
that the final rule not require additional
reporting by MPOs outside of the system
performance report so as not to increase
the reporting and tracking burden on
MPOs and State DOTs.
Response: The FHWA considered the
comments and determined the existing
reporting requirements for MPOs in 23
CFR 490.107(c), which FHWA has
successfully implemented for other
performance measures, are appropriate
for reporting on the GHG measure. The
MPOs are required to report on
performance within their metropolitan
transportation plan (MTP), which are
developed every 4 or 5 years. See 23
CFR 450.324(d). Biennial reporting by
MPOs would necessitate an additional
report outside of the MTP. At this time,
FHWA does not believe that adding a
new process for reporting on
performance specifically for the GHG
measure would provide benefits that
would exceed the increased burden
from additional reporting requirements.
Therefore, FHWA has not made any
changes in the final rule based on the
comments. The FHWA has retained the
requirement for MPOs to report progress
toward their GHG target in their system
performance report in the metropolitan
plan.
For related information on the MPO
target establishment timeline, see the
discussion under Comments on MPO
Target Setting Frequency in the SectionBy-Section Discussion for section
490.105.
For additional information related to
MPO reporting, see the discussion
under Comments on MPO Report
Content in this section.
Comments on MPO Report Content
Comment: One commenter noted that
there does not appear to be a
requirement for the MPO to report the
value of the measure (percent reduction
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in tailpipe CO2 emissions on the NHS)
for their MPA or any required joint UZA
targets (for those UZAs that overlap
multiple MPOs). In addition, a
commenter asked for clarification that
reporting of the MPO metric calculation
method is not required when an MPO
supports the State targets. Another
commenter noted that if an MPO
chooses to support the State targets,
reporting the MPO region total appears
unnecessary. Commenters noted that for
all the other performance measures (e.g.,
safety measures bridge and pavement
condition measures, and system
performance and reliability measures),
there is no requirement for MPOs to
calculate and report metric or measure
values to the State DOT(s).
Response: The FHWA has not made
any changes in the final rule based on
these comments. The FHWA believes
that the requirement for MPOs to report
the metrics used to calculate the
measure and the metric calculation
method is justified because MPOs can
use a range of different approaches to
calculate the metric, even if they choose
to adopt State targets. For this measure,
MPOs are required to report all targets
they are required to establish, including
any joint targets, to the State DOT in a
manner that is documented and
mutually agreed upon by both parties.
See 23 CFR 490.107(c)(1). In the system
performance report, MPOs will report
baseline performance for this measure
and progress toward the achievement of
their targets. They will also report the
calculation of annual tailpipe CO2
emissions for the NHS for the period
between the reference year and the first
system performance report that includes
the GHG measure information.
Subsequent reports will cover the
period between the current report and
the last report. In addition, the MPO
will report a description of their metric
calculation method(s).
The FHWA has removed the proposed
requirement for MPOs to report tailpipe
CO2 emissions on all roads. The reason
for removing this requirement is
described in response to the comments
on MPO metric reporting, in the
discussion for section 490.511.
As a new requirement of the rule, in
the system performance report, FHWA
is requiring MPOs using metric
calculation methods not specified in
section 490.511(d) to include
information demonstrating the
method(s) has valid and useful results
for measuring transportation related
CO2. The reason for this requirement is
provided in the discussion under
Comments on Mutual Agreement of
Metric Calculation Method by State
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85383
DOTs and MPOs, in the Section-bySection Discussion for section 490.511.
Consistent with 23 CFR 450.226 and
23 CFR 450.340, the MPO’s MTP and
TIP must meet the Performance-Based
Planning and Programming (PBPP)
requirements of the planning rule for
this performance measure by no later
than 2 years after the effective date of
this rule.
Comments on Biennial Reporting Cycle
Comment: A few commenters
provided general feedback on the State
DOT biennial reporting cycle and
recommended that the final rule not
require two-year reporting for State
DOTs.
Response: The FHWA has not made
any changes in the final rule based on
the comments. Section 150(e) of Title
23, U.S.C., requires State DOTs to report
on performance to FHWA on a biennial
basis. The FHWA considered the
comments and determined the existing
biennial reporting cycle established in
23 CFR 490.107(b), which FHWA has
successfully implemented for other
performance measures, will support
State DOTs as they implement the new
GHG measure within the context of the
overall TPM program. This two-year
reporting for State DOTs is consistent
with other performance measures,
which minimizes the incremental
burden since State DOTs do not need to
develop an additional reporting process
and cycle for this one measure. Twoyear reporting is also useful in helping
State DOTs progress toward a longerterm goal and can reflect short-term
actions such as operational
improvements. Such short-term actions
are typically outside the control of
MPOs, which consequently have 4-year
reporting requirements.
Comments on Alternative Progress
Reporting Requirements
Comment: A couple of commenters
suggested additions to the reporting
requirements. One requested a provision
for qualitative reporting to describe
progress on the measure, to be able to
report trends and overall actions and
strategies that contribute to lower sales
of fossil fuel used for on-road vehicles.
Another requested requiring State DOTs
and MPOs to identify planned actions to
reduce emissions and actions that have
been implemented to reduce emissions.
Response: The FHWA has not made
any changes in the final rule based on
the comments. The reporting
requirements in 23 CFR 490.107
represent the minimum requirements
for State DOTs and MPOs under the
TPM regulations. The requirements in
the final rule do not prevent State DOTs
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and MPOs from providing more detailed
qualitative reporting on progress and
planned actions at the State and local
level.
Comments on Publicizing GHG
Reporting Information
Comment: A large number of
commenters provided recommendations
intended to increase the transparency
and accessibility of reporting on
performance. Some commenters
recommended that FHWA publish a
regular report on State DOT and MPO
progress, with a couple of these
commenters suggesting that such a
report should be issued within three
months of FHWA receiving the data and
be made available in an interactive
format that allows viewers to see both
detailed and summary data.
Commenters noted that having the data
publicly available would also help
stakeholders to hold State DOTs and
MPOs accountable for progress toward
their GHG targets.
Response: The FHWA has not made
any changes in the final rule based on
the comments. As part of FHWA’s
commitment to transparency, FHWA
regularly publishes the State DOT’s
biennial reports and FHWA’s significant
progress determinations on its website
as part of the publicly available TPM
Dashboards, and the GHG measure will
be included in the TPM Dashboards.
The State performance dashboards and
reports are available at https://
www.fhwa.dot.gov/tpm/reporting/state/.
State DOTs and MPOs are required to
report on progress as outlined in this
final rule and described in 23 CFR
490.107. External reporting by the U.S.
DOT on funds spent in specific areas is
outside the scope of this rulemaking.
§ 490.109 Assessing Significant
Progress Toward Achieving the
Performance Targets for the National
Highway Performance Program and the
National Highway Freight Program
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Comments on Consequences of Not
Achieving Significant Progress
Comment: A small number of
commenters addressed the requirement
that State DOTs document the actions
they will take should they fail to
demonstrate significant progress toward
their targets. Some of the commenters
asserted such a requirement would not
influence future target achievement.
Some of these commenters
recommended the final rule include
requirements for State DOTs to provide
more detailed information on projects or
programs to reduce emissions. Such
information would identify future
actions to reduce emissions, and
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include estimated emissions reductions,
timelines for implementation and
funding sources. One commenter
recommended the requirement be
revised to require a State DOT to
document actions that have been taken
in support of targets and identify
barriers preventing target achievement.
One commenter asked for clarification
on whether the documented actions
would be binding for MPOs.
Response: The FHWA has not made
any changes in the final rule based on
the comments. The FHWA does not
intend to use the significant progress
determination process to be punitive or
to encourage State DOTs to establish
easy-to-achieve targets. Establishing
targets and assessing progress is
intended to encourage State DOTs and
MPOs to establish data-supported
targets that consider anticipated
resources and potential uncertainties
and to provide data-supported
explanations of performance changes. If
a State DOT does not make significant
progress, FHWA expects the State DOT
to provide data-supported explanations
for not achieving significant progress,
and their plan to achieve said progress
in the future.
The FHWA determined that creating
additional requirements related to the
consequences of not achieving
significant progress toward achieving
GHG performance targets would create
potential burdens that outweigh the
potential benefits of such efforts. The
documentation requirements in 23 CFR
490.109(f)(1)(v) represents the minimum
information State DOTs are federally
required to provide. State DOTs can
provide additional information in their
biennial reports if they feel it supports
their discussion of target achievement,
or significant progress.
Information provided by the State
DOT in response to the requirement in
23 CFR 490.109(f)(1)(v), does not, on its
own, require that an MPO within that
State select a specific project.
Comments on Significant Progress
Criteria
Comment: A small number of
commenters recommended that
significant progress be defined more
narrowly. Commenters suggested the
significant progress determination be
changed to require performance better
than the level that would be achieved
through reductions in vehicle emission
rates alone, define a minimum
percentage of a target that must be
reached, use a trend based on multiple
performance periods, or use some
combination of such factors.
Response: The FHWA considered
these comments and declines to apply a
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narrower definition of significant
progress. The existing criteria at 23 CFR
490.109(e)(2) for determining significant
progress are well understood and have
been applied successfully for the other
NHPP and NHFP measures identified in
23 CFR 490.105(c)(1)–(6). Maintaining
consistency with the existing significant
progress determination criteria will
ensure consistency with the other
measures and simplify the process.
Accordingly, FHWA will determine that
a State DOT has made significant
progress toward the achievement of
each 2-year or 4-year applicable GHG
target if (1) the actual performance level
is better than the baseline performance,
or (2) the actual performance level is
equal to or better than the established
target, as defined in 23 CFR
490.109(e)(2).
Comments on Significant Progress
Timing
Comment: One commenter
recommended that FHWA not require a
significant progress determination for
the first performance period since
transportation emissions in initial years
would reflect planning and investment
decisions made prior to the final rule.
Response: In response to this and
other comments and in line with 4-year
targets being reported February 1, 2024,
FHWA will not assess significant
progress toward the achievement of 2year targets for the GHG measure
following the 2024 Mid Performance
Period Progress Report. State DOT
planning and investment decisions
follow a cyclical process and should be
informed by State DOT progress toward
achieving its GHG targets. As a result,
FHWA believes it to be beneficial to
begin significant progress
determinations for the GHG measure as
early as is reasonable. The FHWA will
first assess significant progress toward
the achievement of targets for the GHG
measure after the 2026 Full Performance
Period Progress Report (due October 1,
2026).
In response to the initial target
establishment requirements related to
February 1, 2024, when conducting the
significant progress determination after
the 2026 Full Performance Period
Progress Report, the performance for the
reference year shall be used as the
baseline performance, as described in 23
CFR 490.105(e)(10)(i)(C).
For additional information on the
target establishment requirements
associated with February 1, 2024, see
the discussion under Comments on
Reporting Start Date, in the Section-bySection Discussion of section 490.107.
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§ 490.503
Applicability
Comments on Roadway Applicability
Comment: A large number of
commenters recommended that State
DOTs and MPOs be required to set
targets and track GHG emissions from
travel on all public roads and not just
the NHS. These comments asserted that
the NHS represents only about 5 percent
of total U.S. roadways, and just over 50
percent of vehicle miles traveled. They
also asserted that setting targets and
tracking emissions from travel on all
public roads would provide a more
comprehensive understanding of
transportation emissions and allow for
more comprehensive solutions.
Response: The FHWA is finalizing as
proposed that this measure will assess
performance on the NHS. The FHWA
acknowledges that the NHS only
represents a limited set of U.S.
roadways, and a measure for all public
roads would capture more emissions
from the transportation sector. However,
as detailed in Section III of this
preamble, FHWA is promulgating this
rulemaking under 23 U.S.C.
150(c)(3)(A)(ii)(IV)–(V), which requires
that the Secretary establish measures for
States to use to assess the performance
of the Interstate System and the nonInterstate NHS. The statute does not
provide authority to measure
performance on public roads other than
the Interstate and non-Interstate NHS.
Thus, the GHG measure under 23 CFR
490.105(c)(5), and associated
requirements, must be based on
performance on the Interstate System
and non-Interstate NHS. However, State
DOTs and MPOs can choose to
implement other measures to support
their programs, including measures that
apply to all roads, in a manner that best
aligns with their individual policies and
plans.
§ 490.505
Definitions
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Comments on Reference Year
Comment: Many commenters,
including those both supporting and
opposed to the proposed measure,
provided feedback on the use of
calendar year (CY) 2021 as the reference
year, with all asserting that it would not
be appropriate because of the lingering
effects of the COVID–19 pandemic on
travel in 2021. Commenters noted that
using CY 2021 would set the baseline
artificially low as VMT and fuels sales
continue to rebound and would make it
difficult for States to meet declining
targets. Commenters provided one or
more of the following suggestions as an
alternative to using CY 2021 as the
reference year: 2022 or a year further in
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the future; 2019 as a pre-pandemic year;
2005 as a reference to the national GHG
targets; or the 5-year average as the
baseline.
Response: The FHWA agrees with the
commenters’ observation that the
COVID–19 pandemic reduced travel
demand, motor fuel consumption, and
CO2 emissions in 2021 as compared to
pre-pandemic levels, and that using
2021 as a reference year would establish
a lower-than-normal basis for evaluating
future performance. In response to these
concerns, FHWA is establishing 2022 as
the reference year for the GHG measure.
In 2022, travel activity is estimated to
have nearly rebounded to pre-pandemic
levels, with FHWA’s December 2022
Traffic Volume Trends report showing
cumulative mileage of 3.17 trillion miles
in 2022, compared with 3.27 trillion
miles in 2019.17 2022 is also the most
recent year for which finalized VMT
estimates will be available to use in
calculating the State DOTs’ GHG metric
and measure.
Comments on Definition of GHG
Emissions
Comment: Several commenters
requested clarification on the definition
of GHG emissions provided in the
NPRM. These commenters asserted that
definition proposed at 23 CFR 490.505
goes beyond tailpipe CO2 emissions to
include methane, nitrous oxides, and
hydrofluorocarbons. Commenters
asserted that this broader definition
could open the door to further
regulation without a rulemaking.
Response: The definition of GHG
included in the NPRM is a common,
scientific definition of GHG emissions,
which include CO2 in addition to other
gases such as methane (CH4), nitrous
oxide (N2O), and hydrofluorocarbons
(HFCs). According to EPA data, CO2
accounts for approximately 97 percent
of on-road GHG emissions when
weighting the 100-year global warming
potential of CO2 and other greenhouse
gases.18 The FHWA concluded that
because approximately 97 percent of onroad GHG emissions are from CO2,
including non-CO2 gases in the measure
17 See Office of Highway Policy Information,
Federal Highway Administration, Traffic Volume
Trends December 2022, available at https://
www.fhwa.dot.gov/policyinformation/travel_
monitoring/22dectvt/; Traffic Volume Trends
December 2019, available at https://
www.fhwa.dot.gov/policyinformation/travel_
monitoring/19dectvt/.
18 See EPA Inventory of U.S. Greenhouse Gas
Emissions and Sinks: 1990–2021, table 2–13,
available at https://www.epa.gov/ghgemissions/
inventory-us-greenhouse-gas-emissions-and-sinks1990-2021. EPA’s estimates weight CO2 and other
greenhouse gases on their 100-year global warming
potentials, as specified in the Intergovernmental
Panel on Climate Change Fifth Assessment Report.
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85385
would not yield significant benefits.
Any changes to the GHG measure,
including any expansion to the
applicability of this measure beyond
tailpipe CO2 emissions, would follow
notice and comment rulemaking.
§ 490.509
Data Requirements
Comments on CO2 Emissions Factor
Comment: Several commenters
provided feedback on the proposal for
FHWA to provide a standard CO2
emissions factor for each fuel type. A
few of the commenters said FHWA
should establish CO2 emissions factors,
with one recommending that FHWA
provide optional supplemental fuel
blend information and State-specific
carbon intensity values based on Low
Carbon Fuel Standards reporting.
Several commenters requested that
FHWA consider accommodating
alternative emissions factors for fuel
blends when States and MPOs provide
credible alternatives. A few commenters
requested additional clarity on CO2
emissions factors, including what they
will look like, how they will change
over time, how they will be accessed,
whether they will vary based on
location, and for some specific
examples. One commenter stated there
is a need to incorporate the biogenic
nature of CO2 from bioethanol into the
emissions factor calculation, with one
commenter expressing general concerns
about the inputs to EPA’s Motor Vehicle
Emissions Simulator (MOVES) Model.
Response: As proposed in the NPRM,
FHWA will publish uniform CO2
emissions factors for each fuel type to be
used by all States in calculating the
State DOT’s metric for the GHG
measure. The FHWA believes that the
requirement for States to use a uniform
factor, for each fuel type will ensure
consistency and comparability of States’
estimates of tailpipe CO2 emissions.
The FHWA recognizes that some
States have implemented or are
considering the implementation of low
carbon fuels programs to reduce the
overall carbon intensity of
transportation fuels. However, since
these programs often target reductions
in the GHG emissions from well-topump processes, FHWA believes that
including emission factors for
alternative fuel blends as part of a
tailpipe-only measure would be overly
complex. The FHWA recognizes that
CO2 emissions estimates for the
transportation sector as reported in the
EPA’s Inventory of U.S. GHG Emissions
and Sinks do not include CO2 emissions
associated with biofuels, such as the
ethanol component of E10 and other
gasoline blends, since it is assumed that
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the combustion of the biogenic
component of these fuels is recycled as
biofuel crops and forests regenerate. The
FHWA will consider EPA’s accounting
practice for addressing biofuel CO2
emissions as it develops the standard
CO2 emissions factors to support this
final rule. The FHWA will publish these
factors on its website by August 15th of
each biennial reporting year.
Comments on Data Availability Date
Comment: A small number of
commenters requested that FHWA
provide data to calculate the system
performance earlier than the annual
date of August 15, with a few specifying
that this should be no later than May 1
of each year or, if no joint UZA target
is required, then no later than July 1.
One commenter indicated that the
prior year’s data in Table VM–3—
Annual Vehicle Miles and Table MF–
21—Motor-Fuel Use has been published
in mid-late October in the past, which
would conflict with an October 1
deadline for report submissions.
Response: The FHWA appreciates
commenters’ interest in having data
available as early as possible to support
State biennial reporting on October 1 of
each even year. While estimates of
annual motor fuel volumes distributed
are not expected to be finalized by
FHWA until August 15th, States and
MPOs can develop preliminary
estimates and forecasts of GHG
emissions using the values in FHWA’s
Monthly Motor Fuel Reported by States
publication, available on the website of
FHWA’s Office of Highway Policy
Information, and the State-reported fuel
sale information.
In response to the comments
requesting data earlier than proposed
and FHWA’s reexamination of when the
VMT data will be available, FHWA
revised 23 CFR 490.509(h) as well as 23
CFR 490.109(d)(1)(vi) and (d)(1)(vii) to
ensure that State DOTs are able to use
their most accurate VMT data to
estimate the NHS share of total on-road
tailpipe CO2 emissions when reporting
actual performance and discussing
progress. These changes were made in
response to a comment noting that
HPMS VMT data may not be finalized
by August 15, as proposed in the NPRM.
The final rule allows State DOTs to
use their best available VMT data that
represents the prior calendar year when
reporting performance and their GHG
measure and metric information in the
biennial reports. See 23 CFR 490.509(h).
Related changes were made to the State
DOT metric reporting requirements the
biennial reports. See
490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and
(b)(3)(ii)(I). Because the VMT data used
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by the State DOT when preparing the
biennial report may not be known to
FHWA, State DOTs are required to
provide the values they use to calculate
the reported metric, and a description of
the data source(s) used for the VMT
information they report. Section
490.511(f)(2) was revised to be
consistent with the metric reporting
requirements in 23 CFR
490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and
(b)(3)(ii)(I).
The change to 23 CFR 490.509(h)
necessitated changes to the data FHWA
will use in the significant progress
determination. In 23 CFR
490.109(d)(1)(vi) and (d)(1)(vii) FHWA
has specified that for the significant
progress determination, baseline
performance will be based on data from
HPMS as of November 30th of the
baseline report year, and the reference
year will be based on HPMS data as of
November 30, 2023. The FHWA also
added section 490.109(e)(4)(vii) to
clarify that the data used must be
accepted by FHWA by the dates
specified in section 490.109(d)(1).
Comments on Accessibility of Fuel
Sales Data
Comment: A small number of
commenters expressed concern at
MPOs’ inability to access the Fuels &
FASH dataset and requested more
guidance on how the data could be
accessed. One commenter suggested
using publicly available State data
instead. Another requested clarification
on how a State will calculate the
aggregate fuel consumption by fuel type.
Response: States are responsible for
submitting preliminary estimated totals
of monthly fuel volumes distributed for
gasoline and ‘‘special fuel’’ (which
primarily consists of diesel) which are
due to FHWA 90 days following the end
of a given month. These estimates are
made publicly available for each State
as part of FHWA’s Monthly Motor Fuel
Report, accessible on the Office of
Highway Policy Information website.
Final estimated fuel for a given year are
adjusted to account for: (1) updated
monthly fuel volumes distributed for
gasoline and ‘‘special fuel’’ provided by
the States, and (2) non-highway use of
fuels. These estimates will be available
by August 15 of each reporting year (i.e.,
the following year).
Comments on Non-Highway Fuel Use
Comment: A couple of commenters
asserted a portion of fuel sales are
consumed off the roadway network,
which is a circumstance that is likely
more prevalent in rural areas. These
commenters asserted that off-highway
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use of fuels would not be accounted for
in fuel use data provided by FHWA.
Response: The FHWA uses a
modeling process to estimate the
portion of gasoline that is distributed
and used for non-highway purposes.
These data are then used to adjust the
gasoline volume data submitted by the
States to identify the volumes that are
used specifically for on-highway
purposes. In addition, FHWA instructs
all States not to report non-highway use
of special fuels, including red dyed
diesel and kerosene that is untaxed and
intended for non-highway applications.
Comments on GHG Emissions Analysis
Techniques
Comment: A commenter asserted that
the effectiveness of the proposed rule
would be limited by current traffic
modeling practices. The commenter
asserted that the final rule would benefit
from improved data collection and
analysis techniques, a more
standardized approach to documenting
projects within the STIP/TIP and
ensuring a requirement that emissions
from induced demand be included in
modeling.
Response: The FHWA believes the
data and methods specified in the
NPRM are appropriate to evaluate
performance related to the GHG
measure. State CO2 estimates are
calculated by multiplying gallons of fuel
taxed by each State by the CO2
emissions for each fuel type. The
FHWA’s Fuels & FASH database-will
serve as the source of fuel use data since
it is a national, established, and
validated source of fuel use information
as reported by States. The FHWA
believes that Fuels & FASH provides
advantages for estimating fuel
consumption and CO2 emissions
compared to model-based approaches,
which by necessity are built on
simplified mathematical representations
of transportation networks, travel
choices, vehicle fuel efficiency, and
other factors. Fuels sales data implicitly
accounts for travel demand and fuel
consumption resulting from
transportation policies and investments,
including behavioral changes following
highway construction (sometimes
referred to as ‘‘induced demand’’). The
FHWA recognizes that fuel sales may
not precisely align with the amount of
fuel combustion and CO2 emissions
within the boundaries of a State,
particularly since drivers may cross
State lines to purchase fuel. However,
FHWA believes the data and methods
for the State DOT metric calculation
achieve an appropriate balance between
simplicity and accuracy and will
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provide a useful way to monitor trends
over time.
The FHWA recognizes that MPOs lack
a data source comparable to Fuels &
FASH and therefore must estimate CO2
emissions using an approach different
from the States. The FHWA believes
that it is appropriate to leave the data
and metric calculation methods to the
discretion of MPOs, and that it would be
unreasonable to specify data collection
standards or modeling practices,
particularly since some MPOs do not
employ technical staff or support travel
and emissions models. However, FHWA
has updated the final rule to require
MPOs that choose a metric calculation
approach not enumerated in section
490.511(d) to demonstrate the method
has valid and useful results.
Finally, State DOTs and MPOs may
employ travel models, emissions
models, and other analytics to support
transportation planning, programming,
and the development of GHG reduction
targets. In so doing, they can consider
the degree to which their models are
sensitive to the travel and emissions
impacts of GHG reduction strategies and
other decisions, such as future highway
capacity. However, FHWA believes it is
not appropriate to specify the models or
other practices that States and MPOs
use for these purposes as part of the
final rule.
For additional information related to
the CO2 factor, see the discussion under
Comments on CO2 Emissions Factor, in
this section.
§ 490.511 Calculation of National
Highway System Performance Metrics
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Comments on State DOT GHG Metric
Calculation Method
Comment: Several commenters
provided input on the calculation of the
proposed GHG performance measure. A
few commenters expressed support for
using existing national data sets for fuel
sales and VMT data, while a few
comments offered proposed revisions.
Alternatives suggested included
allowing States to propose alternative or
additional data sets or methodologies
and requiring States to use one of the
methods offered for MPOs in the
proposed rule (i.e., MOVES or FHWA’s
Energy and Emissions Reduction Policy
Analysis Tool (EERPAT)).
Response: The FHWA has retained
the State DOT metric calculation
method proposed in the NPRM. This
approach is based on fuel use data that
is already collected by States and
reported to FHWA, ensuring
comparability between State estimates.
As noted in response to the previous
comment, FHWA believes this approach
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provides a more accurate estimate of
total fuel use and CO2 emissions than
model-based approaches. The FHWA
recognizes that this approach includes
some simplifying assumptions,
particularly by assuming a similar rate
of GHG emissions on NHS and non-NHS
facilities per VMT. While it is expected
that emissions rates would differ
somewhat between NHS- and non-NHS
facilities, FHWA believes that this
simplifying assumption is justified since
the difference between emissions rates
on NHS- and non-NHS facilities would
be largely constant from year-to-year
and similar across States, providing a
consistent way to monitor performance.
For additional information on how
the MPO’s metric calculation method is
selected and documented, see the
discussion under Comments on Mutual
Agreement on MPO Metric Calculation
Method by State DOTs and MPOs,
which is part of this section.
Comments on MPO GHG Metric
Calculation Method
Comment: Several commenters
addressed MPO metric calculation
methodology and reporting.
Approximately half of these
commenters supported preserving
MPOs’ flexibility in calculating the GHG
metric. In contrast, a couple of
commenters supported requiring MPOs
to use the MOVES model to calculate
GHG emissions, while one asserted that
FHWA should provide the data needed
for MPOs to calculate a metric for the
GHG measure. In addition, one
commenter questioned the requirement
for MPOs to calculate and report
tailpipe CO2 emissions on all roads,
noting the MPO may choose a
methodology that allows for calculating
the GHG metric for NHS roads directly.
Response: Upon consideration of
comments, FHWA is preserving MPOs’
flexibility to use a range of different
approaches in calculating the metric for
the GHG measure. The FHWA
recognizes that technical capabilities
vary across MPOs and that some MPOs
may not support a travel demand model
or be required to use EPA’s MOVES
model. The FHWA also appreciates the
observation that some MPOs may
choose to calculate tailpipe CO2
emissions on the NHS facilities directly.
This is inherently different from State
DOTs, which are required to calculate
CO2 emissions for all roads before
estimating the proportion of emissions
associated with the NHS. Accordingly,
in the final rule, FHWA has removed
the requirement for MPOs to report
tailpipe CO2 emissions for all roads.
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85387
Comments on Mutual Agreement on
MPO Metric Calculation Method by
State DOTs and MPOs
Comment: A small number of
commenters addressed the requirement
for the MPO metric calculation method
to be mutually agreed upon by both the
State DOT and the MPO. A few
commenters opposed the requirement
for the MPO to obtain concurrence on
the metric calculation method.
Similarly, one commenter
recommended that an MPO be allowed
to use, without the need to obtain
additional approvals, any regional data,
models, and methodologies that is
already used to measure GHG for
purposes of air quality conformity
modeling or other GHG performance
measures. One commenter
recommended the metric calculation
method be covered in the ‘‘written
provisions’’ section of the system
performance report.
Response: The FHWA agrees with
commenters that the requirement for
MPOs and States to agree on the MPO’s
metric calculation method creates
burden for both groups. In response to
the comments, FHWA is not requiring
the MPO’s metric calculation method to
be mutually agreed upon by the State
DOT and MPO, but MPOs are
encouraged to coordinate with the State
DOT on the data used to the maximum
extent practicable.
The FHWA has instead added a
requirement to section 490.107(c)(2)(ii)
that if the metric calculation method
used by the MPO is not specified in
section 490.511(d), the MPO must
demonstrate the method’s validity and
usefulness in measuring transportationrelated CO2 emissions in the system
performance report. The FHWA believes
that this change will be sufficient to
ensure accountability in the methods
MPOs use to calculate the GHG metric,
absent the requirement for mutual
agreement on the method with State
DOTs. Consistent with FHWA’s
collaboration and coordination
requirements in 23 CFR part 450, FHWA
encourages MPOs and the State DOTs to
work together in identifying methods,
tools, and data the MPO’s can use to
calculate the MPO’s metric for the GHG
measure.
For additional information related to
reporting of the MPO’s metric, see the
discussion under Comments on MPO
Report Content, in the Section-bySection Discussion for section 490.107.
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Comments on the RIA
Comments on the Estimated Cost of the
Regulation
Comment: Many commenters
discussed cost estimates from the RIA.
Many commenters asserted that the RIA
underestimated direct implementation
costs of the measure and provided
examples of costs that they believe were
underestimated. Examples cited include
the time and level of expertise needed
to establish targets, conduct biennial
reporting, conduct stakeholder
engagement, develop and maintain
models, and achieve coordination
between DOTs, MPOs, and State
agencies. Several commenters also
asserted that achieving national GHG
reduction goals would require
significant changes to transportation
investments that would carry significant
monetary costs and would require
significant time to implement. A few
commenters also asserted that achieving
GHG reductions through strategies to
reduce on-road travel activity would
create further social and economic costs
including increased congestion and
travel times. Another commenter
asserted that reducing on-road GHG
emissions would reduce the
consumption of traditionally taxed fuels
and require the establishment of a
different highway finance revenue
model that is not based on the
consumption of fossil fuels.
In contrast, several commenters
asserted that the burdens of the
proposed performance measure would
be negligible. These commenters noted
that States and MPOs have already
established processes and partnerships
under the TPM framework and that staff
efforts to quantify and report GHG
emissions on the NHS would not be
expected to create significant cost
burden and are in line with existing
performance measures.
Other commenters noted that work
performed in support of the GHG
measure would not support other
aspects State DOTs’ and MPOs’
missions in ways that would mitigate
net costs of the proposed rule. One State
DOT also asked for clarification on how
the total costs of compliance in time and
cost is calculated.
Response: The FHWA has reexamined
the RIA considering public comments
and any updated information, and
FHWA has determined that the RIA cost
estimates should be primarily
unchanged from the RIA in support of
the NPRM, with a small reduction in
estimated burden based on the
elimination of the NPRM requirement
for States and MPOs to estimate CO2
emissions for all roads in addition to the
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NHS. The FHWA recognizes
commenters’ observations that many
State DOTs and MPOs will need to
develop capacity to address GHG
emissions through interagency
coordination, stakeholder engagement,
and the consideration of strategies to
support GHG reduction targets. The
FHWA believes that these examples of
costs were addressed through the NPRM
RIA labor hour estimates for section
490.105, which assume that the level of
effort for setting targets in the first
reporting period will be approximately
twice that of subsequent reporting
periods. The FHWA has included in the
RIA a break-even analysis of the CO2
reductions from the rule that would be
necessary to equal its costs. This
analysis determined that the required
reductions would represent a very small
proportion of total transportation CO2
emissions.
In addition, FHWA reiterates State
DOTs and MPOs will not experience
costs from achieving GHG reduction
targets since FHWA is not requiring
specific declining target values be
established, nor is it mandating
penalties for failing to meet the targets
established.
The FHWA recognizes that changes in
fuel use may impact highway funding.
However, as this rulemaking does not
require any reductions in fuel use, this
issue is outside of the scope of this
rulemaking, nor does FHWA have any
authority to change the statutory
funding scheme established by
Congress.
Comments on the Use of the Social Cost
of Carbon
Comment: Several commenters raised
concerns about the use of the social cost
of carbon dioxide (SC–CO2) to conduct
a ‘‘break-even’’ analysis of CO2
reductions required for the proposed
measure to equal its costs. These
commenters asserted that use of the
Interagency Working Group (IWG) on
Social Cost of Greenhouse Gases 19
‘‘interim’’ social costs of GHGs overstate
damages from GHG emissions. In
contrast, several commenters noted the
social cost of carbon likely significantly
underestimates the actual cost of
climate damages caused by GHG
emissions because important categories
19 Interagency Working Group on Social Cost of
Greenhouse Gases, U.S. Government. ‘‘Technical
Support Document: Social Cost of Carbon, Methane,
and Nitrous Oxide Interim Estimates under
Executive Order 13990’’ (February 2021), available
at https://www.whitehouse.gov/wp-content/
uploads/2021/02/TechnicalSupportDocument_
SocialCostofCarbonMethaneNitrousOxide.pdf.
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of climate damages cannot be
quantified.
Response: As discussed further in the
RIA for the final rule, the IWG on Social
Cost of Greenhouse Gases published
interim estimated for the SC–CO2 per
ton of carbon emissions for each year
from 2020 to 2050. As noted by the
IWG’s technical support document
prepared under E.O. 13990, the SC–CO2
framework in principle can capture all
climate change impacts, including (but
not limited to) changes in net
agricultural productivity, human health
effects, property damage from increased
flood risk natural disasters, disruption
of energy systems, risk of conflict,
environmental migration, and the value
of ecosystem services. The SC–CO2
estimates used in the break-even
analysis for this rule were developed
over many years, using transparent
process, peer-reviewed methodologies,
the best science available at the time of
that process, and with input from the
public. However, many important
categories of climate damages cannot
currently be fully quantified and
monetized, and so the SC–CO2 values
very likely underestimate the climate
damages caused by GHG pollution. The
IWG’s technical support document
further notes that the SC–CO2 as
estimated should reflect the societal
value of reducing CO2 emissions by one
metric ton, and that the SC–CO2 is the
theoretically appropriate value to use in
conducting economic analyses of
policies that affect CO2 emissions.20 The
DOT is an IWG member, and FHWA has
reviewed the technical support
document and has determined that the
recommended values are appropriate for
use in the break-even analysis in the
RIA.
VIII. Rulemaking Analyses and Notices
A. Executive Order 12866 (Regulatory
Planning and Review), Executive Order
13563 (Improving Regulation and
Regulatory Review), and DOT
Regulatory Policies and Procedures
The Office of Management and Budget
(OMB) has determined that this
rulemaking is a significant regulatory
action within the meaning of E.O.
12866, as amended by E.O. 14094
(‘‘Modernizing Regulatory Review’’),
because it raises legal or policy issues
for which centralized review would
meaningfully further the President’s
20 Interagency Working Group on Social Cost of
Greenhouse Gases, U.S. Government. ‘‘Technical
Support Document: Social Cost of Carbon, Methane,
and Nitrous Oxide Interim Estimates under
Executive Order 13990’’ (February 2021), available
at https://www.whitehouse.gov/wp-content/
uploads/2021/02/TechnicalSupportDocument_
SocialCostofCarbonMethaneNitrousOxide.pdf.
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priorities or the principles set forth E.O.
12866. The rule will not have an annual
effect on the economy of $200 million
or more. The rule will not adversely
affect in a material way the economy,
any sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
territorial, or tribal governments or
communities. In addition, the changes
would not interfere with any action
taken or planned by another agency and
would not materially alter the budgetary
impact of any entitlements, grants, user
fees, or loan programs. As described
above, FHWA estimates that total costs
associated with this rule, between 2023
and 2032, will be $10.8 million,
discounted at 7 percent, and $12.7
million discounted at 3 percent (these
figures are estimated in 2020 dollars).
On an annual basis, the total costs
would be $1,535,045 discounted at 7
percent and $1,494,406 discounted at 3
percent. The FHWA is unable to
quantify the benefits of the rulemaking;
consequently, FHWA describes the
expected benefits qualitatively in the
preamble and the RIA. These benefits
include potentially significant
reductions in GHG emissions resulting
from decisions and actions based on
greater consideration of GHG emissions
in transportation planning, public
awareness of GHG emissions trends, and
better information on the impact of
transportation decisions on GHG
emissions. While many of the benefits
in the proposed rule are difficult to
quantify, FHWA believes that the
benefits justify the costs. As discussed
in greater detail in the RIA, FHWA
estimates that benefits of this rule
would exceed its costs with a reduction
of less than 0.01 percent of the average
annual amount of CO2 emissions from
U.S. transportation sources in 2019,
based on a range of discount rates used
to estimate the social cost of CO2 and
the 7 and 3 percent discount rates used
to estimate the total costs of the final
rule. The full RIA is available in the
docket.
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 rule on small entities and
has determined that it is not anticipated
to have a significant economic impact
on a substantial number of small
entities. The rule will affect two types
of entities: State governments and
MPOs. State governments are not
included in the definition of small
entity set forth in 5 U.S.C. 601.
Metropolitan planning organizations are
considered governmental jurisdictions,
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and to qualify as a small entity they
would need to serve fewer than 50,000
people. See 5 U.S.C. 601(5).
Metropolitan planning organizations are
designated to serve UZAs with
populations of 50,000 or more. See 23
U.S.C. 134(d)(1). Therefore, FHWA
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
C. Unfunded Mandates Reform Act of
1995
This rule would not impose unfunded
mandates as defined by the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, 109 Stat. 48). The Unfunded
Mandates Reform Act of 1995 (section
202(a)) requires us to prepare a written
statement, which includes estimates of
anticipated impacts, before proposing
‘‘any rule that includes any Federal
mandate that may result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted annually for inflation) in any
one year.’’ The current threshold after
adjustment for inflation is $177 million,
using the most current (2022) Implicit
Price Deflator for the Gross Domestic
Product. This rule will not result in the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector, of $177 million or more
in any one year (2 U.S.C. 1532). In
addition, the definition of ‘‘Federal
Mandate’’ in the Unfunded Mandates
Reform Act excludes financial
assistance of the type in which State,
local, or Tribal governments have
authority to adjust their participation in
the program in accordance with changes
made in the program by the Federal
Government. The Federal-aid highway
program permits this type of flexibility.
D. Executive Order 13132 (Federalism
Assessment)
This rule has been analyzed in
accordance with the principles and
criteria contained in E.O. 13132, and
FHWA has determined that this rule
will not have sufficient federalism
implications to warrant the preparation
of a federalism assessment. The FHWA
also has determined that this rule will
not preempt any State law or State
regulation or affect the States’ ability to
discharge traditional State governmental
functions.
E. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act
of 1995 (PRA) (44 U.S.C. 3501, et seq.),
Federal agencies must obtain approval
from OMB for each collection of
information they conduct, sponsor, or
require through regulations. The FHWA
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85389
has determined that this rule contains
collection of information requirements
for the purposes of the PRA. This rule
introduces a GHG performance measure
that will be implemented as part of the
overarching TPM regulations in 23 CFR
part 490, which includes State DOT
reporting on performance. The
collection of State DOT reports in
support of 23 CFR 490.107 is covered by
OMB Control No. 2125–0656.
The FHWA has analyzed this rule
under the PRA and has determined the
following:
Respondents: 52 State DOTs.
Frequency: Single State Initial GHG
Report, and ongoing biennial reporting.
Estimated Average Burden per
Response: Approximately 88 hours to
complete and submit the required
report, or 44 hours annually.
Estimated Total Annual Burden
Hours: Approximately 2,288 hours
annually.
In addition, MPO coordination and
reporting activities are covered by OMB
Control No. 2132–0529, Metropolitan
and Statewide and Nonmetropolitan
Transportation Planning.
F. National Environmental Policy Act
The FHWA has analyzed this rule
pursuant to the NEPA and has
determined that it is categorically
excluded under 23 CFR 771.117(c)(20),
which applies to the promulgation of
rules, regulations, and directives.
Categorically excluded actions meet the
criteria for categorical exclusions under
the Council on Environmental Quality
regulations and under 23 CFR
771.117(a) and normally do not require
any further NEPA approvals by FHWA.
This rule will establish in FHWA
regulations a performance measure for
on-road CO2 emissions on the NHS for
use by States and MPOs in measuring
transportation performance. The FHWA
does not anticipate any adverse
environmental impacts from this rule,
the purpose of which is to inform
decisionmaking about the transportation
sector’s contribution to GHG emissions,
and thereby contribute to environmental
sustainability; moreover, no unusual
circumstances are present under 23 CFR
771.117(b).
G. Executive Order 13175 (Tribal
Consultation)
The FHWA has analyzed this rule in
accordance with the principles and
criteria contained in E.O. 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments.’’ The rule
will implement statutory requirements
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V)
to establish measures for States to assess
the performance of the Interstate and
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non-Interstate NHS, which FHWA
interprets to include environmental
performance. This measure establishes
requirements only for States and MPOs
that receive Title 23 Federal-aid
highway funds and have NHS mileage
within their jurisdictions; it would not
have 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. Accordingly,
the funding and consultation
requirements of E.O. 13175 do not apply
and a Tribal summary impact statement
is not required.
As noted above, FHWA anticipates
the benefits from this rulemaking
include potentially significant
reductions in GHG emissions resulting
from decisions and actions based on
greater consideration of GHG emissions
in transportation planning by States and
MPOs, public awareness of GHG
emissions trends, and better information
on the impact of transportation
decisions on GHG emissions. Although
this rulemaking does not apply to
Tribes, FHWA expects that Tribes
would benefit from potential reductions
in GHG emissions that result from State
and MPO implementation of this
rulemaking.
H. Executive Order 12898
(Environmental Justice)
The E.O. 12898 requires that each
Federal Agency make achieving
environmental justice part of its mission
by identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects of its programs,
policies, and activities on minorities
and low-income populations. The
FHWA has determined that this rule
does not raise any environmental justice
issues.
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I. 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 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.
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Issued under authority delegated in 49 CFR
1.81 and 1.85.
Shailen P. Bhatt,
Administrator, Federal Highway
Administration.
In consideration of the foregoing,
FHWA amends Title 23, Code of Federal
Regulations by revising part 490, to read
as follows:
PART 490—NATIONAL
PERFORMANCE MANAGEMENT
MEASURES
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.
2. Amend § 490.101 by adding in
alphabetical order the definition of
‘‘Fuels and Financial Analysis System—
Highways (Fuels & FASH)’’ to read as
follows:
■
§ 490.101
Definitions.
*
*
*
*
*
Fuels and Financial Analysis
System—Highways (Fuels & FASH) as
used in this part means FHWA’s system
of record for motor fuel, highway
program funding, licensed drivers, and
registered vehicles data.
*
*
*
*
*
■ 3. Amend § 490.105 by:
■ a. Adding paragraph (c)(5);
■ b. Revising paragraph (d) introductory
text, and adding paragraphs (d)(1)(v)
and (d)(4);
■ c. Adding paragraphs (e)(1)(i),
(e)(1)(ii), and (e)(4)(i)(C), revising
paragraph (e)(4)(iii), and adding
paragraph (e)(10); and
■ d. Revising paragraphs (f)(1)(i) and
(f)(3), and adding paragraph (f)(10).
The additions and revisions read as
follows:
§ 490.105
targets.
Establishment of performance
*
*
*
*
*
(c) * * *
(5) 490.507(b) for greenhouse gas
(GHG) emissions on the NHS;
*
*
*
*
*
(d) Target scope. Targets established
by State DOTs and MPOs shall,
regardless of ownership, represent the
transportation network or geographic
area, including bridges that cross State
borders, that are applicable to the
measures as specified in paragraphs
(d)(1), (2), and (4) of this section.
(1) * * *
(v) 490.503(a)(2) for the GHG measure
specified in § 490.507(b);
*
*
*
*
*
(4) MPOs shall establish a joint target
for the GHG measure specified in
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§ 490.507(b), for each urbanized area
that meets the criteria specified in
paragraph (f)(10) of this section. The
joint target shall represent the
performance of the transportation
network specified in § 490.503(a)(2).
(e) * * *
(1) Schedule. State DOTs shall
establish targets not later than the dates
provided in paragraphs (e)(1)(i) and
(e)(1)(ii) of this section, and for each
performance period thereafter, in a
manner that allows for the time needed
to meet the requirements specified in
this section and so that the final targets
are submitted to FHWA by the due date
provided in § 490.107(b).
(i) State DOTs shall establish initial
targets not later than May 20, 2018,
except as provided in paragraph
(e)(1)(ii) of this section.
(ii) State DOTs shall establish initial
targets for the GHG measure identified
in § 490.507(b) not later than February
1, 2024.
*
*
*
*
*
(4) * * *
(i) * * *
(C) For the GHG measure in
§ 490.105(c)(5), the performance period
will begin on January 1, 2022 and will
extend for a duration of 4-years.
Subsequent performance periods will
begin as described in paragraph (4)(i)(A)
of this section.
*
*
*
*
*
(iii) Except as provided in paragraphs
(e)(7) and (e)(8)(v), and (e)(10)(i) of this
section, State DOTs shall establish 2year targets that reflect the anticipated
condition/performance level at the
midpoint of each performance period
for the measures in paragraphs (c)(1)
through (7) of this section, and the
anticipated cumulative emissions
reduction to be reported for the first 2
years of a performance period by
applicable criteria pollutant and
precursor for the measure in paragraph
(c)(8) of this section.
*
*
*
*
*
(10) Targets for the GHG measure.
Targets established for the GHG measure
in paragraph (c)(5) of this section shall
be declining targets for reducing tailpipe
CO2 emissions on the NHS.
(i) The following requirements apply
only to the targets established for the
State Initial GHG Report, described in
§ 490.107(d), and 2026 Full Performance
Period Progress Report, described in
§ 490.107(b)(3), for the measure in
§ 490.507(b):
(A) State DOTs are exempt from the
required 2-year target described in
paragraph (e)(4)(iii) of this section.
(B) State DOTs shall establish a 4-year
target, required under paragraph
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(e)(4)(iv) of this section, and report this
target in their 2024 State Initial GHG
Report, required under § 490.107(d).
(C) The performance for the reference
year shall be used as the baseline
performance.
(f) * * *
(1) * * *
(i) The MPOs shall establish 4-year
targets, described in paragraph (e)(4)(iv)
of this section, for all applicable
measures, described in paragraphs (c)
and (d) of this section. For the GHG
measure described in (c)(5) of this
section, the targets established shall be
declining targets for reducing tailpipe
CO2 emissions on the NHS.
*
*
*
*
*
(3) Target establishment options. For
each performance measure identified in
paragraph (c) of this section, except the
CMAQ Traffic Congestion measures in
paragraph (f)(5) of this section, MPOs
meeting the criteria under paragraph
(f)(6)(iii) of this section for Total
Emissions Reduction measure, the
MPOs shall establish targets for the
metropolitan planning area by either:
(i) Agreeing to plan and program
projects so that they contribute toward
the accomplishment of the relevant
State DOT target for that performance
measure; or
(ii) Committing to a quantifiable target
for that performance measure for their
metropolitan planning area.
*
*
*
*
*
(10) Joint Targets for the GHG
Measure. Where an urbanized area
contains mainline highways on the
NHS, and any portion of that urbanized
area is overlapped by the metropolitan
planning area boundaries of two or more
MPOs, those MPOs shall collectively
establish a single joint 4-year target for
that urbanized area, described in
paragraph (e)(4)(iv) of this section. The
target established shall be a declining
target for reducing tailpipe CO2
emissions on the NHS. This joint target
is in addition to the targets for the
metropolitan planning area required in
paragraph (f)(1)(i) of this section.
(i) The NHS designations and
urbanized area data shall be from the
data contained in HPMS 1 year before
the State DOT Baseline Performance
Period Report is due to FHWA.
(ii) Only one target shall be
established for the entirety of each
applicable urbanized area regardless of
roadway ownership. In accordance with
paragraph (f)(9) of this section, each
MPO shall report the same joint target
for the urbanized area.
(iii) The target established for each
urbanized area shall represent a
quantifiable target for that urbanized
area.
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4. Amend § 490.107 by
a. Revising paragraphs (a)(1) and
(b)(1)(i), and adding paragraph
(b)(1)(ii)(H);
■ b. Revising paragraph (b)(2)(i) and
adding paragraph (b)(2)(ii)(J);
■ c. Revising paragraph (b)(3)(i) and
adding paragraph (b)(3)(ii)(I);
■ d. Revising paragraph (c)(2); and
■ e. Adding paragraph (d).
The additions and revisions read as
follows:
■
■
§ 490.107
targets.
Reporting on performance
(a) * * *
(1) All State DOTs and MPOs shall
report in accordance with the schedule
and content requirements under
paragraphs (b), (c), and (d) of this
section, respectively.
*
*
*
*
*
(b) * * *
(1) * * *
(i) Schedule. State DOTs shall submit
a Baseline Performance Period Report to
FHWA by October 1st of the first year
in a performance period. State DOTs
shall submit their first Baseline
Performance Period Report to FHWA by
October 1, 2018, and subsequent
Baseline Performance Period Reports to
FHWA by October 1st every 4 years
thereafter, except for the GHG measure
specified in § 490.105(c)(5). For the
Baseline Performance Period Report,
State DOTs shall submit information
related to the GHG measure in the report
due to FHWA by October 1, 2026, and
every 4 years thereafter.
(ii) * * *
(H) GHG metric and metric
information for the GHG measure. The
metric and the individual values used to
calculate the GHG metric, as described
in § 490.511(c), for the calendar year
preceding the reporting year, and a
description of the data source(s) used
for the VMT information.
*
*
*
*
*
(2) * * *
(i) Schedule. State DOTs shall submit
a Mid Performance Period Progress
Report to FHWA by October 1st of the
third year in a performance period. State
DOTs shall submit their first Mid
Performance Period Progress Report to
FHWA by October 1, 2020, and
subsequent Mid Performance Period
Progress Reports to FHWA by October
1st every 4 years thereafter, except for
the GHG measure specified in
§ 490.105(c)(5). For the Mid
Performance Period Progress Report, the
State DOTs shall submit information
related to the GHG measure in the report
due to FHWA by October 1, 2028, and
every 4 years thereafter.
(ii) * * *
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85391
(J) GHG metric and metric information
for the GHG measure. The metric and
the individual values used to calculate
the GHG metric, as described in
§ 490.511(c), for the calendar year
preceding the reporting year, and a
description of the data source(s) used
for the VMT information.
*
*
*
*
*
(b) * * *
(3) * * *
(i) Schedule. State DOTs shall submit
a progress report on the full
performance period to FHWA by
October 1st of the first year following
the reference performance period. State
DOTs shall submit their first Full
Performance Period Progress Report to
FHWA by October 1, 2022, and
subsequent Full Performance Period
Progress Reports to FHWA by October
1st every 4 years thereafter, except for
the GHG measure specified in
§ 490.105(c)(5). For the Full
Performance Period Progress Report,
State DOTs shall submit information
related to the GHG measure in the report
due to FHWA by October 1, 2026, and
every 4 years thereafter.
(ii) * * *
(I) GHG metric and metric
information for the GHG measure. The
metric and the individual values used to
calculate the GHG metric, as described
in § 490.511(c), for the calendar year
preceding the reporting year, and a
description of the data source(s) used
for the VMT information.
(c) * * *
(2) The MPOs shall report baseline
condition/performance and progress
toward the achievement of their targets
in the system performance report in the
metropolitan transportation plan in
accordance with part 450 of this
chapter. For the GHG measure in
§ 490.105(c)(5), the MPOs shall also
report:
(i) The calculation of annual tailpipe
CO2 emissions for the NHS, and may
include all public roads, described in
§ 490.511(f), for the period between the
current and previous system
performance report, and the reference
year.
(ii) A description of the metric
calculation method(s) used, as described
in § 490.511(d). When the method(s)
used are not specified in § 490.511(d),
the MPO must include information
demonstrating the method(s) has valid
and useful results for measuring
transportation related CO2.
*
*
*
*
*
(d) State Initial GHG Report. For the
GHG measure in § 490.105(c)(5), State
DOTs shall submit an Initial GHG
Report by February 1, 2024.
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Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations
(1) The State Initial GHG Report shall
include:
(i) Targets. The 4-year target for the
performance period, as required in
§ 490.105(e), and a discussion, to the
maximum extent practicable, of the
basis for the established target;
(ii) Baseline performance.
Performance derived from the data
collected for the reference year, for the
4-year target required under paragraph
(d)(1) of this section;
(iii) Relationship with other
performance expectations. A
discussion, to the maximum extent
practicable, on how the established
target in paragraph (d)(1) of this section
support expectations documented in
longer range plans, such as the State
asset management plan required by 23
U.S.C. 119(e) and the long-range
statewide transportation plan provided
in part 450 of this chapter; and
(iv) GHG metric and metric
information for the GHG measure. The
metric and the individual values used to
calculate the GHG metric, as described
in § 490.511(c), for the reference year.
(2) For the State Initial GHG Report,
the State DOT shall use the following
data to calculate the GHG metric,
described in § 490.511(c), for the
reference year.
(i) Data published by FHWA for the
CO2 factors for each on-road fuel type
associated with the reference year.
(ii) The fuel consumed data shall meet
the requirements in § 490.509(g) for the
reference year.
(iii) The VMT data shall meet the
requirements of § 490.509(h) for the
reference year.
■ 5. Amend § 490.109 by adding
paragraph (d)(1)(v), revising paragraph
(d)(1)(vi), and adding paragraphs
(d)(1)(vii) and (viii), (e)(4)(vi) and (vii),
(e)(6), and (f)(1)(v) to read as follows:
§ 490.109 Assessing significant progress
toward achieving the performance targets
for the National Highway Performance
Program and the National Highway Freight
Program.
ddrumheller on DSK120RN23PROD with RULES2
*
*
*
*
*
(d) * * *
(1) * * *
(v) Data contained within Fuels &
FASH on August 15th of the year in
which the significant progress
determination is made that represents
performance from the prior year for
targets established for the GHG measure
in § 490.105(c)(5), and data from Fuels
& FASH that represents performance for
the reference year.
(vi) Baseline condition/performance
data contained in Fuels & FASH, HPMS,
and NBI of the year in which the
Baseline Period Performance Report is
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21:02 Dec 06, 2023
Jkt 262001
due to FHWA that represents baseline
conditions/performances for the
performance period for the measures in
§§ 490.105(c)(1) through (5). For the
GHG measure, specified in
§ 490.105(c)(5), the baseline
performance data from HPMS shall be
the data contained within HPMS on
November 30th of the year the Baseline
Period Performance Report is due to
FHWA.
(vii) Data contained within the HPMS
on November 30th of the year in which
the significant progress determination is
made that represents performance from
the prior year for targets established for
the GHG measure specified in
§ 490.105(c)(5), and HPMS data as of
November 30, 2023 that represents
performance for the reference year.
(viii) The CO2 factor specified in
§ 490.509(f) for the baseline
performance, prior year, and reference
year for targets established for the GHG
measure specified in § 490.105(c)(5).
*
*
*
*
*
(e) * * *
(4) * * *
(vi) A State DOT’s reported data are
not accepted in the Fuels & FASH, by
the data extraction date specified in
paragraph (d)(1) of this section for the
GHG measure in § 490.105(c)(5).
(vii) A State DOT’s reported data are
not accepted in the HPMS by the data
extraction date specified in paragraph
(d)(1) of this section for the GHG
measure in § 490.105(c)(5).
*
*
*
*
*
(6) Phase-in of new requirements for
the GHG Measure. The following
requirements shall only apply to the
GHG targets, described in § 490.513(d),
and the significant progress
determination conducted immediately
after the submittal of the 2024 Mid
Performance Period Progress Report,
described in § 490.107(b)(2):
(i) Consistent with § 490.105(e)(10)(i),
State DOTs are not required to establish
a 2-year target, and, consistent with
490.107(b)(2), State DOTs will not
submit information related to the GHG
measure in the 2024 Mid Performance
Period Progress Report.
(ii) At the midpoint of the
performance period, FHWA shall not
make a determination of significant
progress toward the achievement of 2year targets for the GHG measure; and
(iii) The FHWA will classify the
assessment of progress toward the
achievement of targets in paragraph
(e)(6)(ii) of this section as ‘‘progress not
determined’’ and they will be excluded
from the requirement under paragraph
(e)(2) of this section.
(f) * * *
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(1) * * *
(v) If significant progress is not made
for the target established for the GHG
measure in § 490.105(c)(5), then the
State DOT shall document the actions it
will take to achieve the GHG
performance target.
*
*
*
*
*
Subpart E—National Performance
Management Measures To Assess
Performance of the National Highway
System
6. Amend § 490.503 by adding
paragraph (a)(2) to read as follows:
■
§ 490.503
Applicability.
(a) * * *
(2) The Greenhouse Gas (GHG)
measure in § 490.507(b) is applicable to
all mainline highways on the Interstate
and non-Interstate NHS.
*
*
*
*
*
■ 7. Amend § 490.505 by adding in
alphabetical order definitions of
‘‘Greenhouse gas’’, and ‘‘Reference year’’
to read as follows:
§ 490.505
Definitions.
*
*
*
*
*
Greenhouse gas (GHG) is any gas that
absorbs infrared radiation (traps heat) in
the atmosphere. Approximately 97
percent of on-road GHG emissions are
carbon dioxide (CO2) from burning
fossil fuel. Other transportation GHGs
are methane (CH4), nitrous oxide (N2O),
and hydrofluorocarbons (HFCs).
*
*
*
*
*
Reference year is calendar year 2022
for the purpose of the GHG measure.
*
*
*
*
*
■ 8. Amend § 490.507 by revising the
introductory text and adding paragraph
(b) to read as follows:
§ 490.507 National performance
management measures for system
performance.
There are three performance measures
to assess the performance of the
Interstate System and the performance
of the non-Interstate NHS for the
purpose of carrying out the National
Highway Performance Program (referred
to collectively as the NHS Performance
measures).
*
*
*
*
*
(b) One measure is used to assess
GHG emissions, which is the percent
change in tailpipe CO2 emissions on the
NHS compared to the reference year
(referred to as the GHG measure).
■ 9. Amend § 490.509 by adding
paragraphs (f) through (h) to read as
follows:
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§ 490.509
Data requirements.
*
*
*
*
*
(f) The FHWA will post on the FHWA
website, no later than August 15th of
each reporting year, the CO2 factors for
each on-road fuel type that will be used
to calculate the GHG metric for the GHG
measure in § 490.105(c)(5).
(g) Fuel sales information needed to
calculate the fuel consumed for the GHG
measure in § 490.507(b) shall:
(1) Represent the total number of
gallons of fuel consumed by fuel type;
and
(2) Be based on fuels sales data for the
prior calendar year, and reported to
Fuels & FASH.
(h) Annual vehicle miles traveled
(VMT) needed to calculate the GHG
measure in § 490.507(b) shall come from
the best available data that represents
the prior calendar year and is
consistent, to the maximum extent
practicable, with data submitted to
HPMS. The VMT data needed to
calculate the GHG metric in § 490.511(c)
for the reference year, shall be the
HPMS data as of November 30, 2023.
10. Amend § 490.511 by adding
paragraphs (a)(2), (c), (d), and (f) to read
as follows:
■
85393
§ 490.511 Calculation of National Highway
System performance metrics.
(a) * * *
(2) Annual Total Tailpipe CO2
Emissions on the NHS for the GHG
measure in § 490.507(b) (referred to as
the GHG metric).
*
*
*
*
*
(c) Tailpipe CO2 emissions on the
NHS for a given year shall be computed
in million metric tons (mmt) and
rounded to the nearest hundredth as
follows:
Equation 1 to paragraph (c)
(Tailpipe CO 2 Emissions on NHS)cy
=
(I~=
1
(Fuel Consumed)t X (C0 2 Factor)t) X
( NHSVMT)
Total VMT
Where:
(Tailpipe CO2 Emissions on NHS)CY = Total
tailpipe CO2 emissions on the NHS in a
calendar year (expressed in mmt, and
rounded to the nearest hundredth);
T = the total number of on-road fuel types;
t = an on-road fuel type;
(Fuel Consumed)t = the quantity of total
annual fuel consumed for on-road fuel
type ’’t’’ (to the nearest thousand
gallons);
(CO2 Factor)t = is the amount of CO2 released
per unit of fuel consumed for on-road
fuel type ‘‘t’’;
NHS VMT = annual total vehicle-miles
traveled on NHS (to the nearest one
million vehicle-miles); and
Total VMT = annual total vehicle-miles
traveled on all public roads (to the
nearest one million vehicle-miles).
(d) For the GHG measure specified in
§ 490.507(b), MPOs are granted
additional flexibility in how they
calculate the GHG metric, described in
§ 490.511(a)(2). MPOs may use the MPO
share of the State’s VMT as a proxy for
the MPO share of CO2 emissions in the
State, VMT estimates along with
MOVES 1 emissions factors, FHWA’s
Energy and Emissions Reduction Policy
Analysis Tool (EERPAT) model, or other
method the MPO can demonstrate has
valid and useful results for CO2
measurement.
*
*
*
*
*
(f) Tailpipe CO2 emissions generated
by on-road sources travelling on the
NHS (the GHG metric), and generated by
on-road sources travelling on all
roadways (the step in the calculation
prior to computing the GHG metric)
shall be calculated as specified in
paragraph (c) of this section. The
calculations shall be reported in the
State Biennial Performance Reports, as
required in § 490.107, and shall address
the following time periods.
(1) The reference year, as required in
§ 490.107(b)(1)(ii)(H); and
(2) The calendar year preceding the
reporting year, as required in
§ 490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and
(b)(3)(ii)(I).
1 MOVES (Motor Vehicle Emission
Simulator) is EPA’s emission modeling
system that estimates emissions for mobile
sources at the national, county, and project
level for criteria air pollutants, GHGs, and air
toxics. See https://www.epa.gov/moves. The
EMFAC model is used in California for
emissions analysis.
11. Amend § 490.513 by adding
paragraph (d) to read as follows:
■
§ 490.513 Calculation of National Highway
System performance measures.
*
*
*
*
*
(d) The GHG measure specified in
§ 490.507(b) shall be computed to the
nearest tenth of a percent as follows:
Equation 3 to paragraph (d)
Where:
(Tailpipe CO2 Emissions on NHS)CY = total
tailpipe CO2 emissions on the NHS in a
calendar year (expressed in million
VerDate Sep<11>2014
21:02 Dec 06, 2023
Jkt 262001
metric tons (mmt), and rounded to the
nearest hundredth); and
(Tailpipe CO2 Emissions on NHS)reference year
= total tailpipe CO2 emissions on the
NHS in calendar year 2022 (expressed in
PO 00000
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x
million metric tons (mmt), and rounded
to the nearest hundredth).
■
12. Add § 490.515 to read as follows:
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ER07DE23.001
(Tailpipe CO2Emissions on NHS\eferenceyear
l 00
ER07DE23.000
ddrumheller on DSK120RN23PROD with RULES2
(Tailpipe CO 2Emissions on NHS)cy - (Tailpipe CO2Emissions on NHS) re,erence
,
year
85394
§ 490.515
Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations
Severability.
ddrumheller on DSK120RN23PROD with RULES2
The provisions of §§ 490.105(c)(5),
105(d), 105(d)(1)(v), 105(d)(4),
105(e)(1)(i), 105(e)(1)(ii), 105(e)(4)(i)(C),
105(e)(4)(iii), 105(e)(10), 105(f)(1)(i),
105(f)(3), 105(f)(10), 107(a)(1),
107(b)(1)(i), 107(b)(1)(ii)(H), 107(b)(2)(i),
VerDate Sep<11>2014
21:02 Dec 06, 2023
Jkt 262001
107(b)(2)(ii)(J), 107(b)(3)(i),
107(b)(3)(ii)(I), 107(c)(2), 107(d),
109(d)(1)(v), 109(d)(1)(vi), 109(d)(1)(vii),
109(d)(1)(viii), 109(e)(4)(vi),
109(e)(4)(vii), 109(e)(6), 109(f)(1)(v),
503(a)(2), 505, 507(b), 509(f), 509(g),
509(h), 511(a)(2), 511(c), 511(d) 511(f),
and 513(d) are separate and severable
PO 00000
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from one another and from the other
provisions of this part. If any provision
is stayed or determined to be invalid,
the remaining provisions shall continue
in effect.
[FR Doc. 2023–26019 Filed 12–6–23; 8:45 am]
BILLING CODE 4910–22–P
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Agencies
[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Rules and Regulations]
[Pages 85364-85394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-26019]
[[Page 85363]]
Vol. 88
Thursday,
No. 234
December 7, 2023
Part II
Department of Transportation
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Federal Highway Administration
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23 CFR Part 490
National Performance Management Measures; Assessing Performance of the
National Highway System, Greenhouse Gas Emissions Measure; Final Rule
Federal Register / Vol. 88 , No. 234 / Thursday, December 7, 2023 /
Rules and Regulations
[[Page 85364]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 490
[FHWA Docket No. FHWA-2021-0004]
RIN 2125-AF99
National Performance Management Measures; Assessing Performance
of the National Highway System, Greenhouse Gas Emissions Measure
AGENCY: Federal Highway Administration (FHWA), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends FHWA's regulations governing national
performance management measures and establishes a method for the
measurement and reporting of greenhouse gas (GHG) emissions associated
with transportation (GHG measure). It requires State departments of
transportation (State DOT) and metropolitan planning organizations
(MPO) to establish declining carbon dioxide (CO2) targets
for the GHG measure and report on progress toward the achievement of
those targets. The rule does not mandate how low targets must be.
Rather, State DOTs and MPOs have flexibility to set targets that are
appropriate for their communities and that work for their respective
climate change and other policy priorities, as long as the targets aim
to reduce emissions over time. The FHWA will assess whether State DOTs
have made significant progress toward achieving their targets.
DATES: This final rule is effective January 8, 2024.
FOR FURTHER INFORMATION CONTACT: Mr. John G. Davies, Office of Natural
Environment, (202) 366-6039, or via email at [email protected], or
Mr. Lev Gabrilovich, Office of the Chief Counsel, (202) 366-3813, or
via email at [email protected]. Office hours are from 8 a.m. to
4:30 p.m., E.T., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document, the notice of proposed rulemaking (NPRM), all
comments received, and all supporting material may be viewed online at
www.regulations.gov using the docket number listed above. Electronic
retrieval help and guidelines are available on the website. It is
available 24 hours each day, 365 days each year. An electronic copy of
this document may also be downloaded from the Office of the Federal
Register's website at www.federalregister.gov and the Government
Publishing Office's website at www.GovInfo.gov.
I. Executive Summary
The FHWA is amending its regulations on national performance
management measures at 23 CFR part 490 (part 490) and establishing a
method for the measurement and reporting of GHG emissions. The
environmental sustainability, and specifically the carbon footprint, of
the transportation system is a critically important attribute that
State DOTs can and should use to assess the performance of the
Interstate and non-Interstate NHS. Section 150(c) of Title 23, U.S.C.,
clearly directs FHWA to establish performance measures that the State
DOTs can use to assess performance of the Interstate and non-Interstate
NHS. Although the statute does not define the meaning of
``performance'' of the Interstate and non-Interstate NHS under 23
U.S.C. 150(c), Congress identified national goals under 23 U.S.C.
150(b), which include environmental sustainability. See 23 U.S.C.
150(b)(6). To support the environmental sustainability national goal,
FHWA is interpreting ``performance'' of the Interstate System and non-
Interstate NHS under 23 U.S.C. 150(c) to include the system's
environmental performance. This definition of ``performance'' is also
consistent with other Title 23, U.S.C. provisions, such as 23 U.S.C.
119, discussed later in this preamble.
The GHG measure established in this rule is the same as the measure
proposed in the NPRM, which is the percent change in on-road tailpipe
CO2 emissions on the NHS relative to the reference year. The
FHWA is finalizing a reference year of 2022 as part of this rule. The
measure is part of the National Highway Performance Program (NHPP)
performance measures that FHWA established in part 490 through prior
rulemakings. The GHG measure requires State DOTs and MPOs that have NHS
mileage within their State geographic boundaries and metropolitan
planning area boundaries, respectively, to establish declining targets
for reducing CO2 emissions \1\ generated by on-road mobile
sources. The regulation uses ``NHS'' to mean the mainline highways of
the NHS, consistent with the applicability of the measure described in
Sec. 490.503(a)(2). Consistent with the Transportation Performance
Management (TPM) framework, State DOTs will establish 2- and 4-year
statewide emissions reduction targets, and MPOs will establish 4-year
emissions reduction targets for their metropolitan planning areas. In
addition, the rule will require certain MPOs serving UZAs with
populations of 50,000 or more to establish additional joint targets.
Specifically, when the metropolitan planning area boundaries of two or
more MPOs overlap any portion of an UZA, and the UZA contains NHS
mileage, those MPOs will establish joint 4-year targets for that UZA.
This joint target will be established in addition to each MPO's target
for their metropolitan planning area. State DOTs and MPOs have the
flexibility to set targets that work for their respective climate
change policies and other policy priorities, so long as they are
declining. The State DOTs and MPOs are also required to report on their
progress in meeting the targets. The final rule applies to the 50
States, the District of Columbia, and Puerto Rico, consistent with the
definition of the term ``State'' in 23 U.S.C. 101(a). To realize the
benefits of a GHG measure as soon as is practicable, State DOTs will
first establish targets and report those targets by February 1, 2024,
and subsequent targets will be established and reported no later than
October 1, 2026, with biennial reports thereafter.
---------------------------------------------------------------------------
\1\ The proposed GHG measure specifically applies to
CO2 emissions, which is the predominant human-produced
GHG. CO2 is also the predominant GHG from on-road mobile
sources, accounting for approximately 97 percent of total GHG
emissions weighted by global warming potential in 2021. See U.S.
Environmental Protection Agency, 2023: Inventory of U.S. Greenhouse
Gas Emissions and Sinks: 1990-2021, table 2-13, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021.
---------------------------------------------------------------------------
The GHG measure will help the United States (U.S.) confront the
increasingly urgent climate crisis. The Sixth Assessment Report by the
Intergovernmental Panel on Climate Change (IPCC), released on August 7,
2021, confirms that human activities are increasing GHG concentrations
that have warmed the atmosphere, ocean, and land at a rate that is
unprecedented in at least the last 2000 years.\2\ Changes in extreme
events, along with anticipated future increases in the occurrence and
severity of these events because of climate change, threaten the
reliability, safety, and efficiency of the transportation system and
the people who rely on it to move themselves and transport goods. At
the same time,
[[Page 85365]]
transportation contributes significantly to the causes of climate
change,\3\ representing the largest source of U.S. CO2
emissions, and each additional ton of CO2 produced by the
combustion of fossil fuels contributes to future warming and other
climate impacts.
---------------------------------------------------------------------------
\2\ See IPCC, 2021: Summary for Policymakers. In: Climate Change
2021: The Physical Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the Intergovernmental Panel on
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
\3\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. Choate,
S. DesRoches, S. Douglass, and R. Miller, 2018: Transportation. In
Impacts, Risks, and Adaptation in the United States: Fourth National
Climate Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R.
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research Program, Washington,
DC, USA, pp. 479-511. doi: 10.7930/NCA4.2018.CH12.
---------------------------------------------------------------------------
The GHG measure aligns with Executive Orders (E.O.) described later
in this preamble and supports the U.S. target of reducing GHG emissions
50-52 percent below 2005 levels in 2030, on course to reaching net-zero
emissions economywide no later than 2050.\4\ As a matter of
transportation policy, DOT considers the GHG measure essential to
improve transportation sector performance and demonstrate Federal
leadership in the assessment and disclosure of climate pollution. The
first step toward reducing GHG emissions involves inventorying and
monitoring those emissions. By providing consistent and timely
information about on-road mobile source emissions on the NHS, the GHG
measure has the potential to increase public awareness of GHG emissions
trends, improve the transparency of transportation decisions, enhance
decisionmaking at all levels of government, and support better informed
planning choices to reduce GHG emissions or inform tradeoffs among
competing policy choices.
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\4\ White House Fact Sheet: The Biden-Harris Electric Vehicle
Charging Action Plan (December 13, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/;
White House Fact Sheet: President Biden Sets 2030 Greenhouse Gas
Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs
and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22,
2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/.
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Furthermore, the rule responds to the direction in sections 1 and 2
of E.O. 13990 (86 FR 7037) that Federal agencies review any regulations
issued or similar actions taken between January 20, 2017, and January
20, 2021, and, consistent with applicable law, take steps to address
any such actions that conflict with the national objectives set forth
in the order to address climate change. The FHWA reviewed its 2018
final rule (83 FR 24920, May 31, 2018) that repealed a GHG measure FHWA
adopted in 2017 (2017 GHG measure) and determined that the repeal
conflicts with those objectives.
After reviewing the 2018 final rule, FHWA has reconsidered its
position that the Agency's authority to promulgate the 2017 final rule
reflected a ``strained reading of the statutory language in section
150.'' 83 FR at 24923. The FHWA now concludes, as it did when
establishing a GHG measure in the 2017 PM3 final rule, that it has the
legal authority to establish the GHG measure under 23 U.S.C. 150.
Specifically, FHWA is clearly directed under 23 U.S.C.
150(c)(3)(A)(ii)(IV)-(V) to establish measures for States to use to
assess the performance of the Interstate System and non-Interstate NHS.
Although the statute does not define performance, 23 U.S.C. 150(b)(6)
identifies environmental sustainability as a national goal of the
Federal-aid highway program, and Congress, in 23 U.S.C. 150(a), has
declared that performance management, including the use of performance
measures, is key to meeting the national goals of section 150(b). To
address the national goal of environmental sustainability, FHWA has
determined that the performance of the Interstate System and the NHS
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) logically includes
environmental performance. The GHG measure is also appropriate in light
of other provisions of Title 23, U.S.C., notably the NHPP provisions at
23 U.S.C. 119, which include requirements for State asset management
plans that support progress toward the achievement of the national
goals identified in 23 U.S.C. 150(b), including the national goal to
enhance the performance of the transportation system while protecting
and enhancing the natural environment at 23 U.S.C. 150(b)(6), and
include a risk management analysis that specifically addresses extreme
weather and resilience. See 23 U.S.C. 119(e)(2) and (e)(4)(D). This
reconsideration is discussed in detail in section III.B in the NPRM,
see 87 FR 42407-42410, and section III below.
The regulatory impact analysis (RIA) prepared pursuant to E.O.
12866, as amended by E.O. 14094, is available in the rulemaking docket
(Docket No. FHWA-2021-0004). The RIA estimates the costs associated
with establishing the GHG measure, derived from the costs of
implementing the GHG measure for each component of the rule that may
involve costs. To estimate the costs, FHWA assessed the level of effort
that would be needed to comply with each applicable section in part 490
with respect to the GHG measure, including labor hours by labor
category, over a 10-year study period (2023-32). Total costs over this
period are estimated to be $10.8 million, discounted at 7 percent, and
$12.7 million, discounted at 3 percent. The RIA also discusses
anticipated benefits of the rule qualitatively because the anticipated
quantitative benefits are difficult to forecast and monetize. These
benefits include: (1) more-informed decision-making through the
creation of complete, consistent, and timely information on GHG
emissions; (2) greater accountability through the establishment of a
more highly visible and transparent performance reporting system; and
(3) improved progress toward achieving national transportation goals by
including declining targets for CO2 emissions on the NHS in
the set of existing performance requirements designed to help the
Federal-aid highway program support balanced performance outcomes and
national climate policies.
II. Background and Regulatory History
The 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21)
(Pub. L. 112-141) and the 2015 Fixing America's Surface Transportation
(FAST Act) (Pub. L. 114-94) transformed the Federal-aid highway program
by establishing performance management requirements and tasking FHWA
with carrying them out. To implement this program, FHWA established an
organizational unit with dedicated full-time staff to coordinate with
program staff from each of the performance areas to design and
establish an approach to effectively implement the Title 23 performance
provisions. The FHWA has technical and policy experts on staff to
assist State DOTs and MPOs with implementing performance management and
oversee program requirements. The FHWA implemented this performance
management network through multiple rulemakings, which established in
23 CFR part 490 the performance measures and requirements for target
establishment, reporting on progress, and how determinations would be
made on whether State DOTs have made significant progress toward
applicable targets.
The TPM requirements provide increased accountability and
transparency, and facilitate efficient investment of Federal
transportation funds through a focus on performance outcomes for the
seven national
[[Page 85366]]
transportation goals concerning safety, infrastructure condition,
congestion reduction, system reliability, freight movement and economic
vitality, environmental sustainability, and reduced project delivery
delays. See 23 U.S.C. 150(b). Through performance management,
recipients of Federal-aid highway funds make transportation investments
to achieve short-term performance targets and make progress toward the
seven statutory national transportation goals. Performance management
allows FHWA to more effectively evaluate and report on the Nation's
surface transportation conditions and performance.
Prior to MAP-21, there were no explicit statutory requirements for
State DOTs or MPOs to demonstrate how their transportation programs
supported national performance outcomes, making it difficult to assess
the effectiveness of the Federal-aid highway program. The TPM
requirements established in MAP-21 changed this paradigm by requiring
State DOTs and MPOs to measure condition or performance, establish
targets, assess progress toward targets, and report on condition or
performance in a nationally consistent manner for the first time. See
23 U.S.C. 150(e); 23 CFR 490.107. As previously noted, FHWA conducted
several rulemakings implementing the performance management framework.
Most relevant to this proposed rule are three related national
performance management measure rulemakings in which FHWA established
various measures for State DOTs and MPOs to use to assess performance,
found at 23 CFR part 490. The first rulemaking focused on Safety
Performance Management (PM1), and a final rule published on March 15,
2016 (81 FR 13882), established performance measures for State DOTs to
use to carry out the Highway Safety Improvement Program (HSIP). The
second rulemaking on Infrastructure Performance Management (PM2)
resulted in a final rule published on January 18, 2017 (82 FR 5886),
that established performance measures for assessing pavement condition
and bridge condition for the NHPP. The third rulemaking, System
Performance Management (PM3), established measures for State DOTs and
MPOs to use to assess the performance of the Interstate and non-
Interstate NHS for the purpose of carrying 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 Congestion Mitigation and Air Quality (CMAQ) Program.
The PM3 final rule was published on January 18, 2017 (82 FR 5970). The
PM3 rule addressed a broad set of performance issues and some of the
national transportation goals, such as environmental sustainability,
that were not addressed in the earlier rulemakings focused solely on
safety and infrastructure condition. In the preamble to the PM3
proposed rule, published on April 22, 2016 (81 FR 23806), FHWA
requested public comment on whether to establish a CO2
emissions measure in the final rule and, if so, how to do so. The FHWA
acknowledged the contribution of on-road sources to over 80 percent of
U.S. transportation sector GHG emissions, and the historic Paris
Agreement in which the U.S. and more than 190 other countries agreed in
December 2015 to reduce GHG emissions, with the goal of limiting global
temperature rise to less than 2 degrees Celsius above pre-industrial
levels by 2050. The FHWA recognized that achieving U.S. climate goals
would require significant GHG reductions from on-road transportation
sources. See 81 FR 23830. Against this backdrop, FHWA stated that it
was considering how GHG emissions could be estimated and used to inform
planning and programming decisions to reduce long term emissions. The
FHWA sought comment on the potential establishment and effectiveness of
a GHG emissions measure as a planning, programming, and reporting tool,
and FHWA requested feedback on specific considerations related to the
design of such a measure. See 82 FR 23831.
In the PM3 final rule, after considering extensive public comments
on whether and how FHWA should establish such a measure, FHWA
established a GHG emissions performance measure to measure
environmental performance in accordance with 23 U.S.C. 150(c)(3). The
measure involved the percent change in CO2 emissions from
the reference year 2017, generated by on-road mobile sources on the
NHS. After a change in Administration, FHWA repealed the 2017 GHG
measure before the respective due dates for target setting or
reporting. On October 5, 2017 (82 FR 46427), FHWA proposed to repeal
the 2017 GHG measure. The FHWA requested public comment on whether to
retain or revise the 2017 GHG measure. See 82 FR 46430. In light of
policy direction at the time to review existing regulations to
determine whether changes would be appropriate to eliminate duplicative
regulations, reduce costs, and streamline regulatory processes, and
after considering public comments received, on May 31, 2018 (83 FR
24920), FHWA repealed the GHG measure, effective on July 2, 2018. The
FHWA identified three main reasons for the repeal: (1) reconsideration
of the underlying legal authority; (2) the cost of the GHG measure in
relation to the lack of demonstrated benefits; and (3) potential
duplication of information produced by the GHG measure and information
produced by other initiatives related to measuring CO2
emissions.
On July 15, 2022 (87 FR 42401), FHWA published a NPRM to establish
a GHG measure. After reconsidering the arguments for the 2018 final
rule and finding them lacking, FHWA proposed to require State DOTs and
MPOs that have NHS mileage within their State geographic boundaries and
metropolitan planning area boundaries, respectively, to establish
declining targets for reducing CO2 emissions generated by
on-road mobile sources, that align with the Administration's target of
net-zero emissions, economy-wide, by 2050, accordance with the national
policy established under section 1 of E.O. 13990, ``Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis'', section 201 of E.O. 14008, ``Tackling the Climate Crisis at
Home and Abroad'', and at the Leaders Summit on Climate. Under the
proposed rule, State DOTs would establish 2- and 4-year statewide
emissions reduction targets, and MPOs would establish 4-year emissions
reduction targets for their metropolitan planning areas. In addition,
FHWA proposed to require MPOs serving select UZA to establish
additional joint targets. The term ``urbanized area'' means a
geographic area with a population of 50,000 or more, as designated by
the Bureau of the Census. See 23 U.S.C. 101(a)(36); 23 CFR 450.104. The
NPRM specified that when the metropolitan planning area boundaries of
two or more MPOs overlap any portion of the same UZA, and the UZA
contains NHS mileage, those MPOs would establish joint 4-year targets
for that UZA. This joint target would be established in addition to
each MPO's target for their metropolitan planning area. Further, FHWA
proposed to require State DOTs and MPOs to set declining targets for
reducing tailpipe CO2 emissions on the NHS. Under the NPRM,
State DOTs and MPOs would have the flexibility to set targets that work
for their respective climate change policies and other policy
priorities, so long as they aligned with the goal of net-zero GHG
emissions, economy-wide, by 2050. The FHWA also proposed to require
State DOTs and MPOs to report on their progress in
[[Page 85367]]
meeting the targets. The FHWA identified that the proposed rule would
apply to the 50 States, the District of Columbia, and Puerto Rico,
consistent with the definition of the term ``State'' in 23 U.S.C.
101(a). The FHWA now finalizes the proposed measure with some
modifications.
III. Statutory Authority for Performance Management and the GHG Measure
The FHWA is establishing the GHG emissions performance measure
under 23 U.S.C. 150(c)(3), which calls for FHWA to establish
performance measures that the States can use to assess performance of
the Interstate and non-Interstate NHS for the purpose of carrying out
the NHPP under 23 U.S.C. 119. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V).
The FHWA received many comments both in support and in opposition to
the Agency's authority to promulgate this rulemaking. After considering
these comments, FHWA reaffirms that Congress provided FHWA with clear
authority to develop performance measures to help State DOTs and MPOs
address significant and long-term issues impacting the performance of
the transportation system. These comments and FHWA's response are
further discussed in Section VII of this preamble.
The FHWA has determined that measuring environmental performance of
the Interstate and non-Interstate NHS is vital to meeting the Agency's
obligations under 23 U.S.C. 150. As discussed in the NPRM, Congress
charged FHWA with establishing performance measures, but did not define
the term ``performance,'' as used in 23 U.S.C. 150(c)(3). Thus, FHWA
must interpret this term in the context of the statute, FHWA's
statutory authority in Title 23, U.S.C., to administer the Federal-aid
highway program, and congressional intent. Accordingly, FHWA is
interpreting ``performance'' of the Interstate System and non-
Interstate NHS under 23 U.S.C. 150(c) to include the system's
environmental performance, consistent with the program's statutorily
mandated goal to enhance the performance of the transportation system
while protecting and enhancing the natural environment. See 23 U.S.C.
150(b). As described further in this preamble, FHWA interprets this
national goal to mean that the Agency should take reasonable steps to
assist State DOTs and MPOs measure and evaluate the GHG emissions on
the Interstate and non-Interstate NHS. The FHWA's interpretation of
performance under 23 U.S.C. 150(c) is consistent with 23 U.S.C. 119(e),
which calls for State DOTs to develop a performance-driven asset
management plan that would ``support progress toward the achievement of
the national goals identified in section 150(b).'' 23 U.S.C. 119(e)(2).
In addition, 23 U.S.C. 119(b) provides the purposes of the NHPP, which
include supporting the condition and performance of the NHS, supporting
construction of new facilities on the NHS, ensuring investments of
Federal-aid funds in highway construction are directed to support
progress toward the achievement of performance targets established in a
State asset management plan, and supporting activities to increase the
resiliency of the NHS to mitigate the cost of damages from sea level
rise, extreme weather events, flooding, wildfires, or other natural
disasters. Assessing environmental performance provides support for
activities to increase the resiliency of the NHS to mitigate the cost
of damages from sea level rise, extreme weather events, flooding,
wildfires, or other natural disasters.
Importantly, FHWA does not believe its authority in this area is
unlimited. Since 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) refers only to the
performance of the Interstate System and the non-Interstate NHS, FHWA
only has authority to apply this measure to the Interstate System and
the non-Interstate NHS. In addition, FHWA is only requiring that State
DOTs and MPOs establish declining targets for GHG emissions on the NHS.
The FHWA is neither requiring any specific targets nor mandating any
penalties for failing to achieve these targets. The measure and the
associated targets are intended only to help State DOTs and MPOs
consistently and transparently monitor the current performance of the
NHS, and plan transportation projects in a way that protects the long-
term performance of the NHS.
As described in the NPRM, see 87 FR 42408, Congress specifically
directed FHWA to establish measures for States to use to assess the
performance of the Interstate System and the non-Interstate NHS. See 23
U.S.C. 150(c)(3)(A)(ii)(IV)-(V). Although Congress did not define the
meaning of performance under this provision, the statute identifies
seven national goals to inform performance management. Environmental
sustainability is one of the specifically identified goals, which is
defined as ``enhanc[ing] the performance of the transportation system
while protecting and enhancing the natural environment.'' 23 U.S.C.
150(b)(6). Congress directed FHWA to determine the nature and scope of
the specific performance measures that will fulfill the statutory
mandate in 23 U.S.C. 150(c), and has not clarified this authority even
after FHWA finalized the three national performance management measure
rulemakings described earlier. The FHWA notes that 23 U.S.C.
150(c)(2)(C) limits performance measures to those described in 23
U.S.C. 150(c). When FHWA repealed the GHG performance measure, the
Agency took an unduly narrow view and determined that since 23 U.S.C.
150(c)(2)(C) directs FHWA to limit performance measures only to those
described in 23 U.S.C. 150(c), FHWA's previous interpretation that
performance of the Interstate System and the National Highway System
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) includes environmental
performance was overly broad. As FHWA described in the NPRM, see 87 FR
42408, this provision limits FHWA's authority to establish measures
States use to assess performance only to the Interstate System and the
non-Interstate NHS. However, the provision does not otherwise limit the
meaning of ``performance,'' and upon reconsideration, FHWA has
determined that its original interpretation of the scope of its section
150(c) authority from the 2017 final rule is the better read of the
statute. Specifically, in light of the explicit statutory goal of
environmental sustainability, the significant risks that climate
change-driven extreme weather pose to the condition and performance of
NHS, and FHWA's unquestioned authority to establish performance
measures, FHWA believes that it is appropriate to interpret the meaning
of performance of the Interstate System and the non-Interstate NHS
under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) to include environmental
performance.
As described in the NPRM and previously discussed in this preamble,
this GHG measure is consistent with other parts of Title 23, U.S.C.,
notably 23 U.S.C. 119. Section 119(d)(1) of Title 23, U.S.C.,
establishes eligibility criteria for using funds apportioned to a State
for carrying out the NHPP, but does not set forth all relevant
considerations for carrying out the program. For example, 23 U.S.C.
119(d)(2) identifies purposes for eligible projects, including
development and implementation of a State DOT's asset management plan
for the NHS under 23 U.S.C. 119(e), and environmental mitigation
efforts related to projects funded under 23 U.S.C. 119(g). Section
119(e) calls for a performance-driven asset management plan that would
``support progress toward the achievement of the national goals
identified in Section 150(b)'',
[[Page 85368]]
which includes the environmental sustainability national goal under 23
U.S.C. 150(b)(6). Risk-based asset management planning under 23 U.S.C.
119(e) includes consideration of life-cycle costs and risk management,
financial planning, and investment strategies. Rapidly changing climate
and increased weather extremes because of fossil fuel combustion
directly impact the condition and performance of transportation
facilities because of increases in heavy precipitation, coastal
flooding, heat, wildfires, and other extreme events. Extreme events are
already leading to transportation challenges, inducing societal and
economic consequences, which will only increase in the years ahead. The
number of billion-dollar climate disaster events has been much higher
over the last 5 years than the annual average over the last 30
years.\5\ Low-income and vulnerable populations are disproportionately
affected by the impacts of climate change.\6\ These impacts are not
attributable to any single action, but are exacerbated by a series of
actions, including actions taken under the Federal-aid highway program.
Recognizing the need to plan for and consider the risks of extreme
weather, Congress amended the requirements for States' asset management
plans under 23 U.S.C. 119(e) to include lifecycle cost and risk
management analyses that specifically consider extreme weather and
resilience. See 23 U.S.C. 119(e)(4)(D) (as amended by Pub. L. 117-58,
sec. 11105). Measuring environmental performance through the GHG
performance measure will assist States in considering CO2
emissions from transportation in the performance management framework,
including the impact of CO2 emissions on the medium- and
long-term conditions of transportation assets arising from the risks
of, and costs related to extreme weather, and help frame responses to
the growing climate crisis. Therefore, the GHG performance measure is
appropriate in light of 23 U.S.C. 119, and FHWA has determined that the
Agency's interpretation of ``performance'' to include ``environmental
performance'' is consistent with 23 U.S.C. 119.
---------------------------------------------------------------------------
\5\ NOAA National Centers for Environmental Information (NCEI),
2022: U.S. Billion-Dollar Weather and Climate Disasters, available
at https://www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw-7w73.
\6\ Ebi, K.L., J.M. Balbus, G. Luber, A. Bole, A. Crimmins, G.
Glass, S. Saha, M.M. Shimamoto, J. Trtanj, and J.L. White-Newsome,
2018: Human Health. In Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 539-571. doi: 10.7930/
NCA4.2018.CH14.
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As FHWA noted in the NPRM, several other provisions in Title 23,
U.S.C., support FHWA's authority for its proposal to address GHG
emissions in this rulemaking. To help conceptualize FHWA's framework
for analyzing its authority under Title 23, U.S.C., this preamble
restates these provisions as follows:
In Section 101(b)(3)(G), Congress declared that
``transportation should play a significant role in promoting economic
growth, improving the environment, and sustaining the quality of
life.''
Section 134(a)(1) states as a matter of transportation
planning policy that ``[i]t is in the national interest to encourage
and promote the safe and efficient management, operation, and
development of surface transportation systems . . . while minimizing
transportation-related fuel consumption and air pollution through
metropolitan and statewide transportation planning processes identified
in this chapter.''
Section 134(c)(1) requires MPOs to develop long range
plans and transportation improvement programs to achieve the objectives
in 23 U.S.C. 134(a)(1) through a performance-driven, outcome-based
approach to planning.
Section 134(h) defines the scope of the metropolitan
planning process. Paragraphs (h)(1)(E) and (I), respectively, require
consideration of projects and strategies that will ``. . . protect and
enhance the environment, promote energy conservation, improve the
quality of life . . .'' and ``. . . improve the resiliency and
reliability of the transportation system . . .''.
Section 135(d)(1) defines the scope of the statewide
planning process. Paragraphs (d)(1)(E) and (I), respectively, require
consideration of projects, strategies, and services that will ``. . .
protect and enhance the environment, promote energy conservation,
improve the quality of life . . .'', and ``. . . improve the resiliency
and reliability of the transportation system . . .''.
Section 135(d)(2) requires the statewide transportation
planning process to ``. . . provide for the establishment and use of a
performance-based approach to transportation decision-making to support
the national goals described in Section 150(b) of this title . . .''.
The FHWA reaffirms that these Title 23, U.S.C., provisions make it
clear that assessing infrastructure performance under 23 U.S.C.
150(c)(3) properly encompasses the assessment of environmental
performance, including GHG emissions and other climate-related matters.
As noted in FHWA's May 2018 repeal of the 2017 GHG measure, nothing in
the statute specifically requires FHWA to adopt a GHG emissions
measure. However, consistent with the statutory provisions cited above,
no provision of law prohibits FHWA from adopting a GHG emissions
measure, despite ample opportunity for Congress to do so.
On November 15, 2021, President Biden signed the Infrastructure
Investment and Jobs Act (IIJA) (Pub. L. 117-58, also known as the
``Bipartisan Infrastructure Law'') (BIL) into law. The BIL does not
explicitly direct FHWA to assess environmental performance. However,
Congress set forth new programs and eligibilities under BIL that State
DOTs and MPOs will use to address GHG emissions, and environmental
performance will be central to proper administration of the programs.
Thus, this GHG measure will help State DOTs and MPOs effectively use
these new transportation dollars. For example, BIL authorized a new
Carbon Reduction Program (CRP) codified at 23 U.S.C. 175. The CRP
provides billions of dollars for Fiscal Years 2022-2026 for use on a
range of projects that can demonstrate reductions in transportation
emissions over the project's lifecycle. The CRP also requires State
DOTs to develop a carbon reduction strategy in consultation with any
MPO designated within the State to support efforts to reduce
transportation emissions and identify projects and strategies to reduce
these emissions. See 23 U.S.C. 175(d). Similarly, BIL included new
language regarding national electric vehicle charging and hydrogen,
propane, and natural gas fueling corridors to support changes in the
transportation sector that help achieve a reduction in GHG emissions.
See 23 U.S.C. 151. These programs are two examples of Congress' express
focus on using transportation programs to reduce GHG emissions from
transportation sources. The FHWA's GHG measure will help State DOTs and
MPOs track the effectiveness of their transportation investments in
projects that reduce GHG emissions, both through these programs and
through other programs, such as the Surface Transportation Block Grant
Program authorized at 23 U.S.C. 133.
The establishment of the GHG measure does not force investments in
specific projects or strategies to reduce emissions, nor does it
require the achievement of an absolute reduction target. However, FHWA
has determined that the targets for the GHG measure
[[Page 85369]]
should show a reduction in CO2 emissions. As discussed in
response to comments in Section VII of this preamble, the establishment
of declining targets is vital given the urgency of the climate crisis.
Establishing declining targets will help State DOTs and MPOs plan
toward reductions in GHG emissions and make Federal infrastructure
investment decisions that reduce climate pollution, a principle set
forth in E.O. 14008 (86 FR 7626). State DOTs and MPOs will set targets
that indicate a reduction in CO2 emissions, which FHWA has
determined will be supportive of the policy goals set forth in 23
U.S.C. 150(b).
Although the rule requires declining targets for CO2
emissions, FHWA is not setting forth any requirements in this
rulemaking to determine how State DOTs and MPOs should determine their
declining targets. In addition, as directed by 23 U.S.C. 145, States
determine which of their projects shall be federally financed by
Federal-aid highway formula dollars. State DOTs and MPOs will set and
determine targets based on appropriate data as informed by State DOT
and MPO policies and priorities. The FHWA is not prescribing what
declining targets would look like in each State or MPO, and FHWA is not
requiring State DOTs and MPOs to achieve targeted emission reductions,
nor prescribing the selection of specific projects under this
rulemaking. Thus, this approach is consistent with the Agency's
authority under 23 U.S.C. 150(c) to establish measures for States to
use to assess the performance of the Interstate and non-Interstate NHS
in the furtherance of the national goal to enhance the performance of
the transportation system while protecting and enhancing the natural
environment.
In addition, adopting the measure for GHG emissions under 23 U.S.C.
150(c)(3) is appropriate in light of the structure of the TPM program.
As discussed in the NPRM, Congress required FHWA to establish
performance measures for a number of programs in addition to the NHPP,
including an emissions related measure for the CMAQ Program under 23
U.S.C. 149. As discussed in the NPRM and in response to comments in
Section VII of this preamble, the existence of the CMAQ emissions
measure has raised questions regarding whether Congress intended FHWA
to only measure emissions when those emissions are related to CMAQ,
which is limited to criteria pollutants and nonattainment or
maintenance areas under the Clean Air Act. However, this language only
indicates congressional intent that FHWA establish a performance
measure for on-road mobile source emissions for the purposes of
carrying out the CMAQ Program. Nothing in 23 U.S.C. 150 limits measures
that take into account emissions only to measures established for the
purposes of carrying out the CMAQ Program. The FHWA has determined that
it is appropriate to examine relevant emissions as part of assessing
performance of the Interstate and non-Interstate NHS in support of the
NHPP.
For all of these reasons, FHWA asserts the GHG measure is
consistent with FHWA's authority under 23 U.S.C. 150(c).
Reconsideration of Previous Actions
As discussed in Section II of this preamble, and detailed in
Section III.C of the NPRM, FHWA has previously proposed and finalized
actions related to a GHG measure. Specifically, FHWA previously
finalized the PM3 rule, through which the Agency considered extensive
public comments on whether and how FHWA should establish a GHG measure.
The FHWA determined that it was appropriate to measure environmental
performance, specifically as the percent change in CO2
emissions from the reference year 2017, generated by on-road mobile
sources on the NHS (82 FR 5970). On October 5, 2017 (82 FR 46427),
however, FHWA proposed to repeal the 2017 GHG measure. As discussed in
more detail in the NPRM to this action, FHWA repealed the GHG measure
on May 31, 2018 (83 FR 24920), in light of policy direction from the
previous administration to review existing regulations to determine
whether changes would be appropriate to eliminate duplicative
regulations, reduce costs, and streamline regulatory processes, and
after considering public comments received. The repeal was effective on
July 2, 2018. The FHWA identified three main reasons for the repeal:
(1) reconsideration of the underlying legal authority; (2) the cost of
the GHG measure in relation to the lack of demonstrated benefits; and
(3) potential duplication of information produced by the GHG measure
and information produced by other initiatives related to measuring
CO2 emissions.
As part of this rulemaking, FHWA evaluated each of these rationales
to examine whether they remain appropriate in light of current
information. First, FHWA proposed, and now finalizes, that the Agency
has reconsidered its interpretation of the statute. Consistent with the
reasoning set forth in the PM3 rule, FHWA believes adopting this
measure under 23 U.S.C. 150(c) is appropriate in light of the Agency's
authority under that section and based on the Agency's authority under
Title 23, U.S.C. as a whole, as previously described in this section
and detailed further in Section III.B of the NPRM. See 87 FR 42407-
42410. Second, FHWA has determined that the benefits of the rulemaking,
although difficult to quantify, are substantial and justify finalizing
this action. In its 2022 NPRM, FHWA described how the substantial
benefits of this regulation justified reconsidering and rejecting the
Agency's conclusion in the 2018 final rule that the benefits of a GHG
measure were too speculative and outweighed by the costs to justify
retaining the measure as part of the TPM program. See 87 FR 42410-
42411. The benefits and policy rationale for this regulation are
further described in Section IV of this preamble. Third, and as
discussed in the 2022 NPRM, see 87 FR 42411-42412, FHWA has determined
that the information produced by the GHG measure is not duplicative in
relation to information produced by other initiatives related to
measuring CO2 emissions, but rather complements that data to
support a whole-of-government approach to addressing GHG emissions. The
importance of this measure is further described in Section IV of this
preamble.
FHWA adopts in full its analysis in the 2022 NPRM justifying the
reconsideration and rejection of the conclusion from the 2018 final
rule that 23 U.S.C. 150 did not provide FHWA with authority to measure
the environmental performance of the NHS and adopt a GHG measure, and
that the overall statutory scheme of Title 23, U.S.C. supported a
narrower interpretation of performance of the NHS, and emphasizes some
key points here. In the 2018 repeal, FHWA concluded that 23 U.S.C.
119(d)(1)(A) delineates the national goals that are relevant to
eligibility of projects for funding under the NHPP, and the national
goals included in section 119(d)(1)(A) 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, rather than environmental performance. 83 FR 24923-
24924. Upon reexamination of the statute, FHWA has determined that this
previous interpretation was incorrect. Section 119(d)(1) of Title 23,
U.S.C., establishes eligibility criteria for using funds apportioned to
a State for carrying out the NHPP, but does not set forth all
[[Page 85370]]
relevant considerations for carrying out the program. Specifically,
States are also required to establish asset management plans under 23
U.S.C. 119(e). These plans shall include strategies toward improving or
preserving the condition of the assets and the performance of the
system, including supporting progress toward the national goals in 23
U.S.C. 150(b). FHWA's previous interpretation ignored Congress's
express direction for States to develop these plans for the NHS, which
address both asset condition and system performance, and referenced all
of the national goals in section 150(b), rather than a subset of goals
such as the goals identified in 23 U.S.C. 119(d)(1). In addition, FHWA
observes that 23 U.S.C. 119(d)(2) provides eligibility for projects
under the NHPP that go beyond the limited subset of national goals
listed in section 119(d)(1). The statute identifies eligible projects
that support the national goal of environmental sustainability, such as
environmental restoration and pollution abatement, control of noxious
weeds and establishment of native species, and other environmental
mitigation efforts. See 23 U.S.C. 119(d)(2)(M)-(O). When FHWA repealed
the PM3 rule and determined that performance measures under 23 U.S.C.
150(c)(3) are limited to advancing the nationals goal in section
119(d)(1), the Agency did not appropriately consider the section 119(e)
requirement to develop an asset management plan that supports
achievement of all national goals in 23 U.S.C. 150(b), and eligibility
for projects that support achieving environmental sustainability. In
reexamining this authority, FHWA has determined that the Agency must
consider the totality of 23 U.S.C. 150(b) when interpreting the meaning
of performance on the Interstate and non-Interstate NHS and how
performance is to be measured.
Additionally, FHWA has identified above several other provisions of
Title 23, U.S.C., that support FHWA's proposal to address GHG emissions
in this rulemaking and make it clear that assessing infrastructure
performance under 23 U.S.C. 150(c)(3) properly encompasses the
assessment of environmental performance, including GHG emissions. In
the 2018 repeal final rule, FHWA considered these provisions irrelevant
because they do not ``specifically direct[ ] or require[ ] FHWA to
adopt a GHG measure.'' 83 FR at 24923. However, these provisions do not
prohibit FHWA from adopting a GHG measure--nor does any other provision
in Title 23--and by stating the importance of protecting the
environment and improving the resiliency of the transportation system,
including through the use of performance management, these provisions
clearly support the use of a GHG measure to assess the environmental
performance of the NHS. As discussed above, the passage of BIL added
additional programs and eligibilities to Title 23, and the
administration of these programs will greatly benefit from the
measurement of the environmental performance, including measurement of
GHG emissions on the NHS. FHWA believes that these provisions of Title
23, including those added after the 2018 repeal of the GHG measure,
serve to underscore the importance of reestablishing the GHG measure.
As discussed in the preamble to the NPRM, FHWA acknowledges that
this action largely reestablishes a measure similar to the measure
finalized in 2017 and repealed in 2018. See 83 FR 24920. However, as
discussed in the preamble to the NPRM, FHWA expects that States and
MPOs have no reliance interests resulting from establishment and the
repeal of the 2017 GHG measure. See 87 FR 42410. The FHWA repealed the
2017 GHG measure before the respective due dates for target setting or
reporting, and FHWA is unaware of any State DOTs or MPOs that incurred
costs because of the promulgation and prompt repeal of that measure.
Nor did the repeal itself impose any compliance costs on State DOTs or
MPOs. Accordingly, FHWA does not expect this final rule to result in
any increased burden on State DOTs or MPOs by virtue of the fact that
FHWA previously established a similar measure that was repealed before
any State DOTs or MPOs relied on and implemented its target setting and
reporting requirements. This measure is a new one, which State DOTs and
MPOs have not previously implemented. As a result, FHWA expects that
States and MPOs would not have any reliance interests based on the
repeal of the 2017 GHG measure. After reviewing the comments on the
proposal, FHWA reaffirms that any potential reliance interest would be
outweighed by the benefits of this action, to the extent those
interests exist.
IV. Basis & Benefits of These Regulations
The FHWA believes that the performance management requirements are
a powerful tool for achieving all seven of the statutory national
transportation goals, including the Federal-aid highway program's
national goal for environmental sustainability identified under 23
U.S.C. 150(b)(6), and establishing a GHG measure in FHWA's TPM Program
will provide a consistent basis for addressing the environmental
sustainability of the transportation system and estimating on-road GHG
emissions. In addition, the GHG measure will result in a consistent set
of data that can be used to inform the future investment decisions of
the Federal Government, State DOTs, and MPOs towards achieving their
targets or goals.
By establishing the GHG performance measure, FHWA is taking action
to address the largest source of U.S. CO2 emissions. In
2021, the transportation sector accounted for 34.8 percent of total
U.S. CO2 emissions, with 82.7 percent of the sector's total
CO2 emissions coming from on-road sources.\7\ The
transportation sector is expected to remain the largest source of U.S.
CO2 emissions through 2050, increasing at an average annual
rate of 0.3 percent per year despite improvements in the energy
efficiency of light-duty vehicles, trucks, and aircraft.\8\ Factors
such as population growth, expansion of urban centers, a growing
economy, and increased international trade are expected to result in
growing passenger and freight movement. These changes can make GHG
reductions and environmental sustainability both more challenging to
implement and more important to achieve.\9\
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\7\ U.S. Environmental Protection Agency, 2023: Inventory of
U.S. Greenhouse Gas Emissions and Sinks: 1990-2021, available at
https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021.
\8\ U.S. Energy Information Administration, 2021: Annual Energy
Outlook 2021, available at https://www.eia.gov/outlooks/aeo/tables_ref.php.
\9\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. Choate,
S. DesRoches, S. Douglass, and R. Miller, 2018: Transportation. In
Impacts, Risks, and Adaptation in the United States: Fourth National
Climate Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R.
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research Program, Washington,
DC, USA, pp. 479-511. doi: 10.7930/NCA4.2018.CH12, available at
https://nca2018.globalchange.gov/chapter/12/.
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In addition to being the largest source of U.S. CO2
emissions,\10\ the transportation sector is increasingly vulnerable to
the effects of climate change including higher temperatures, more
frequent and intense precipitation, and sea level rise. Much of
existing transportation infrastructure was designed and constructed
without consideration of these changes. The Sixth Assessment Report by
the IPCC, released on August 7, 2021, confirms that human activities
are increasing GHG concentrations that have warmed
[[Page 85371]]
the atmosphere, ocean, and land at a rate that is unprecedented in at
least the last 2000 years.\11\ According to the report, global mean sea
level has increased between 1901 and 2018, and changes in extreme
events such as heatwaves, heavy precipitation, hurricanes, wildfires,
and droughts have intensified since the last assessment report in
2014.\12\ These changes in extreme events, along with anticipated
future changes in these events because of climate change, threaten the
reliability, safety and efficiency of the transportation system. At the
same time, transportation contributes significantly to the causes of
climate change \13\ and each additional ton of CO2 produced
by the combustion of fossil fuels contributes to future warming and
other climate impacts.
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\10\ See EPA, Inventory of U.S. Greenhouse Gas Emissions and
Sinks 1990-2021, at 2-28.
\11\ See IPCC, 2021: Summary for Policymakers. In: Climate
Change 2021: The Physical Science Basis. Contribution of Working
Group I to the Sixth Assessment Report of the Intergovernmental
Panel on Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
\12\ IPCC, 2021: Climate Change 2021: The Physical Science
Basis. Contribution of Working Group I to the Sixth Assessment
Report of the Intergovernmental Panel on Climate Change [Masson-
Delmotte, V., P. Zhai, A. Pirani, S.L. Connors, C. Pe[acute]an, S.
Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K.
Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield,
O. Yelek[ccedil]i, R. Yu, and B. Zhou (eds.)]. Cambridge University
Press. In Press.
\13\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A.
Choate, S. DesRoches, S. Douglass, and R. Miller, 2018:
Transportation. In Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 479-511. doi:10.7930/
NCA4.2018.CH12.
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The first step toward reducing GHG emissions involves inventorying
and monitoring those emissions. By establishing a consistent method for
estimating GHG emissions and reporting on trends, the GHG measure
aligns with E.O. 13990, E.O. 14008, and supports a U.S. target of
reducing GHG emissions economy-wide 50 to 52 percent below 2005 by
2030, on a course toward reaching net-zero emissions economywide by no
later than 2050.\14\ Section 1 of E.O. 13990, ``Protecting Public
Health and the Environment and Restoring Science to Tackle the Climate
Crisis,'' (86 FR 7037), articulates national policy objectives,
including listening to the science, improving public health and
protecting the environment, reducing GHG emissions, and strengthening
resilience to the impacts of climate change. The E.O. 14008, ``Tackling
the Climate Crisis at Home and Abroad,'' (86 FR 7619), recommits the
U.S. to the Paris Agreement and calls on the U.S. to begin the process
of developing its nationally determined contribution to global GHG
reductions. See E.O. 14008, Sec. 102. The E.O. 14008 also calls for a
government-wide approach to the climate crisis and acknowledges
opportunities to create well-paying, union jobs to build a modern,
sustainable infrastructure, to provide an equitable, clean energy
future, and to put the U.S. on a path to achieve net-zero emissions,
economywide, no later than 2050. See id., Sec. 201.
---------------------------------------------------------------------------
\14\ White House Fact Sheet: The Biden-Harris Electric Vehicle
Charging Action Plan (December 13, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/;
White House Fact Sheet: President Biden Sets 2030 Greenhouse Gas
Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs
and Securing U.S. Leadership on Clean Energy Technologies (Apr. 22,
2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/.
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As a matter of transportation policy, FHWA considers the GHG
measure essential not only to improve transportation sector performance
and work toward achieving net-zero emissions economy-wide by 2050, but
also to demonstrate Federal leadership in the assessment and disclosure
of climate pollution from the transportation sector. Measuring and
reporting complete, consistent, and timely information for on-road
mobile source emissions is necessary so that all levels of government
and the public can monitor changes in GHG emissions over time and make
more informed decisions about the role of transportation investments
and other strategies in achieving GHG reductions.
After reviewing the comments provided on the NPRM, FHWA has decided
to finalize the measure proposed in the NPRM, which is the percent
change in tailpipe CO2 emissions on the NHS relative to the
reference year. In choosing this measure, FHWA considered the measure's
sensitivity to strategies and policies of interest to transportation
agencies, as well as its simplicity, ease of calculation, and reliance
on data States already report to FHWA. In particular, the GHG measure
will utilize fuel use estimates collected by FHWA very shortly after
these data are finalized, providing a consistent and timely data source
that is better suited for setting targets and monitoring trends in
mobile source CO2 emissions on the NHS. As a new source of
information, the measure has the potential to result in greater public
awareness of GHG emissions trends, provide increased transparency and
improved decisionmaking at all levels of government, and support better
informed planning choices to reduce GHG emissions or inform tradeoffs
among competing policy choices. In these capacities, the proposed GHG
measure is integral to a whole-of-government approach to address
climate change and its effects.
V. Summary of Comments
The FHWA received 39,751 submissions to the docket, including
39,522 from 7 comment campaigns, in response to the NPRM, resulting in
236 unique submissions containing 999 individual comments. The
submissions were signed by 105,484 separate groups/individuals. The
FHWA received comments from 98 advocacy and interest groups (including
advocacy groups for active transportation and public transit, the
natural environment, climate change action, clean air, and equity/
environmental justice, among others), 31 State DOTs and the District of
Columbia DOT, 33 State Attorneys General, one State Governor, 33 MPOs,
two State environmental agencies, 10 County/Local government agencies,
as well as 57 U.S. Senators from 38 states and 56 U.S. Representatives
from 25 states. The FHWA also received comments from 24 industry
associations (including the American Association of State Highway
Transportation Officials (AASHTO), the Association of Metropolitan
Planning Organizations (AMPO), and the American Public Transportation
Association (APTA), as well as those representing highway and
transportation users, roadway materials producers and roadway builders,
and energy companies, among others). The FHWA also received comments
from over 104,500 private citizens, the majority of which were
submitted as part of comment campaigns.
VI. Summary of Changes Made in This Final Rule
This section provides a summary of the changes made in the rule
compared to the NPRM. Section VII provides further discussion on the
significant changes and the reasons they were made.
A. Reference Year
In the final rule, FHWA establishes that 2022 will be the reference
year for this measure. The FHWA has changed
[[Page 85372]]
the definition in 23 CFR 490.505 and updated the calculation of the
measure in 23 CFR 490.513(d) \15\ accordingly.
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\15\ In this section, the citations to 23 CFR part 490 refer to
provisions as amended by this final rule.
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B. Net-Zero
The definition of net-zero was removed from 23 CFR 490.101, and 23
CFR 490.105(e)(10) was revised so targets must be declining for
reducing tailpipe CO2 emissions on the NHS, but they are not
required to demonstrate reductions toward net-zero targets.
C. State DOT Targets & Reports
In the final rule, FHWA establishes that State DOTs will establish
initial targets for the GHG measure and report them no later than
February 1, 2024. 23 CFR 490.105(e)(1) and 490.107(d). The February 1,
2024, date required changes to several sections of existing regulation.
Below is a general summary of the initial target establishment
requirements, the reporting process for the State Initial GHG Report
due February 1, 2024, and the significant progress determinations that
will be completed after the State biennial reports submitted by October
1, 2024, and 2026.
State DOT Target Establishment & Reporting Related to February 1, 2024
The performance period for the GHG measure will begin January 1,
2022 and extend 4 years. 23 CFR 490.105(e)(1). By February 1, 2024,
State DOTs will establish initial targets for the GHG measure. 23 CFR
490.105(e)(1)(ii). Initially, State DOTs will establish 4-year targets;
2-year targets will not be established. 23 CFR 490.105(e)(1),
490.105(e)(4)(iii), and 490.105(e)(10)(i). For the initial 4-year
target, the reference year will be used as the baseline. 23 CFR
490.105(e)(10)(i)(C).
State DOTs will report their 4-year targets to FHWA in the State
Initial GHG Report by no later than February 1, 2024. 23 CFR
490.107(d). The State Initial GHG Report shall include the State DOT's
4-year target for the GHG measure, the basis for the target, a
discussion of how the target relates to other longer-term performance
expectations, and the metric information for the reference year. 23 CFR
490.107(d)(1). The metric reported will be calculated using the data
specified in 23 CFR 490.107(d)(2). Because of the 2024 State Initial
GHG Report, State DOTs will not include additional GHG information in
the 2024 Mid Performance Period Progress Report, due October 1, 2024.
23 CFR 490.107(b)(2)(i). Biennial reporting related to the GHG measure
will begin with the 2026 Full Performance Period Progress Report and
the 2026 Baseline Performance Period Report. 23 CFR 490.107(b)(1)(i),
490.107(b)(2)(i), and 490.107(b)(3)(i).
Significant Progress Determination on Initial Targets
After the 2026 Full Performance Period Progress Report, FHWA will
determine whether a State DOT has made significant progress toward the
achievement of the 4-year target for the GHG measure. The FHWA will use
the data described in 23 CFR 490.109(d)(1) when calculating the actual
performance and making the significant progress determination. The
performance for the reference year will be used as the baseline
performance in the 2026 significant progress determination. 23 CFR
490.105(e)(10)(i)(C).
The significant progress determination requirements related to the
GHG measure will be phased in as described in 23 CFR 490.109(e)(6). The
FHWA will not determine significant progress toward 2-year targets for
this measure after the 2024 Mid Performance Period Progress Report
since 2-year targets will not have been established, and information
related to the GHG measure will not have been included in the 2024 Mid
Performance Period Progress Report. Therefore, in 2024, FHWA will
classify the assessment of progress toward the achievement of 2-year
targets for the GHG measure as ``progress not determined'' and they
will not be subject to any additional reporting requirements. 23 CFR
490.109(e)(6).
Biennial Reporting
FHWA revised proposed changes to section 490.107(b)(1), (b)(2), and
(b)(3) to require biennial reporting related to the GHG measure to
begin with the 2026 Full Performance Period Progress Report. And,
consistent with 23 CFR 490.105(e)(5), the State DOT's 2- and 4-year
targets will be reported in the 2026 Baseline Performance Period
Report. See the discussion under ``State DOT Data for the GHG Metric
Calculation'' for more information on the State DOT biennial reporting
associated with the GHG metric.
D. State DOT Data for the GHG Metric Calculation
State DOTs are required to calculate and report both the GHG
measure and the GHG metric, the latter of which is defined as the
calculation of tailpipe CO2 emissions on the NHS for a given
year computed in million metric tons (mmt) and round to the nearest
hundredth. 23 CFR 490.511(c). State DOTs use the metric to calculate
the measure, which is the percent change between the current year and
the reference year. To calculate the metric, State DOTs require several
data inputs, and they are defined in 23 CFR 490.511(c). To ensure
consistent calculation of the metric, the data requirements are defined
in 23 CFR 490.509. To provide transparency and consistency, FHWA
defines the specific data sources it will use when it calculates the
metric and measure for the significant progress determination in 23 CFR
490.109(d).
In this final rule, proposed 23 CFR 490.509(h) was revised so that
the State DOT will be able to use their best available vehicle miles
traveled (VMT) data when establishing targets, reporting baseline and
actual performance and discussing progress. This change addresses a
comment that stated VMT data might not be finalized within the Highway
Performance Monitoring System (HPMS) for all States by August 15th. The
VMT data used by State DOTs will represent the prior calendar year and
should be consistent with the final VMT data submitted by the State DOT
to HPMS, to the maximum extent practicable. 23 CFR 490.509(h). The HPMS
data as of November 30, 2023, will be used to calculate the metric for
the reference year. 23 CFR 490.509(h).
Because FHWA will not necessarily have the VMT data the State DOT
used, the biennial reporting requirements in proposed 23 CFR
490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and (b)(3)(ii)(I) were revised in
this final rule to require the State DOT to report the GHG metric value
they calculated, the individual values used to calculate the GHG
metric, and a description of the data source(s) used for the VMT
information. This final rule removes the proposed requirement for the
State DOT to report CO2 emissions on all public roads as
part of reporting the metric information since the values used to
calculate the GHG metric can be used to calculate the all-roads value.
A corresponding change was made to 23 CFR 490.511(f)(2) to align with
the metric reporting requirements in the State DOT's biennial reports.
Section 490.109(d)(1)(vi) and (d)(1)(vii) were revised to require
the significant progress determination to calculate the GHG metric and
measure for the baseline and actual performance using the HPMS data
available on November 30th of the year the significant progress
determination is made. For the reference year, FHWA will use the HPMS
data as of November 30, 2023. 23 CFR 490.109(d)(1)(vi)-(vii).
[[Page 85373]]
Section 490.109(d)(1)(viii) was added to specify that the significant
progress determination will use the CO2 factors specified in
section 490.509(f).
In the final rule, FHWA has added the requirement for State DOTs to
submit the State Initial GHG Report, as described in VI.C. For that
report, the State DOT will use the data specified in 23 CFR
490.107(d)(2) to calculate the metric.
Please note, 23 CFR 490.511 includes different requirements for
State DOTs and MPOs when calculating the metric used to calculate the
GHG measure. The State DOT's method is defined in 23 CFR 490.511(c) and
the method will be the same for all states. The MPOs are granted
flexibility in how they calculate the metric, as described in 23 CFR
490.511(d). This section only discusses the changes made in the final
rule in relation to the data the State DOT will use when calculating
the GHG metric. The changes made related to the MPO metric requirements
are summarized below in Section VI.E.
E. Initial MPO Targets & Reports
The final rule, in 23 CFR 490.511(d), retains the additional
flexibility granted to MPOs in how they calculate the GHG metric. The
final rule removes the proposed requirement for MPOs and State DOTs to
mutually agree upon a method for calculating the metric, and instead
requires MPOs to report a description of their metric calculation
method(s). When that method is not one of the ones specified in 23 CFR
490.511(d), the MPO will include information demonstrating the
method(s) has valid and useful results for measuring transportation
related CO2. 23 CFR 490.107(c)(2)(ii). While MPOs are not
required to select a metric calculation in coordination with their
State DOT, they are encouraged to coordinate with the State DOT on the
data used to the maximum extent practicable.
The final rule removes the proposed requirement for the MPO to
report CO2 emissions on all public roads.
F. Severability
The final rule adds a new section 23 CFR 490.515 that contains a
severability clause applicable to the amendments to 23 CFR part 490
made by this final rule. FHWA believes that the amendments to part 490,
including establishment and calculation of the GHG performance measure
and declining targets, are capable of operating independently of one
another. If one or more aspects of the GHG measure are determined to be
invalid, the remaining provisions should remain unaffected and in
force.
G. Other Changes
The final rule contains several technical changes from the proposed
rule. These changes are described in Table 1.
Table 1--Technical Edits to the Final Rule
------------------------------------------------------------------------
CFR section Description of change
------------------------------------------------------------------------
23 CFR 490.101............... Corrects the abbreviated name for the
Fuels and Financial Analysis System--
Highways (Fuels & FASH) database.
Corresponding changes were made
throughout the rule.
23 CFR 490.105(c)(5)......... Clarifies language describing the GHG
measure.
23 CFR 490.105(d)(4)......... Clarifies the applicability of the joint
targets.
23 CFR 490.105(e)(4)(i)(C)... Moves information about the performance
period from the location proposed in the
NPRM to here to align with references to
the performance period throughout 23 CFR
part 490.
23 CFR 490.105(f)(10)........ Clarifies rule language.
23 CFR 490.107(a)(1)......... Updates language to capture the edition
of Section 490.107(d) in the final rule.
23 CFR 490.107(c)(2)......... Revises the structure and organization of
the paragraph to improve readability.
23 CFR 490.109(d)(1)(v) and Clarifies that the reference year data
(d)(1)(vii). will not be updated each time the data
for the previous year is compiled.
23 CFR 490.109(d)(1)(viii)... Clarifies that the CO2 factor specified
in Section 490.509(f) will be used.
23 CFR 490.109(e)(4)(vi)..... Substitutes ``accepted'' instead of
``cleared.''
23 CFR 490.109(e)(4)(vii).... Adds the HPMS data extraction date.
Listing this date is consistent with
Section 490.109(e)(4)(vi) and does not
change the intended approach.
23 CFR 490.109(f)(1)(v)...... Revises rule language to use consistent
terminology.
23 CFR 490.505............... Clarifies that approximately 97 percent
of on-road tailpipe GHG emissions are
CO2.
23 CFR 490.509(f)............ Clarifies rule language.
23 CFR 490.509(f)(2)......... Revises rule language to use consistent
terminology.
------------------------------------------------------------------------
VII. Section-by-Section Discussion
This final rule was developed in response to comments received on
the NPRM. Section VII summarizes major comments received and any
substantive changes made to each section in this final rule. Editorial
or minor changes in language are not addressed in this section. For
sections where no substantive changes are discussed, the substantive
proposal from the NPRM has been adopted in this final rule.
Questions Posed in the NPRM
The FHWA requested comment on a number of items in the NPRM. The
FHWA invited comments on the following:
How should FHWA structure improving targets for the GHG
measure, as well as the associated reporting and significant progress
requirements, and how could these targets align with and inform
existing transportation planning and programming processes?
Besides requiring targets that reduce GHGs over time, are
there any specific ways the proposed GHG measure could be implemented
within the framework of TPM to better support emissions reductions to
achieve national policies for reductions in total U.S. GHG emissions?
What changes to the proposed measure or its implementation
in TPM could better the impact of transportation decisions on
CO2 emissions, and enable States to achieve tailpipe
CO2 emissions reductions necessary to achieve national
targets?
In instances that MPOs are establishing a joint UZA
target, should FHWA require that the individual MPO-wide targets be the
same as the jointly established UZA target?
Should MPOs that establish a joint UZA target be exempt
from establishing individual MPO-level targets, and instead only be
required to adopt and support the joint UZA target?
[[Page 85374]]
In cases where there are multiple MPOs with boundaries
that overlap any portion of an UZA, and that UZA contains NHS mileage,
should each of those MPOs establish their own targets, with no
requirement for a joint UZA target?
Are there other approaches to target setting in UZAs
served by multiple MPOs that would better help MPOs reach net-zero
emissions?
The FHWA also requested comment on assumptions that were developed
as part of the RIA, as well as information on other benefits or costs
that would result from implementation of the rule, as follows:
The RIA includes assumptions regarding the applicability,
level of effort and frequency of activities under proposed 23 CFR
490.105, 490.107, 490.109, 490.511, and 490.513. Are these assumptions
reasonable? Are there circumstances that may result in greater or
lesser burden relative to the RIA assumptions?
Would the staff time spent implementing this measure
reduce the burden of carrying out other aspects of State DOT and MPO
missions, such as forecasting fuel tax revenues? If so, please describe
and provide any information on programs that would benefit from this
measure and estimate any costs that would be reduced by implementing
this measure.
Would the proposed rule result in economies of scale or
other efficiencies, such as the development of consulting services or
specialized tools that would lower the cost of implementation? If so,
please describe such efficiencies and provide any information on
potential cost savings.
Would the proposed rule result in the qualitative benefits
identified in the RIA, including more informed decisionmaking, greater
accountability, and progress on National Transportation Goals
identified in MAP-21? Would the proposed rule result in other benefits
or costs? Would the proposed measure change transportation investment
decisions and if so, in what ways? For State DOTs and MPOs that have
already implemented their own GHG measure(s), FHWA welcomes information
on the impact and effectiveness of their GHG emissions measure(s).
The FHWA received many comments on these items, and thanks
commenters for their useful input. The FHWA considered these comments
in developing this final rule and responds to significant adverse
comments related to these questions and other comments in the following
section.
General Comments
FHWA's Legal Justification for the GHG Measure
Comment: A large number of commenters addressed FHWA's legal
authority for this measure. Many commenters affirmed FHWA's legal
authority to establish the measure under 23 U.S.C. 150. These
commenters note that under MAP-21, FHWA is required to establish
``performance'' measures to assess performance of the Interstate and
non-Interstate NHS, see 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V), and FHWA's
interpretation of ``performance'' to include environmental performance
is consistent with the express statutory goals of the Federal-aid
highway program, which include environmental sustainability under 23
U.S.C. 150(b)(6). In contrast, many commenters disputed FHWA's legal
authority to establish the proposed measure. Several commenters stated
that, contrary to FHWA's statements, this action will in fact set
performance targets for the States and MPOs by requiring State DOTs and
MPOs with NHS mileage to establish declining CO2 emissions
targets that align with the Administration's net-zero targets, while
FHWA's authority is limited to establishing measures for States to use
to measure performance. These commenters largely characterized the
measure as a requirement that State DOTs and MPOs reduce GHG emissions.
Notably, a large number of commenters stated that FHWA does not have
the authority to regulate GHGs, as Congress has not assigned such
authority to the Agency, and such authority would be more appropriately
assigned to the Environmental Protection Agency (EPA). Similarly,
several commenters claim that FHWA should not focus on regulating GHGs,
and instead should work with the EPA to reduce CO2
emissions. A commenter also asserted that the proposed rule
inappropriately seeks to rebalance Congress's funding priorities.
Response: As discussed in Section III of this preamble, FHWA
affirms that the Agency has the requisite statutory authority to adopt
the GHG measure. A significant number of commenters questioning FHWA's
authority to adopt the GHG measure have mischaracterized this
rulemaking. The FHWA is not regulating GHG emissions via this measure,
is not mandating any reductions, is not forcing States to select
specific projects, and is not asserting authority through this
rulemaking over GHG emissions from the transportation sector. Rather,
this measure is designed to provide State DOTs and MPOs with the
information necessary to make informed transportation decisions.
Although FHWA is requiring that State DOTs and MPOs set targets--
consistent with the rest of the TPM program--FHWA is not mandating
specific targets and is not setting those targets for State DOTs and
MPOs. The FHWA is also neither approving nor disapproving individual
targets. Thus, FHWA is applying the Agency's authority under 23 U.S.C.
150(c) and is not extending beyond that authority. However, upon
examining comments and the preamble to the NPRM, FHWA recognizes that
the language regarding aligning with net-zero targets could be
clarified to better indicate FHWA's intent. Therefore, FHWA is
clarifying that the Agency is not requiring that declining targets
align to the Administration's net-zero targets as outlined in the
national policy established under E.O. 14008. Rather, FHWA recommends
that State DOTs and MPOs consider the Administration's targets when
setting their declining targets.
Comment: Several commenters asserted that FHWA has not sufficiently
justified changing its approach. Commenters assert that FHWA is merely
reinstating a previous action and is changing the Agency's position
based on policy preferences provided in E.O.s rather than technical
expertise, such as by stating that the emissions measure would result
in substantial benefits, while also stating that the benefits are not
easily quantifiable. Several commenters assert that FHWA has failed to
adequately justify this measure by relying on general reports on
CO2 emissions and climate change harms. In addition,
commenters asserted that FHWA may not merely reexamine previous
assertions in rulemakings and must instead provide technical analysis
in support of the rulemaking. Commenters asserted that FHWA failed to
consider whether declining targets will interfere with other statutory
schemes by encouraging States to adopt electric vehicles to reduce GHGs
while not focusing on reducing criteria pollutants under CMAQ. In
addition, commenters assert FHWA failed to consider whether the
rulemaking will disadvantage States with a range of different
conditions, such as extreme climates and freight traffic.
Response: The FHWA disagrees with these commenters' assertions. The
FHWA has reexamined the rationale for the 2018 repeal and has
determined that FHWA has the authority to adopt this GHG measure and
has provided updated analyses identifying why the GHG measure is
appropriate and reasonable in light of FHWA's statutory mandate to
adopt performance measures. The
[[Page 85375]]
FHWA's legal authority, technical justification, and reasoned analysis
for this measure are detailed in the NPRM and in Sections III. and IV.
of this preamble. FHWA has acknowledged that it is changing the
position the Agency put forward in the 2018 repeal final rule and
provided detailed legal, technical, and policy reasons for doing so.
Commenters' assertion that FHWA must do more to justify changing its
approach has no basis in law. See FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515-16 (2009). The FHWA also disagrees with the
commenters' assertions about FHWA's failure to consider whether
declining targets will disadvantage States or cause any potential harm
through the adoption of electric vehicles. These comments are
predicated on a misconception that FHWA is requiring any specific
behavior by State DOTs and MPOs to reduce GHG emissions. The FHWA is
not mandating reductions, and this rulemaking does not require or
purport to require State DOTs or MPOs to select GHG reducing projects.
Rather, State DOTs and MPOs will determine appropriate declining
targets based on the conditions relevant to the State DOTs and MPOs.
The FHWA expects--but does not require--that this measure will help
State DOTs and MPOs select projects that will reduce GHG emissions.
Comment: Several commenters assert that FHWA lacks the authority to
adopt the GHG measure based on the recent decision of West Virginia v.
EPA, 142 S. Ct. 2587 (2022), related to the Major Questions Doctrine.
Response: The FHWA disagrees with the assertion that this measure
is inconsistent with recent Supreme Court precedent. This rulemaking is
not an extraordinary case. It does not involve a novel interpretation
of longstanding FHWA authority, nor does it represent an unheralded
assertion of regulatory authority with the significant economic and
political impacts that implicate a major questions case under West
Virginia v. EPA. The FHWA's approach is in line with FHWA's prior
requirements for performance measures related to the national goals in
23 U.S.C. 150(b). This rulemaking also does not require State DOTs and
MPOs to change their approach to selecting projects. Rather, the
measure will provide them with additional information to inform their
decisionmaking. As described in the RIA, this rulemaking has minimal
costs for State DOTs and MPOs. Additionally, there is clear
congressional authorization to establish performance measures under 23
U.S.C. 150(c). Contrary to inaccurate statements made by commenters,
FHWA is not regulating GHG emissions, but rather is setting forth an
approach by which to measure GHG emissions related to transportation on
the Interstate System and non-Interstate NHS, using publicly available
data, which States and MPOs can use to make better-informed
transportation investment decisions. Therefore, FHWA disagrees with the
commenters' assertions related to the Major Questions Doctrine.
Comment: A number of commenters stated that FHWA does not have the
authority to issue this GHG measure under 23 U.S.C. 150(c) because the
statute limits performance measures only to those described in that
subsection.
Response: As described in the NPRM and discussed in Section III of
this preamble, FHWA has reconsidered its previous interpretation that
this provision limits FHWA's authority to establish measures States use
to assess performance on the NHS to measures that focus on the physical
condition of the system and the efficiency of transportation operations
across the system. FHWA now concludes that 23 U.S.C. 150(c) limits FHWA
to establishing measures to carry out 23 U.S.C. 119 to measures that
assess performance on the Interstate System and the NHS. However, the
provision does not otherwise limit the meaning of ``performance.''
Thus, FHWA has concluded that the ``performance'' of the Interstate and
non-Interstate NHS includes environmental performance, and FHWA
disagrees with the commenters' conclusion that FHWA does not have
authority to adopt this GHG measure.
Comment: Commenters noted that although FHWA is not proposing any
penalties, FHWA would be able to influence the selection of projects by
States that rely on formula funds that Congress requires FHWA to
distribute to States.
Response: The FHWA did not propose, and is not finalizing, any
requirements for specific use of funds related to the GHG measure. The
measure and the associated targets established through the final rule
are intended to help State DOTs and MPOs consistently and transparently
monitor the current performance of the NHS, and plan transportation
projects in a way that protects the long-term performance of the NHS.
The final rule does not direct any action on the part of the State DOT
or MPO with respect to selecting projects under the Federal-aid highway
program. As per 23 U.S.C. 145, State DOTs determine which eligible
projects are federally funded, and FHWA reaffirms that nothing in this
final rule should be construed to affect that bedrock principle.
Therefore, FHWA disagrees with the commenters' assertion that FHWA may
influence project selection through this measure.
Comment: Commenters note that BIL did not provide FHWA with new
authority to regulate GHGs, but rather BIL established new programs to
incentivize and reward State DOTs and MPOs for implementing emissions
reduction strategies. Commenters also note that BIL and the Inflation
Reduction Act (IRA) (Pub. L. 117-169) did not authorize FHWA to mandate
GHG performance targets that States would be required to meet. One
commenter asserts that the legislative history of BIL indicates that
Congress considered but did not pursue climate change policy for FHWA.
Commenters assert that Congress specifically chose not to address GHG
emissions under 23 U.S.C. 150(c), and thus FHWA lacks authority to
issue this measure. Commenters also assert that since Congress
addressed GHG emissions in programs like the CRP under 23 U.S.C. 175
but did not add them to the performance measures in 23 U.S.C. 150(c),
Congress intended to set performance measures for some programs and not
set performance measures for other programs.
Response: As described in Section III of this preamble, FHWA's
authority for this measure arises under 23 U.S.C. 150(c), and FHWA's
interpretation of that authority is informed in part by new changes
from BIL. Additionally, FHWA did not propose--and is not finalizing--
any FHWA-mandated performance targets that States would be required to
meet. The BIL contains a number of programs that aim to reduce GHG
emissions from transportation sources, and collection and analysis of
the GHG measure can support implementation of those programs. However,
FHWA did not propose, and is not finalizing, any requirements related
to those programs. In addition, FHWA disagrees with the assertion that
BIL does not address climate change. As discussed in this preamble,
there are a number of GHG emissions-related provisions in BIL, such as
those found in division A, title I, subtitle D, titled ``Climate
Change.'' These provisions include both the CRP under 23 U.S.C. 175 and
the Promoting Resilient Operations for Transformative, Efficient, and
Cost-Saving Transportation (PROTECT) program under 23 U.S.C. 176. The
FHWA recognizes that these programs do not mandate reductions in GHG
emissions, and as such, FHWA
[[Page 85376]]
does not assert authority over GHG emissions. However, FHWA disagrees
with the commenters regarding congressional intent as related to the
measurement of GHGs under 23 U.S.C. 150(c). Congress did not provide
exact parameters for performance measures under 23 U.S.C. 150(c), and
it did not clarify, let alone impose restrictions on, these parameters
in BIL. Rather, FHWA must--based on the Agency's expertise--determine
how to structure performance measures. As described in this preamble
and in the preamble to the 2022 NPRM, FHWA has determined that
measuring environmental performance is vital to assessing performance
on the Interstate and non-Interstate NHS.
In addition, FHWA disagrees with the commenters' assertion that
Congress's designation of mandatory performance measures for some
programs but not others prohibits FHWA from exercising Agency expertise
to define performance of the Interstate and non-Interstate NHS.
Although Congress did not include a specific performance measure for
GHG-related programs in enacting 23 U.S.C. 150, Congress also decided
not to define performance under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) and,
in the decade since enactment of MAP-21, Congress has not qualified
FHWA's authority to define performance on the NHS, even after FHWA
promulgated a GHG measure in the PM3 rule. For the same reasons, FHWA
also disagrees with the commenters' statements regarding legislative
history of BIL and IRA, and in particular, the significance that can be
attributed to GHG and environmental performance-related language not
being included in the enacted legislation. By itself, congressional
inaction on a subject is an unreliable indicator of legislative intent
because ``several equally tenable inferences may be drawn from such
inaction, including the inference that the existing legislation already
incorporated the offered change.'' Pension Benefit Guaranty Corp. v.
LTV Corp., 496 U.S. 633, 650 (1990) (quoting United States v. Wise, 370
U.S. 405, 411 (1962)) (internal quotation marks omitted). In this
instance, there is no contemporaneous legislative record to explain why
language relating to measuring GHG emissions with respect to
performance of the NHS was not included in BIL. Moreover, BIL was
passed long after the PM3 rulemaking was proposed and finalized. If
anything, the fact that Congress was aware of FHWA's prior action to
promulgate a GHG performance measure and did not use the opportunity in
BIL to amend existing statutory language on performance measures or the
definition of performance on the NHS more likely indicates that
Congress intended to leave such determinations to Agency expertise to
be handled via regulatory authority. See id. Therefore, FHWA rejects
the commenters' interpretation of congressional intent to restrict
FHWA's authority to establish measures to assess performance of the
NHS.
Comment: Commenters disagreed with FHWA's approach to supporting
resilience through this measure. Commenters assert that both the NHPP
under 23 U.S.C. 119 and BIL are focused on the physical condition of
the highway system, and FHWA must focus on addressing physical issues
with the roads, rather than CO2 emissions. Commenters assert
that, likewise, resilience deals with impacts on the transportation
system, rather than impacts from emissions from the transportation
system. Commenters also contend that CO2 regulation is the
purview of the EPA, not FHWA.
Response: The FHWA disagrees with the commenters' limited view of
23 U.S.C. 119's substantial focus on resilience and their
characterization of FHWA's action to establish the GHG measure. As
discussed in section III above, the NHPP is not solely focused on the
physical performance of highways. For example, the requirements for
State asset management plans include strategies supporting the progress
toward the achievement of all national goals identified in 23 U.S.C.
150(b), including the goal to enhance the performance of the
transportation system while protecting and enhancing the natural
environment at 23 U.S.C. 150(b)(6). See 23 U.S.C. 119(e)(2). In
addition, the BIL amended the requirements for asset management plans'
lifecycle cost and risk management analyses so that they now must
specifically take into consideration extreme weather and resilience.
See 23 U.S.C. 119(e)(4)(D). In explicitly stating that both the purpose
of the NHPP under 23 U.S.C. 119 is to increase the resiliency of the
NHS and that environmental sustainability is an express national goal
of the Federal-aid highway program under 23 U.S.C. 150(b), Congress
clearly spoke to the importance of addressing environmental impacts
related to the transportation system. Assessing environmental
performance will support State and MPO efforts to increase the
resiliency of the NHS to mitigate the cost of damages from sea level
rise, extreme weather events, flooding, wildfires, or other natural
disasters. By addressing the performance of the transportation system
related to the largest source of U.S. CO2 emissions, FHWA is
implementing Congress's express direction regarding NHPP goals.
Measuring environmental performance though the GHG performance measure
will assist States to consider CO2 emissions from
transportation in the performance management framework and help frame
responses to the growing climate crisis. Reducing GHG emissions that
are causing increases in temperature, sea level, extreme weather
events, flooding, wildfires, and other natural disasters should then
decrease the severity and impact of those conditions in the future. The
FHWA has applied its expertise related to the transportation system and
found that mitigating the cost of damage from natural disasters also
requires helping State DOTs and MPOs address the cause of those
disasters. However, and as discussed above, FHWA is not regulating
CO2 emissions or otherwise mandating specific reductions.
Comment: One commenter asserted that FHWA's action is a broad
attempt to regulate GHGs, and Congress must speak more clearly before
FHWA may assert it has authority to mandate that all of the States and
Puerto Rico decrease on-road CO2 emissions in furtherance of
the Administration's emissions goals.
Response: The FHWA is not mandating that States or MPOs decrease
emissions or compelling States to undertake projects that reduce GHGs.
Consistent with the rest of the TPM program, FHWA is setting forth a
program to measure performance on the Interstate and non-Interstate
NHS, as directed by Congress.
Comment: One commenter stated that FHWA should develop an
Environmental Impact Statement (EIS) for this action because of the
rule's wide-ranging potential impacts.
Response: The FHWA disagrees that an EIS is appropriate for this
rulemaking. The FHWA has analyzed this rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
has determined that it is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. As discussed further in Section VIII of
this preamble, FHWA does not anticipate any adverse environmental
impacts from this rule, the purpose of which is to inform
decisionmaking about the transportation sector's contribution to GHG
emissions, and thereby contribute to environmental sustainability.
Therefore, a categorical exclusion is appropriate for this rulemaking
and no further NEPA approvals are required.
[[Page 85377]]
Comments on the Appropriateness of the Proposed Measure
Comment: A large number of commenters questioned the
appropriateness of the proposed measure to assess GHG emissions. A
small number of these commenters asserted the proposed measure is not
appropriate for rural States since rural residents need to drive
further to access essential goods and services and alternative
transportation modes are limited. In addition, several other commenters
asserted the proposed measure does not account for exogenous factors
beyond the control of State DOTs and MPOs, including population growth,
economic growth, goods movement, and State and local policies, among
others. Relatedly, many commenters recommended using a per-capita
measure in addition to or instead of a measure of total emissions. A
smaller number of commenters recommended using a measure of VMT to
demonstrate the impact of transportation decisions on changes in travel
behavior. Some commenters stated that the measure places an unequal
burden on rural States and States with growing populations.
Other commenters addressed technical considerations underlying the
suitability of the proposed measure. A couple of commenters indicated
the measure does not account for fluctuations to NHS mileage resulting
from roadway reclassifications, and one commenter asserted the measure
does not account for regional variations in vehicle fleet efficiency or
roadway speeds. Several commenters recommended the proposed measure
consider lifecycle processes, such as electricity used by electric
vehicles and embodied carbon associated with vehicle manufacture and
transportation infrastructure. One commenter recommended that the
measure account for excess fuel consumption associated with poor
pavement condition.
Response: The FHWA has retained the GHG performance measure
proposed in the NPRM, the percent change in tailpipe CO2
emissions on the NHS compared to the reference year, because of its
simplicity, ease of calculation, and reliance on data States already
report to FHWA. The FHWA acknowledges commenters' observations that the
GHG footprint of on-road transportation extends beyond tailpipe
CO2 emissions and includes lifecycle processes supporting to
generation of electricity used by EVs, the production of transportation
fuels, the manufacture of vehicles, and the construction and
maintenance of transportation infrastructure. However, FHWA believes
that addressing these factors in a GHG measure would lead to more
complicated and potentially less reliable calculations.
In addition, FHWA believes that the measure sufficiently accounts
for several of the factors cited by commenters, such as the effect of
roadway speed, changes vehicle fleet efficiency, and the effect of
pavement condition on fuel efficiency, all of which are represented
through State-reported fuel sales that are used to calculate the
measure. The FHWA also believes that a GHG measure is preferable to a
VMT-only measure, which would serve an indirect proxy for GHG emissions
that would not account for the benefits of highway operations and
pavement strategies implemented by State DOTs, electrification of the
vehicle fleet, or other improvements in vehicle efficiency. The GHG
measure FHWA is establishing also supports tracking of progress toward
GHG reduction goals. This would not be the case with a measure that
normalizes the effect of population or economic growth or excludes
truck CO2 emissions. The FHWA notes that regulation does not
prevent State DOTs and MPOs from using additional performance measures
at the local level.
The FHWA rejects the concept that this measure places an unequal
burden on rural States and States with rapidly growing populations, as
States with various conditions can implement this measure to help
evaluate performance. The FHWA also reiterates that this rulemaking
does not set any specific targets or require any GHG reductions. The
commenters' assertions about disadvantaging rural areas falsely assume
that this measure mandates GHG reductions and penalizes States and MPOs
that fail to achieve reductions. Neither the proposal, nor the final
rule, do any such thing. Therefore, FHWA disagrees with the commenters'
assertions about unequal burden on rural States and States with rapidly
growing populations.
Comments on Transportation Agencies' Influence on GHG Emissions
Comment: Several commenters addressed State DOTs' and MPOs' ability
to reduce GHG emissions year over year through planning and programming
of transportation projects. Several commenters asserted State DOTs and
MPOs have limited ability to materially reduce GHG emissions. These
commenters noted that performance against the GHG measure is affected
by many different factors outside the control of State DOTs and MPOs,
including a State government's policies, population and economic
growth, and fuel prices, among others. They also assert that
transportation planning and programming is a multiyear process and
State DOTs and MPOs cannot have a meaningful impact on GHG emission
reductions year over year.
In contrast, a large number of commenters asserted that
transportation agency decisions influence GHG emissions, and that a GHG
measure is important for evaluating the impact of these decisions. Many
commenters asserted that establishing a nationwide, uniform performance
measure would ensure consistency in tracking progress and help State
DOTs, MPOs, and FHWA to identify the most effective programs,
strategies, and projects for carbon reduction. The commenters also
asserted that the proposed performance measure would inform State DOT
and MPO efforts to carry out performance-based planning and project
selection, consistent with statutory requirements. Several commenters
asserted that the decisions that State DOTs make in terms of designing
infrastructure and constructing the built environment have a profound
influence on travel behavior. A large number of comment campaign
letters also asserted that a GHG measure is important for understanding
the long-term impact of transportation investments on GHG emissions and
to better connect transportation decisions with climate goals.
Response: Upon review of the comments, FHWA has retained the
measure as proposed. The FHWA agrees with commenters asserting that a
GHG measure is useful for evaluating the impact of transportation
investments and other policies on GHG emissions. The FHWA also agrees
that transportation investments have a meaningful impact on travel
behavior, and that transportation agencies' policies and programs
involving vehicle electrification, highway operations, and roadway
maintenance practices provide further opportunities to reduce GHG
emissions in absence of changes to travel behavior. The BIL provides
more than $27 billion in Federal funding to help State DOTs and MPOs
achieve their GHG reduction targets. This total includes $6.4 billion
in formula funding to State DOTs and local governments through the CRP
to support a range of projects designed to reduce on-road
CO2 emissions; $5 billion to State DOTs through the National
Electric Vehicle Infrastructure Formula Program to build out a national
electric vehicle charging network; $2.5 billion in competitive funding
to State DOTs and local governments to deploy electric vehicle
[[Page 85378]]
and alternative fuel infrastructure, $7.2 billion for the
Transportation Alternatives Set-Aside that State DOTs and local
governments can use to carry out pedestrian and bicycle infrastructure
projects, and more than $5 billion to ensure the nation's transit
systems are tackling the climate crisis.\16\ In addition,
transportation agencies have for decades been able to use Federal-aid
Highway Program funds to support projects that reduce GHG emissions,
including transit improvements, congestion reduction and traffic flow
improvements, freight and intermodal initiatives, idle reduction
technologies, travel demand management, carsharing, carpooling and
vanpooling, and bike and pedestrian facilities. Given the range of
options available to transportation agencies to reduce GHG emissions
and the significant financial resources provided by BIL, FHWA rejects
the premise that transportation agencies have limited capacity to
influence GHG emissions.
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\16\ See Biden-Harris Administration Takes Step Forward to
Combat Climate Change, Announces Proposed Transportation Greenhouse
Gas Emission Reduction Framework, available at https://highways.dot.gov/newsroom/biden-harris-administration-takes-step-forward-combat-climate-change-announces-proposed.
---------------------------------------------------------------------------
The FHWA also believes that it is important for the measure to
address total tailpipe CO2 emissions on the NHS rather than
normalizing this value by population or other factors, since
atmospheric CO2 concentrations are ultimately influenced by
the total quantity of CO2 emissions produced. The FHWA
believes a measure addressing total emissions supports a whole-of-
government approach to addressing climate change by implementing a
consistent measure of CO2 emissions on the NHS at the
National, State, and metropolitan levels. The FHWA is requiring State
DOTs and MPOs to establish declining GHG emissions targets. Contrary to
the commenters' assertions FHWA is not requiring States to set specific
declining target levels or achieve actual reductions in GHG emissions.
State DOTs and MPOs have flexibility to set targets that are
appropriate for their communities and that work for their respective
climate change and other policy priorities, as long as the targets are
declining.
Comments on Incentives and Disincentives
Comment: A large number of commenters addressed the creation of
incentives or disincentives to strengthen the proposed GHG measure. The
vast majority of these comments stated that the proposed rule would be
strengthened by including clear and specific incentives for those
States and regions that meet their targets, such as providing extra
points in competitive grant programs, favorable local match
requirements, or expediated project/application review processes. Other
commenters recommended restricting use of Federal transportation funds
to projects that reduce GHG emissions in States and regions that did
not meet their targets. A couple of commenters opposed creation of
incentives or disincentives.
Response: Under 23 U.S.C. 145, the Federal-aid highway program is a
federally assisted, State-administered program; FHWA does not determine
which eligible projects, as selected by States, shall be financed. The
FHWA cannot broadly limit the use of transportation funds in the manner
recommended by commenters, and FHWA does not have the authority to
restrict transportation funding for States that fail to meet their
targets. However, BIL includes new programs that will help States and
MPOs fund projects that reduce GHG emissions, which in turn, could
assist them in meeting the targets that they set. This topic is further
discussed in Section III this preamble. States and MPOs can
additionally leverage their own programs to reduce GHG emissions by
accounting for expected GHG impacts in the analysis and selection of
transportation projects.
Comments on Penalties
Comment: Several commenters addressed the possibility of penalties
being associated with the proposed measure. A few of these commenters
sought clarification on whether FHWA intends to apply a penalty
(including penalties associated with failure to comply with Federal
requirements under 23 CFR 1.36). Other commenters requested the final
rule include a section specifying that no penalties would be applied
for not meeting a target. Other commenters asserted that FHWA is in
fact providing a penalty for failing to reduce GHGs based on the
Agency's authority under 23 CFR 1.36.
Response: There are no specific penalties for failing to achieve
GHG targets. Rather, consistent with existing NHPP performance
measures, if significant progress is not made for the target
established for the GHG measure in 23 CFR 490.507(b), the State DOT
must document the actions it will take to achieve that target no later
than in its next biennial report, but is encouraged to do so sooner.
Significant progress toward achieving NHPP performance targets is
further described in 23 CFR 490.109. The FHWA did not propose specific
penalties for failure to achieve performance targets, and is not
finalizing any such penalty. Failure to achieve significant progress
for this measure, as defined in 23 CFR 490.109, will also not trigger
any penalties. State DOTs and MPOs that set a declining target but fail
to achieve their targets can satisfy regulatory requirements by
documenting the actions they will take to achieve that target in their
next biennial report. The FHWA does not set or approve the State DOT's
or MPO's targets.
Comments on Exemptions
Comment: Several commenters recommended various entities be exempt
from the proposed measure for various reasons. The majority of these
commenters asserted that rural States have limited options to reduce
transportation GHG emissions through transit and other strategies that
reduce VMT and should accordingly be exempted from the measure. A few
commenters recommended that States and MPOs in attainment with the
National Ambient Air Quality Standards be exempted from the GHG
measure. One commenter asserted that the GHG measure does not recognize
that rural States produce fewer GHG emissions than urban areas.
Response: The FHWA considered the comments suggesting certain
entities be exempt from the GHG measure and declines to do so.
Greenhouse gas emissions are produced on all NHS facilities. Once
released, CO2 and other GHGs take many years to leave the
atmosphere, resulting in increasing global atmospheric concentrations
of CO2 emissions regardless of where they are produced.
Urban and rural areas both contribute to increased carbon pollution in
the atmosphere, and FHWA believes this rule will provide both with the
tools to reduce carbon pollution. This is different from criteria
pollutants, which last no more than weeks in the atmosphere and only
impact local or regional air quality.
The FHWA also rejects commenters' suggestion that rural States have
limited options to reduce transportation GHG emissions. If these States
determine that transit and other measures to reduce VMT are not
effective means of influencing GHG emissions, they have a wide range of
alternative strategies and funding programs available. This includes
both formula funding and discretionary grants to deploy electric
vehicle charging infrastructure and thereby increase EV adoption,
funding to improve roadway operations, and asset management practices
to maintain
[[Page 85379]]
roads and reduce excess fuel consumption from poor road condition
surface. The FHWA reiterates that the final rule does not require rural
States, or any State, set targets at a specific level or to reduce GHG
emissions. The final rule also does not impose any penalties on a State
for failing to meet its GHG targets. Therefore, there is no
justification to exempt rural States, and doing so would run counter to
the purpose of this rule, which is to provide consistent and timely
information about on-road mobile source emissions on the NHS to support
better informed planning choices to reduce GHG emissions or inform
tradeoffs among competing policy choices.
Comments on Benefits of a GHG Measure
Comment: A large number of commenters addressed potential benefits
from the proposed GHG measure. Several commenters, including State
DOTs, that have independently measured and reported GHG emissions
asserted that a GHG performance measure can inform planning and
decision making, including project prioritization and statewide
transportation planning processes. A few of these commenters
additionally asserted that implementation of the proposed GHG measure
as part of TPM would complement existing GHG reduction efforts.
Additional benefits identified by commenters included: empowering State
and local leaders to better align their transportation decisions with
climate goals, enhancing transparency and accountability of investment
decisions, supporting a consistent and coordinated approach to reducing
GHG emissions across all levels of government, and supporting national
GHG emission reduction goals in accordance with E.O. 13990 and E.O.
14008.
By contrast, several commenters questioned the benefits of the
proposed measure. Several commenters asserted that DOTs and MPOs have
limited influence over GHG emissions. One commenter asserted that the
proposed measure would not help agencies identify projects to reduce
GHG emissions and a couple of commenters asserted that the measure
would not impact transportation decisions. Another commenter stated
this is because the proposed rule does not propose a method for
requiring continually decreasing GHG emissions and does not penalize
noncompliance.
Response: The FHWA is establishing a GHG emissions performance
measure in response to an increasingly urgent climate crisis and to
improve the transportation sector's GHG performance, which has lagged
behind other major U.S. sectors. The EPA estimates of GHG emissions
date back to 1990, and over that time the transportation sector has
gone from being the third largest to the largest source of U.S. GHG
emissions. The FHWA agrees with commenters that establishing a GHG
performance measure is a critical step in improving transportation
system performance and supporting national GHG reduction goals. A key
premise underlying the GHG measure is that measuring and reporting
complete, consistent, and timely information on CO2
emissions from on-road mobile sources will provide opportunities for
all levels of government and the public to make more informed decisions
that consider transportation's contribution to climate change and
opportunities to reduce GHG emissions. The FHWA believes that by
establishing a uniform GHG measure, it is more likely that GHG
emissions will be consistently and collaboratively considered by State
DOTs and MPOs through transportation planning and performance
management. The FHWA also agrees with the comments enumerating the
benefits of establishing the GHG measure.
The FHWA disagrees that State DOTs and MPOs have limited influence
over GHG emissions. As noted earlier, BIL provides more than $27
billion in Federal funding to help State DOTs and MPOs achieve their
GHG reduction targets, and States have additional ability to influence
GHG emissions through highway operations and roadway maintenance. The
FHWA also disagrees with commenters asserting that a GHG measure would
not inform planning and investment decisions. As noted in comments from
agencies that have implemented their own GHG measures, performance-
based approaches that include GHG emissions have been successfully used
to guide planning and investment decisions.
Comments on Burden Posed by a GHG Measure
Comment: Several commenters identified concerns about the impact of
the proposed rule on State DOTs and MPOs. Several commenters asserted
that the proposed rule would duplicate established and effective
programs such as fuel economy standards established under the Corporate
Average Fuel Economy (CAFE) Program, and transportation CO2
estimates published by EPA and the Department of Energy (DOE). Other
commenters asserted the implementation of calculating and tracking GHG
emissions would be overly burdensome, and that the costs of complying
with declining targets would be significant for some States. A few
commenters additionally asserted that the proposed GHG measure would
not be sufficient for making program- and project-level investment
decisions.
Response: FHWA disagrees that the measure established under this
rule would place undue burden on States and MPOs. The FHWA also
disagrees that the GHG measure would duplicate other Federal programs
addressing transportation GHG emissions. A key purpose of the GHG
measure is to provide an information source to help State DOTs, MPOs
and other agencies set targets, monitor trends, and evaluate the impact
of transportation investments and other strategies to reduce on-road
GHG emissions. This is a different function from the CAFE program,
which regulates GHG emissions rates for new vehicles and is not
intended to account for factors such as changes in travel demand,
congestion, and other factors affecting total on-road GHG emissions.
While Federal agencies such as EPA and DOE publish estimates of total
transportation CO2 emissions, these data are not
disaggregated to reflect on-road activity, and also lag the publication
of FHWA fuel use data by up to a year. Since FHWA's GHG measure
specifically addresses CO2 on-road activity and utilizes
FHWA's data for the estimated fuel volumes distributed shortly after
its publication, it will serve as a comprehensive and timely
information source to support transportation decision making and to
track progress toward national goals.
Several State DOTs that have independently implemented their own
on-road tailpipe CO2 measure observed that all State DOTs
already compile the necessary data as part of existing reporting
obligations. These commenters asserted that the labor hour assumptions
from the RIA are reasonable, that neither the estimation of the measure
nor target setting would result in significant burdens for State DOT
staff.
Lastly, FHWA disagrees that the cost of complying with declining
targets will be burdensome to transportation agencies. The BIL provides
over $27 billion in Federal funding to help State DOTs and MPOs achieve
the declining GHG targets that they will set under this rule. The rule
does not impose compliance costs associated with achieving declining
targets since the rule does not require that emissions actually
decrease or establish any penalties in the event that declining targets
are not achieved.
[[Page 85380]]
Sec. 490.101 Definitions
Comments on the Measure's Relationship to National GHG Goals
Comment: A large number of commenters addressed the proposed
performance measure's relationship to the national GHG goals. Several
commenters asserted that the proposed performance measure would support
the national GHG goals and expressed support for this connection. A
smaller number of commenters asserted that the proposed performance
measure would not support the national goals, as meeting them through
the targets is unattainable/unrealistic, would require actions beyond
State DOT/MPO authority, and would not match the timeline needed to see
improvements from BIL-funded projects.
In addition, several of these commenters asked for clarifications
related to the Administration's national goals for reducing GHG
emissions. One commenter asked whether the declining targets must
demonstrate a 50-52 percent reduction in on-road CO2
emissions relative to 2005 levels by 2030 and net-zero on-road
CO2 emissions by 2050, or whether the targets must only aid
in meeting the Administration's goals. One commenter requested
additional guidance on how to set targets consistent with the national
GHG goals for 2030 and 2050, and another requested guidance on how to
translate the proposed GHG targets, which would be expressed relative
to 2021 levels, to the Administration's goals, which are expressed
relative to 2005 levels. Another commenter requested clarification on
the meaning of net-zero, and asked whether FHWA will provide mechanisms
to offset remaining emissions to achieve net-zero by 2050.
Response: Upon considering public comments, FHWA recognizes that
the reference to net-zero targets and national GHG goals in the NPRM
may have caused confusion, and FHWA has removed the definition of net-
zero from 23 CFR 490.101 and the requirement in 23 CFR 490.105(e)(10)
that targets for the GHG measure ``demonstrate reductions toward net-
zero targets.'' In the final rule, FHWA is not requiring State DOTs and
MPOs to set any specific declining targets or achieve national GHG
goals. Declining targets are not required to align with the
Administration's goal for the U.S. to reduce CO2 emissions
50-52 percent below 2005 levels by 2030 and achieve net-zero emissions
economywide by 2050, in accordance with national policy established
under E.O.s 13990 and 14008. Rather, FHWA believes these national goals
can provide a useful roadmap for State DOTs and MPOs as they consider
how their targets fit into a longer timeframe of emission reductions.
Sec. 490.105 Establishment of Performance Targets
Comments on Establishing Declining Targets
Comment: A large number of commenters addressed the requirement to
establish declining targets. The majority of these commenters were
opposed to this requirement. Most of these commenters asserted that a
declining target is inconsistent with 23 U.S.C. 150, which provides
States with discretion in setting performance targets. Commenters
asserted that States should set data-driven targets based on their own
circumstances and analysis, which is not possible when declining
targets are required. Commenters also asserted that a requirement for
declining targets would reflect FHWA's influencing the selection of
projects, with States facing pressure to select projects to support
declining targets without commensurate funding through BIL to implement
this type of change.
One commenter noted this would be the only measure to which MPOs
would be expected to aid States in documenting declining targets, and
requested that FHWA provide MPOs a 5-year grace period before requiring
the declining targets to be established.
In contrast, several commenters supported the requirement to
establish declining targets. These commenters asserted that such a
requirement would require States to set targets that will result in
improvement, as opposed to other performance measures, and support
urgent progress on reducing GHG emissions from transportation. These
commenters also asserted that the declining target requirement would
not impinge on States' authority to set their own targets.
A few commenters recommended that FHWA require State DOTs and MPOs
to provide their underlying assumptions and rationale for vehicle
emissions rates and VMT, as well as to clarify in the final rule that
targets should be based not only on projections for improvement in
vehicle efficiency, but also on projections for reductions in emissions
because of VMT-reducing investments, system efficiency enhancements,
and/or other strategies.
Response: After considering these comments, FHWA has retained the
requirement for State DOTs and MPOs to set declining targets as
proposed in the NPRM and as further discussed in this final rule. State
DOTs and MPOs that have NHS mileage within their State geographic
boundaries and metropolitan planning area boundaries, respectively, are
required under the rule to establish declining targets for reducing
CO2 emissions generated by on-road mobile sources. Given the
urgency of responding to the climate crisis, FHWA believes it is
inappropriate for State DOTs and MPOs to delay establishing targets.
The FHWA also believes States and MPOs have the tools necessary to meet
these timelines. State DOTs will establish targets no later than
February 1, 2024, and MPOs are required to establish targets no later
than 180 days after the State DOT establishes their targets. See 23 CFR
490.105(e)(1)(ii) and 490.105(f)(1).
The requirement for State DOTs and MPOs to establish declining
targets for tailpipe CO2 emissions on the NHS is vital given
the urgency of the climate crisis. Declining targets will help State
DOTs and MPOs plan toward reductions in GHG emissions and make Federal
infrastructure investment decisions that reduce climate pollution, a
principle set forth in E.O. 14008 (86 FR 7626). As discussed in the
NPRM, FHWA is not prescribing what declining targets would look like in
each State or MPO. State DOTs and MPOs have the flexibility to set
targets that work for their respective policies and priorities, so long
as the targets are declining. Under the rule, State DOTs and MPOs have
discretion in setting an appropriate declining target as informed by
complete, consistent, and timely State and local information on GHG
emissions from on-road mobile source emissions. The rule provides State
DOTs and MPOs with the tools to consider GHG emissions in making
transportation decisions and imposes no penalties on States and MPOs
that do not meet their targets; therefore, FHWA rejects the
characterization that State DOTs and MPOs are being pressured or
otherwise required to select any specific project based on this
measure.
The FHWA disagrees with the assertion that States and MPOs cannot
set data-driven targets based on their own circumstances and analyses
when the targets must be declining. States and MPOs will use the
appropriate data to set declining targets, as informed by their
policies and priorities. State DOTs and MPOs will use the data to
evaluate current performance and predict future performance when
establishing declining targets.
In addition, FHWA has removed the proposed requirement for
declining targets to demonstrate reductions toward net-zero targets.
For additional
[[Page 85381]]
information on FHWA's decision not to include net-zero in the final
rule, see the discussion under Comments on the Measure's Relationship
to National GHG goals, in the Section-by-Section Discussion of Sec.
490.101.
Comments on Alternative Target Setting Frequencies
Comment: A large number of commenters provided feedback related to
a question raised in the NPRM about introducing a new requirement for
State DOTs and MPOs to establish 8- and 20-year targets at the
beginning of each 4-year performance period. Many commenters favored
adding long-term targets. Commenters in favor of the requirement noted
that long-term targets can function as policy goals to allow for more
forward-looking evaluation of emissions trajectories. The other
commenters supporting this change asserted that long-term targets
better align with FHWA planning requirements (Long Range Transportation
Plan (LRTP), Metropolitan Transportation Plan (MTP), State
Transportation Improvement Program (STIP), Transportation Improvement
Program (TIP)), and would create greater visibility and accountability.
In contrast, a small number of commenters opposed adding long-term
targets. A few of these commenters noted that they support establishing
long-term targets as a best practice, but not as a requirement. Others
responded that long-term targets would be too burdensome to develop and
would lead to speculative results that will not add value to the target
setting process.
Response: The FHWA considered the comments citing the benefits of
establishing long-term targets but declines to do so at this time to
remain consistent with the existing TPM framework used for the other
NHPP measures. Providing consistency with other measures minimizes the
complexity of the TPM requirements. It also allows the measures with
biennial targets to be considered in relation to each other, which can
help illustrate how these measure areas are part of a single
transportation system. State DOTs and MPOs can voluntarily establish
longer-term targets in the manner that best aligns with their
individual policies and plans.
Comments on MPO Joint Targets
Comment: Several commenters expressed concern about the proposed
requirement for joint UZA targets. Almost all of these commenters
otherwise supported the proposed measure but recommended removing the
joint UZA target from the final rule. They identified a variety of
concerns, particularly that a joint UZA target would be duplicative of
the requirement for metropolitan planning area targets, thereby adding
administrative burden for both MPOs and State DOTs. They also asserted
that a joint UZA target would be overly complex, especially for
planning agencies that are part of multiple UZAs or for those that
share borders with a planning agency that serves a different
population, such as rural and urban. A few commenters suggested
alternatives to the joint UZA target: removing the target based on MPO
boundaries and only requiring targets based on UZA; only requiring
targets on either MPO boundaries or those based on UZAs; or limiting
the targets based on MPO boundaries and on UZA boundaries only to MPOs
and UZAs of a certain size, regardless of if there is a joint target or
only metropolitan planning area targets.
Response: The FHWA has considered these comments and decided to
retain the requirement for joint UZA targets. The FHWA disagrees with
comments suggesting a joint UZA target is duplicative of the
requirement for metropolitan planning area targets. The FHWA believes
the requirement to establish a joint UZA target would encourage
collaboration across MPO boundaries through coordinated systems and
region-based approaches to reducing GHG emissions. The FHWA believes
this collaboration is useful regardless of the MPO or UZA size.
Therefore, FHWA has retained the requirement for MPOs to collectively
establish a single joint 4-year target for each UZA that contains NHS
mileage and that is overlapped by the boundaries of two or more
metropolitan planning areas. As provided in 23 CFR 490.105(f)(10),
joint targets are also required to be declining targets for reducing
CO2 emissions from on-road mobile sources, and these targets
are established in addition to each MPO's individual target for their
metropolitan planning area. The targets established are required to be
a quantifiable target, which means a value must be used.
To support implementation of this final rule, FHWA is publishing in
the docket applicability tables with the MPOs required to establish
joint targets in accordance with 23 CFR 490.105(d)(4) and
490.105(f)(10). As with all other MPO targets, and consistent with 23
CFR 490.105(f)(1), joint targets are to be established no later than
180 days after the MPOs' respective State DOT(s) establish their
targets. For additional information on the timeline for establishing
joint targets, see the discussion under Comments on MPO Target Setting
Frequency in this section.
Comments on MPO Target Setting Frequency
Comment: A small number of commenters provided feedback on the
frequency of MPO targets. A couple of these commenters recommended that
the final rule only include 4-year targets for MPOs. Another requested
that the final rule add 2-year targets for MPOs to increase
coordination with States on the same schedule. In addition, one
commented that the final rule should leave out both the 2- and 4-year
targets, and instead adopt 8- and 20-year targets.
Response: Upon consideration of the comments, FHWA has retained the
requirement for MPOs to establish 4-year targets as previously
established in 23 CFR 490.105(f). The FHWA believes the benefits
associated with requiring MPOs to establish additional 2-year targets
for the GHG measure would not exceed the additional burden to MPOs. The
FHWA believes that introducing 8- and 20-year targets that would only
apply to the MPOs and would only apply to a single measure would add
confusion and complexity that would not be offset by meaningful
benefits.
The final rule makes no changes to the MPO target establishment
schedule, and MPOs will continue to report their baseline performance
and progress toward their targets in their system performance report.
See 23 CFR 490.107(c)(2). An MPO will establish targets for this
measure, including any required joint targets, no later than 180 days
after their respective State DOT(s) establishes their 4-year target for
the measure. See 23 CFR 490.105(f)(1). The MPOs will report their
established GHG targets, including any joint targets, to the State DOT
in a manner that is documented and mutually agreed upon by both
parties. See 23 CFR 490.107(c)(1).
Comments on Technical Assistance
Comment: A large number of commenters requested technical
assistance from FHWA to assist in the implementation of the proposed
performance measure. Examples cited by these commenters included tools
and best practices for modeling the emissions impacts of various types
of projects; strategies/pathways/roadmaps to reduce tailpipe
CO2 emissions (especially those with other social and
economic impacts, including for disadvantaged communities); factors to
consider in setting targets; and recommended targets to meet national
GHG reduction goals.
[[Page 85382]]
Response: The FHWA believes the existing technical assistance,
technical tools, and guidance available through FHWA's TPM and Energy
and Emissions Websites, as well as resources provided by the National
Highway Institute (NHI), AASHTO, AAMPO, and other publicly available
sources provide the information necessary for State DOTs and MPOs to
establish targets for the GHG measure. In addition to these existing
resources, FHWA recently launched an Every Day Counts (EDC) innovation
to help transportation agencies quantify GHG emissions and set targets
for reducing GHG emissions through transportation planning. As this
measure is implemented, FHWA will continue to consider how best to
support State DOTs and MPOs in implementing all the TPM requirements in
23 CFR part 490 and will provide technical assistance on an ongoing
basis.
Comments on Benchmarks
Comment: A few commenters suggested that FHWA provide intermediate
benchmarks for States to use to ensure they are on track to meet the
2030 national GHG reduction goal.
Response: As noted earlier, while FHWA encourages State DOTs and
MPOs to consider the Administration's GHG emissions reduction and net-
zero goals when establishing targets, FHWA has removed the proposed
requirement for State DOTs to align their declining targets with the
Administration's GHG reduction goals. State DOTs and MPOs have the
flexibility to set targets that work for their respective policies and
priorities, so long as the targets are declining. For example, a State
DOT might set targets that would result in steady, incremental progress
toward net-zero emissions, or that achieve aggressive early GHG
emissions reductions, or be more gradual at first and become more
aggressive later. Therefore, FHWA declines to provide intermediate
benchmarks at this time. However, State DOTs may voluntarily establish
longer-term targets to serve as intermediate benchmarks to help them
align their short-term emission reduction targets with their long-term
GHG reduction goals.
Sec. 490.107 Reporting on Performance Targets
Comments on Reporting Start Date
Comment: Many commenters provided feedback on the reporting start
date of October 1, 2022. All these commenters oppose this date, which
they indicated would precede the NPRM public comment period, which
closed on October 13, 2022. One commenter recommended that the rule be
revised to either (1) not require States to set two-year targets for
the 2022-2025 time period, and have States set their four-year targets
for the 2022-2025 time period as part of the October 1, 2024 mid-
performance period progress report; or (2) delay implementation
altogether until the 2026-2029 performance period. Other commenters
recommended a reporting start date in 2023, with the expectation that
they would have six months to one year from the final rule for target
setting/coordination before their first reporting. Other commenters
recommended October 1, 2024 or October 1, 2028, indicating that these
dates would correspond with other performance measures. A few
commenters suggested a phased approach, such as reporting reference
year data and their four-year target in the October 1, 2024 Mid
Performance Period Progress Report, and then continuing with two- and
four-year targets in the next performance period.
Response: Upon consideration of comments, FHWA determined that
State DOTs and MPOs will establish or adjust targets every two years
beginning in 2024. Targets will first be established for this measure
by State DOTs and reported to FHWA in a State Initial GHG Report, no
later than February 1, 2024. See 490.105(e)(1)(ii) and 490.107(d). The
information provided by State DOTs in the 2024 State Initial GHG Report
will be considered the 2024 Mid Performance Period Progress Report. See
490.107(b)(2)(i). State DOT reporting will follow an October 1st cycle
beginning in 2026 to align with other measure reporting requirements.
Recognizing the urgency of addressing the climate crisis, FHWA is
establishing an initial date that is as early as practicable and will
reflect the best available data. The FHWA is also establishing a
February 1, 2024 reporting date for the first GHG targets to increase
the opportunities for the targets to be used to help guide overall
Federal investments available through the many programs available in
BIL that can reduce CO2 emissions. The February 1, 2024
reporting date is supportive of a 2022 GHG measure reference year since
the 2022 VMT data are expected to be finalized by November 30, 2023.
The FHWA made changes throughout the regulation in response to the
February 1, 2024 target establishment and reporting date, and they are
summarized here. Consistent with all other NHPP measures, the GHG
measure will have a 4-year performance period that will begin January
1, 2022. See 23 CFR 490.105(e)(4)(i) and 490.105(e)(4)(i)(C). The mid-
point of the performance period is 2024, and the end of the performance
period is 2026. The FHWA acknowledges that this date is in advance of
this final rule's effective date. However, the start of the performance
period merely serves as the benchmark that begins the TPM schedule.
This measure does not generate any requirements for State DOTs or MPOs
in advance of the effective date. The first GHG targets will be due on
February 1, 2024, after the effective date of this rulemaking. The FHWA
believes it is appropriate to begin the performance period on January
1, 2022 to align with the TPM program and to facilitate a mid-point of
the performance period in 2024, and to align with TPM's existing 4-year
performance period.
Since initial targets will be established so close to the mid-
point, FHWA determined that 2-year targets would not be required. See
23 CFR 490.105(10)(i)(A) and 490.105(e)(4)(iii). Section
490.105(e)(10)(i)(B) requires that 4-year targets for this measure be
established, and section 490.105(e)(1)(ii) requires they be established
no later than February 1, 2024. Section 490.107(d) was added to create
the State Initial GHG Report to receive the State DOT's initial 4-year
GHG target.
The State Initial GHG Report requirements are similar to the
Baseline Performance Period Report. In the State Initial GHG Report,
State DOTs will provide the 4-year target, the basis for the target,
the baseline data, which is the reference year for this performance
period only, the relationship with other performance expectations, the
data points used to calculate the GHG metric, described in 23 CFR
490.511(c), and the value calculated. The data used to calculate the
metric for the reference year for the Initial GHG Report is specified
in section 490.107(d)(2). Information on the GHG measure will be
submitted as part of the biennial reports starting with the 2026 Full
Performance Period Progress Report. See 23 CFR 490.107(b)(1), (b)(2),
and (b)(3).
For additional information on how the initial target establishment
requirements associated with February 1, 2024 will impact the
significant progress determination done after the 2024 Mid Performance
Period Progress Report, see the discussion under Comments on
Significant Progress Timing, in the Section-by-Section Discussion of
section 490.109.
[[Page 85383]]
Comments on MPO Reporting Frequency and Process
Comment: Many commenters responded to the MPO reporting
requirements and many proposed revisions to the requirements. Many of
these commenters noted that the final rule should require MPOs to
report every two years on progress towards the performance measure,
asserting that MPOs have a significant impact on transportation
investment decisions in metropolitan planning areas, and therefore,
should be as transparent as States in this regard. Similarly, another
commenter suggested that the final rule could encourage but not require
MPO reporting every two years given the additional burden of biennial
reporting.
A couple of commenters requested that the final rule not require
additional reporting by MPOs outside of the system performance report
so as not to increase the reporting and tracking burden on MPOs and
State DOTs.
Response: The FHWA considered the comments and determined the
existing reporting requirements for MPOs in 23 CFR 490.107(c), which
FHWA has successfully implemented for other performance measures, are
appropriate for reporting on the GHG measure. The MPOs are required to
report on performance within their metropolitan transportation plan
(MTP), which are developed every 4 or 5 years. See 23 CFR 450.324(d).
Biennial reporting by MPOs would necessitate an additional report
outside of the MTP. At this time, FHWA does not believe that adding a
new process for reporting on performance specifically for the GHG
measure would provide benefits that would exceed the increased burden
from additional reporting requirements. Therefore, FHWA has not made
any changes in the final rule based on the comments. The FHWA has
retained the requirement for MPOs to report progress toward their GHG
target in their system performance report in the metropolitan plan.
For related information on the MPO target establishment timeline,
see the discussion under Comments on MPO Target Setting Frequency in
the Section-By-Section Discussion for section 490.105.
For additional information related to MPO reporting, see the
discussion under Comments on MPO Report Content in this section.
Comments on MPO Report Content
Comment: One commenter noted that there does not appear to be a
requirement for the MPO to report the value of the measure (percent
reduction in tailpipe CO2 emissions on the NHS) for their
MPA or any required joint UZA targets (for those UZAs that overlap
multiple MPOs). In addition, a commenter asked for clarification that
reporting of the MPO metric calculation method is not required when an
MPO supports the State targets. Another commenter noted that if an MPO
chooses to support the State targets, reporting the MPO region total
appears unnecessary. Commenters noted that for all the other
performance measures (e.g., safety measures bridge and pavement
condition measures, and system performance and reliability measures),
there is no requirement for MPOs to calculate and report metric or
measure values to the State DOT(s).
Response: The FHWA has not made any changes in the final rule based
on these comments. The FHWA believes that the requirement for MPOs to
report the metrics used to calculate the measure and the metric
calculation method is justified because MPOs can use a range of
different approaches to calculate the metric, even if they choose to
adopt State targets. For this measure, MPOs are required to report all
targets they are required to establish, including any joint targets, to
the State DOT in a manner that is documented and mutually agreed upon
by both parties. See 23 CFR 490.107(c)(1). In the system performance
report, MPOs will report baseline performance for this measure and
progress toward the achievement of their targets. They will also report
the calculation of annual tailpipe CO2 emissions for the NHS
for the period between the reference year and the first system
performance report that includes the GHG measure information.
Subsequent reports will cover the period between the current report and
the last report. In addition, the MPO will report a description of
their metric calculation method(s).
The FHWA has removed the proposed requirement for MPOs to report
tailpipe CO2 emissions on all roads. The reason for removing
this requirement is described in response to the comments on MPO metric
reporting, in the discussion for section 490.511.
As a new requirement of the rule, in the system performance report,
FHWA is requiring MPOs using metric calculation methods not specified
in section 490.511(d) to include information demonstrating the
method(s) has valid and useful results for measuring transportation
related CO2. The reason for this requirement is provided in
the discussion under Comments on Mutual Agreement of Metric Calculation
Method by State DOTs and MPOs, in the Section-by-Section Discussion for
section 490.511.
Consistent with 23 CFR 450.226 and 23 CFR 450.340, the MPO's MTP
and TIP must meet the Performance-Based Planning and Programming (PBPP)
requirements of the planning rule for this performance measure by no
later than 2 years after the effective date of this rule.
Comments on Biennial Reporting Cycle
Comment: A few commenters provided general feedback on the State
DOT biennial reporting cycle and recommended that the final rule not
require two-year reporting for State DOTs.
Response: The FHWA has not made any changes in the final rule based
on the comments. Section 150(e) of Title 23, U.S.C., requires State
DOTs to report on performance to FHWA on a biennial basis. The FHWA
considered the comments and determined the existing biennial reporting
cycle established in 23 CFR 490.107(b), which FHWA has successfully
implemented for other performance measures, will support State DOTs as
they implement the new GHG measure within the context of the overall
TPM program. This two-year reporting for State DOTs is consistent with
other performance measures, which minimizes the incremental burden
since State DOTs do not need to develop an additional reporting process
and cycle for this one measure. Two-year reporting is also useful in
helping State DOTs progress toward a longer-term goal and can reflect
short-term actions such as operational improvements. Such short-term
actions are typically outside the control of MPOs, which consequently
have 4-year reporting requirements.
Comments on Alternative Progress Reporting Requirements
Comment: A couple of commenters suggested additions to the
reporting requirements. One requested a provision for qualitative
reporting to describe progress on the measure, to be able to report
trends and overall actions and strategies that contribute to lower
sales of fossil fuel used for on-road vehicles. Another requested
requiring State DOTs and MPOs to identify planned actions to reduce
emissions and actions that have been implemented to reduce emissions.
Response: The FHWA has not made any changes in the final rule based
on the comments. The reporting requirements in 23 CFR 490.107 represent
the minimum requirements for State DOTs and MPOs under the TPM
regulations. The requirements in the final rule do not prevent State
DOTs
[[Page 85384]]
and MPOs from providing more detailed qualitative reporting on progress
and planned actions at the State and local level.
Comments on Publicizing GHG Reporting Information
Comment: A large number of commenters provided recommendations
intended to increase the transparency and accessibility of reporting on
performance. Some commenters recommended that FHWA publish a regular
report on State DOT and MPO progress, with a couple of these commenters
suggesting that such a report should be issued within three months of
FHWA receiving the data and be made available in an interactive format
that allows viewers to see both detailed and summary data. Commenters
noted that having the data publicly available would also help
stakeholders to hold State DOTs and MPOs accountable for progress
toward their GHG targets.
Response: The FHWA has not made any changes in the final rule based
on the comments. As part of FHWA's commitment to transparency, FHWA
regularly publishes the State DOT's biennial reports and FHWA's
significant progress determinations on its website as part of the
publicly available TPM Dashboards, and the GHG measure will be included
in the TPM Dashboards. The State performance dashboards and reports are
available at https://www.fhwa.dot.gov/tpm/reporting/state/.
State DOTs and MPOs are required to report on progress as outlined
in this final rule and described in 23 CFR 490.107. External reporting
by the U.S. DOT on funds spent in specific areas is outside the scope
of this rulemaking.
Sec. 490.109 Assessing Significant Progress Toward Achieving the
Performance Targets for the National Highway Performance Program and
the National Highway Freight Program
Comments on Consequences of Not Achieving Significant Progress
Comment: A small number of commenters addressed the requirement
that State DOTs document the actions they will take should they fail to
demonstrate significant progress toward their targets. Some of the
commenters asserted such a requirement would not influence future
target achievement. Some of these commenters recommended the final rule
include requirements for State DOTs to provide more detailed
information on projects or programs to reduce emissions. Such
information would identify future actions to reduce emissions, and
include estimated emissions reductions, timelines for implementation
and funding sources. One commenter recommended the requirement be
revised to require a State DOT to document actions that have been taken
in support of targets and identify barriers preventing target
achievement. One commenter asked for clarification on whether the
documented actions would be binding for MPOs.
Response: The FHWA has not made any changes in the final rule based
on the comments. The FHWA does not intend to use the significant
progress determination process to be punitive or to encourage State
DOTs to establish easy-to-achieve targets. Establishing targets and
assessing progress is intended to encourage State DOTs and MPOs to
establish data-supported targets that consider anticipated resources
and potential uncertainties and to provide data-supported explanations
of performance changes. If a State DOT does not make significant
progress, FHWA expects the State DOT to provide data-supported
explanations for not achieving significant progress, and their plan to
achieve said progress in the future.
The FHWA determined that creating additional requirements related
to the consequences of not achieving significant progress toward
achieving GHG performance targets would create potential burdens that
outweigh the potential benefits of such efforts. The documentation
requirements in 23 CFR 490.109(f)(1)(v) represents the minimum
information State DOTs are federally required to provide. State DOTs
can provide additional information in their biennial reports if they
feel it supports their discussion of target achievement, or significant
progress.
Information provided by the State DOT in response to the
requirement in 23 CFR 490.109(f)(1)(v), does not, on its own, require
that an MPO within that State select a specific project.
Comments on Significant Progress Criteria
Comment: A small number of commenters recommended that significant
progress be defined more narrowly. Commenters suggested the significant
progress determination be changed to require performance better than
the level that would be achieved through reductions in vehicle emission
rates alone, define a minimum percentage of a target that must be
reached, use a trend based on multiple performance periods, or use some
combination of such factors.
Response: The FHWA considered these comments and declines to apply
a narrower definition of significant progress. The existing criteria at
23 CFR 490.109(e)(2) for determining significant progress are well
understood and have been applied successfully for the other NHPP and
NHFP measures identified in 23 CFR 490.105(c)(1)-(6). Maintaining
consistency with the existing significant progress determination
criteria will ensure consistency with the other measures and simplify
the process. Accordingly, FHWA will determine that a State DOT has made
significant progress toward the achievement of each 2-year or 4-year
applicable GHG target if (1) the actual performance level is better
than the baseline performance, or (2) the actual performance level is
equal to or better than the established target, as defined in 23 CFR
490.109(e)(2).
Comments on Significant Progress Timing
Comment: One commenter recommended that FHWA not require a
significant progress determination for the first performance period
since transportation emissions in initial years would reflect planning
and investment decisions made prior to the final rule.
Response: In response to this and other comments and in line with
4-year targets being reported February 1, 2024, FHWA will not assess
significant progress toward the achievement of 2-year targets for the
GHG measure following the 2024 Mid Performance Period Progress Report.
State DOT planning and investment decisions follow a cyclical process
and should be informed by State DOT progress toward achieving its GHG
targets. As a result, FHWA believes it to be beneficial to begin
significant progress determinations for the GHG measure as early as is
reasonable. The FHWA will first assess significant progress toward the
achievement of targets for the GHG measure after the 2026 Full
Performance Period Progress Report (due October 1, 2026).
In response to the initial target establishment requirements
related to February 1, 2024, when conducting the significant progress
determination after the 2026 Full Performance Period Progress Report,
the performance for the reference year shall be used as the baseline
performance, as described in 23 CFR 490.105(e)(10)(i)(C).
For additional information on the target establishment requirements
associated with February 1, 2024, see the discussion under Comments on
Reporting Start Date, in the Section-by-Section Discussion of section
490.107.
[[Page 85385]]
Sec. 490.503 Applicability
Comments on Roadway Applicability
Comment: A large number of commenters recommended that State DOTs
and MPOs be required to set targets and track GHG emissions from travel
on all public roads and not just the NHS. These comments asserted that
the NHS represents only about 5 percent of total U.S. roadways, and
just over 50 percent of vehicle miles traveled. They also asserted that
setting targets and tracking emissions from travel on all public roads
would provide a more comprehensive understanding of transportation
emissions and allow for more comprehensive solutions.
Response: The FHWA is finalizing as proposed that this measure will
assess performance on the NHS. The FHWA acknowledges that the NHS only
represents a limited set of U.S. roadways, and a measure for all public
roads would capture more emissions from the transportation sector.
However, as detailed in Section III of this preamble, FHWA is
promulgating this rulemaking under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V),
which requires that the Secretary establish measures for States to use
to assess the performance of the Interstate System and the non-
Interstate NHS. The statute does not provide authority to measure
performance on public roads other than the Interstate and non-
Interstate NHS. Thus, the GHG measure under 23 CFR 490.105(c)(5), and
associated requirements, must be based on performance on the Interstate
System and non-Interstate NHS. However, State DOTs and MPOs can choose
to implement other measures to support their programs, including
measures that apply to all roads, in a manner that best aligns with
their individual policies and plans.
Sec. 490.505 Definitions
Comments on Reference Year
Comment: Many commenters, including those both supporting and
opposed to the proposed measure, provided feedback on the use of
calendar year (CY) 2021 as the reference year, with all asserting that
it would not be appropriate because of the lingering effects of the
COVID-19 pandemic on travel in 2021. Commenters noted that using CY
2021 would set the baseline artificially low as VMT and fuels sales
continue to rebound and would make it difficult for States to meet
declining targets. Commenters provided one or more of the following
suggestions as an alternative to using CY 2021 as the reference year:
2022 or a year further in the future; 2019 as a pre-pandemic year; 2005
as a reference to the national GHG targets; or the 5-year average as
the baseline.
Response: The FHWA agrees with the commenters' observation that the
COVID-19 pandemic reduced travel demand, motor fuel consumption, and
CO2 emissions in 2021 as compared to pre-pandemic levels,
and that using 2021 as a reference year would establish a lower-than-
normal basis for evaluating future performance. In response to these
concerns, FHWA is establishing 2022 as the reference year for the GHG
measure. In 2022, travel activity is estimated to have nearly rebounded
to pre-pandemic levels, with FHWA's December 2022 Traffic Volume Trends
report showing cumulative mileage of 3.17 trillion miles in 2022,
compared with 3.27 trillion miles in 2019.\17\ 2022 is also the most
recent year for which finalized VMT estimates will be available to use
in calculating the State DOTs' GHG metric and measure.
---------------------------------------------------------------------------
\17\ See Office of Highway Policy Information, Federal Highway
Administration, Traffic Volume Trends December 2022, available at
https://www.fhwa.dot.gov/policyinformation/travel_monitoring/22dectvt/; Traffic Volume Trends December 2019, available at https://www.fhwa.dot.gov/policyinformation/travel_monitoring/19dectvt/.
---------------------------------------------------------------------------
Comments on Definition of GHG Emissions
Comment: Several commenters requested clarification on the
definition of GHG emissions provided in the NPRM. These commenters
asserted that definition proposed at 23 CFR 490.505 goes beyond
tailpipe CO2 emissions to include methane, nitrous oxides,
and hydrofluorocarbons. Commenters asserted that this broader
definition could open the door to further regulation without a
rulemaking.
Response: The definition of GHG included in the NPRM is a common,
scientific definition of GHG emissions, which include CO2 in
addition to other gases such as methane (CH4), nitrous oxide
(N2O), and hydrofluorocarbons (HFCs). According to EPA data,
CO2 accounts for approximately 97 percent of on-road GHG
emissions when weighting the 100-year global warming potential of
CO2 and other greenhouse gases.\18\ The FHWA concluded that
because approximately 97 percent of on-road GHG emissions are from
CO2, including non-CO2 gases in the measure would
not yield significant benefits. Any changes to the GHG measure,
including any expansion to the applicability of this measure beyond
tailpipe CO2 emissions, would follow notice and comment
rulemaking.
---------------------------------------------------------------------------
\18\ See EPA Inventory of U.S. Greenhouse Gas Emissions and
Sinks: 1990-2021, table 2-13, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021. EPA's estimates weight CO2 and other greenhouse
gases on their 100-year global warming potentials, as specified in
the Intergovernmental Panel on Climate Change Fifth Assessment
Report.
---------------------------------------------------------------------------
Sec. 490.509 Data Requirements
Comments on CO2 Emissions Factor
Comment: Several commenters provided feedback on the proposal for
FHWA to provide a standard CO2 emissions factor for each
fuel type. A few of the commenters said FHWA should establish
CO2 emissions factors, with one recommending that FHWA
provide optional supplemental fuel blend information and State-specific
carbon intensity values based on Low Carbon Fuel Standards reporting.
Several commenters requested that FHWA consider accommodating
alternative emissions factors for fuel blends when States and MPOs
provide credible alternatives. A few commenters requested additional
clarity on CO2 emissions factors, including what they will
look like, how they will change over time, how they will be accessed,
whether they will vary based on location, and for some specific
examples. One commenter stated there is a need to incorporate the
biogenic nature of CO2 from bioethanol into the emissions
factor calculation, with one commenter expressing general concerns
about the inputs to EPA's Motor Vehicle Emissions Simulator (MOVES)
Model.
Response: As proposed in the NPRM, FHWA will publish uniform
CO2 emissions factors for each fuel type to be used by all
States in calculating the State DOT's metric for the GHG measure. The
FHWA believes that the requirement for States to use a uniform factor,
for each fuel type will ensure consistency and comparability of States'
estimates of tailpipe CO2 emissions.
The FHWA recognizes that some States have implemented or are
considering the implementation of low carbon fuels programs to reduce
the overall carbon intensity of transportation fuels. However, since
these programs often target reductions in the GHG emissions from well-
to-pump processes, FHWA believes that including emission factors for
alternative fuel blends as part of a tailpipe-only measure would be
overly complex. The FHWA recognizes that CO2 emissions
estimates for the transportation sector as reported in the EPA's
Inventory of U.S. GHG Emissions and Sinks do not include CO2
emissions associated with biofuels, such as the ethanol component of
E10 and other gasoline blends, since it is assumed that
[[Page 85386]]
the combustion of the biogenic component of these fuels is recycled as
biofuel crops and forests regenerate. The FHWA will consider EPA's
accounting practice for addressing biofuel CO2 emissions as
it develops the standard CO2 emissions factors to support
this final rule. The FHWA will publish these factors on its website by
August 15th of each biennial reporting year.
Comments on Data Availability Date
Comment: A small number of commenters requested that FHWA provide
data to calculate the system performance earlier than the annual date
of August 15, with a few specifying that this should be no later than
May 1 of each year or, if no joint UZA target is required, then no
later than July 1.
One commenter indicated that the prior year's data in Table VM-3--
Annual Vehicle Miles and Table MF-21--Motor-Fuel Use has been published
in mid-late October in the past, which would conflict with an October 1
deadline for report submissions.
Response: The FHWA appreciates commenters' interest in having data
available as early as possible to support State biennial reporting on
October 1 of each even year. While estimates of annual motor fuel
volumes distributed are not expected to be finalized by FHWA until
August 15th, States and MPOs can develop preliminary estimates and
forecasts of GHG emissions using the values in FHWA's Monthly Motor
Fuel Reported by States publication, available on the website of FHWA's
Office of Highway Policy Information, and the State-reported fuel sale
information.
In response to the comments requesting data earlier than proposed
and FHWA's reexamination of when the VMT data will be available, FHWA
revised 23 CFR 490.509(h) as well as 23 CFR 490.109(d)(1)(vi) and
(d)(1)(vii) to ensure that State DOTs are able to use their most
accurate VMT data to estimate the NHS share of total on-road tailpipe
CO2 emissions when reporting actual performance and
discussing progress. These changes were made in response to a comment
noting that HPMS VMT data may not be finalized by August 15, as
proposed in the NPRM.
The final rule allows State DOTs to use their best available VMT
data that represents the prior calendar year when reporting performance
and their GHG measure and metric information in the biennial reports.
See 23 CFR 490.509(h). Related changes were made to the State DOT
metric reporting requirements the biennial reports. See
490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and (b)(3)(ii)(I). Because the VMT
data used by the State DOT when preparing the biennial report may not
be known to FHWA, State DOTs are required to provide the values they
use to calculate the reported metric, and a description of the data
source(s) used for the VMT information they report. Section
490.511(f)(2) was revised to be consistent with the metric reporting
requirements in 23 CFR 490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and
(b)(3)(ii)(I).
The change to 23 CFR 490.509(h) necessitated changes to the data
FHWA will use in the significant progress determination. In 23 CFR
490.109(d)(1)(vi) and (d)(1)(vii) FHWA has specified that for the
significant progress determination, baseline performance will be based
on data from HPMS as of November 30th of the baseline report year, and
the reference year will be based on HPMS data as of November 30, 2023.
The FHWA also added section 490.109(e)(4)(vii) to clarify that the data
used must be accepted by FHWA by the dates specified in section
490.109(d)(1).
Comments on Accessibility of Fuel Sales Data
Comment: A small number of commenters expressed concern at MPOs'
inability to access the Fuels & FASH dataset and requested more
guidance on how the data could be accessed. One commenter suggested
using publicly available State data instead. Another requested
clarification on how a State will calculate the aggregate fuel
consumption by fuel type.
Response: States are responsible for submitting preliminary
estimated totals of monthly fuel volumes distributed for gasoline and
``special fuel'' (which primarily consists of diesel) which are due to
FHWA 90 days following the end of a given month. These estimates are
made publicly available for each State as part of FHWA's Monthly Motor
Fuel Report, accessible on the Office of Highway Policy Information
website. Final estimated fuel for a given year are adjusted to account
for: (1) updated monthly fuel volumes distributed for gasoline and
``special fuel'' provided by the States, and (2) non-highway use of
fuels. These estimates will be available by August 15 of each reporting
year (i.e., the following year).
Comments on Non-Highway Fuel Use
Comment: A couple of commenters asserted a portion of fuel sales
are consumed off the roadway network, which is a circumstance that is
likely more prevalent in rural areas. These commenters asserted that
off-highway use of fuels would not be accounted for in fuel use data
provided by FHWA.
Response: The FHWA uses a modeling process to estimate the portion
of gasoline that is distributed and used for non-highway purposes.
These data are then used to adjust the gasoline volume data submitted
by the States to identify the volumes that are used specifically for
on-highway purposes. In addition, FHWA instructs all States not to
report non-highway use of special fuels, including red dyed diesel and
kerosene that is untaxed and intended for non-highway applications.
Comments on GHG Emissions Analysis Techniques
Comment: A commenter asserted that the effectiveness of the
proposed rule would be limited by current traffic modeling practices.
The commenter asserted that the final rule would benefit from improved
data collection and analysis techniques, a more standardized approach
to documenting projects within the STIP/TIP and ensuring a requirement
that emissions from induced demand be included in modeling.
Response: The FHWA believes the data and methods specified in the
NPRM are appropriate to evaluate performance related to the GHG
measure. State CO2 estimates are calculated by multiplying
gallons of fuel taxed by each State by the CO2 emissions for
each fuel type. The FHWA's Fuels & FASH database-will serve as the
source of fuel use data since it is a national, established, and
validated source of fuel use information as reported by States. The
FHWA believes that Fuels & FASH provides advantages for estimating fuel
consumption and CO2 emissions compared to model-based
approaches, which by necessity are built on simplified mathematical
representations of transportation networks, travel choices, vehicle
fuel efficiency, and other factors. Fuels sales data implicitly
accounts for travel demand and fuel consumption resulting from
transportation policies and investments, including behavioral changes
following highway construction (sometimes referred to as ``induced
demand''). The FHWA recognizes that fuel sales may not precisely align
with the amount of fuel combustion and CO2 emissions within
the boundaries of a State, particularly since drivers may cross State
lines to purchase fuel. However, FHWA believes the data and methods for
the State DOT metric calculation achieve an appropriate balance between
simplicity and accuracy and will
[[Page 85387]]
provide a useful way to monitor trends over time.
The FHWA recognizes that MPOs lack a data source comparable to
Fuels & FASH and therefore must estimate CO2 emissions using
an approach different from the States. The FHWA believes that it is
appropriate to leave the data and metric calculation methods to the
discretion of MPOs, and that it would be unreasonable to specify data
collection standards or modeling practices, particularly since some
MPOs do not employ technical staff or support travel and emissions
models. However, FHWA has updated the final rule to require MPOs that
choose a metric calculation approach not enumerated in section
490.511(d) to demonstrate the method has valid and useful results.
Finally, State DOTs and MPOs may employ travel models, emissions
models, and other analytics to support transportation planning,
programming, and the development of GHG reduction targets. In so doing,
they can consider the degree to which their models are sensitive to the
travel and emissions impacts of GHG reduction strategies and other
decisions, such as future highway capacity. However, FHWA believes it
is not appropriate to specify the models or other practices that States
and MPOs use for these purposes as part of the final rule.
For additional information related to the CO2 factor,
see the discussion under Comments on CO2 Emissions Factor,
in this section.
Sec. 490.511 Calculation of National Highway System Performance
Metrics
Comments on State DOT GHG Metric Calculation Method
Comment: Several commenters provided input on the calculation of
the proposed GHG performance measure. A few commenters expressed
support for using existing national data sets for fuel sales and VMT
data, while a few comments offered proposed revisions. Alternatives
suggested included allowing States to propose alternative or additional
data sets or methodologies and requiring States to use one of the
methods offered for MPOs in the proposed rule (i.e., MOVES or FHWA's
Energy and Emissions Reduction Policy Analysis Tool (EERPAT)).
Response: The FHWA has retained the State DOT metric calculation
method proposed in the NPRM. This approach is based on fuel use data
that is already collected by States and reported to FHWA, ensuring
comparability between State estimates. As noted in response to the
previous comment, FHWA believes this approach provides a more accurate
estimate of total fuel use and CO2 emissions than model-
based approaches. The FHWA recognizes that this approach includes some
simplifying assumptions, particularly by assuming a similar rate of GHG
emissions on NHS and non-NHS facilities per VMT. While it is expected
that emissions rates would differ somewhat between NHS- and non-NHS
facilities, FHWA believes that this simplifying assumption is justified
since the difference between emissions rates on NHS- and non-NHS
facilities would be largely constant from year-to-year and similar
across States, providing a consistent way to monitor performance.
For additional information on how the MPO's metric calculation
method is selected and documented, see the discussion under Comments on
Mutual Agreement on MPO Metric Calculation Method by State DOTs and
MPOs, which is part of this section.
Comments on MPO GHG Metric Calculation Method
Comment: Several commenters addressed MPO metric calculation
methodology and reporting. Approximately half of these commenters
supported preserving MPOs' flexibility in calculating the GHG metric.
In contrast, a couple of commenters supported requiring MPOs to use the
MOVES model to calculate GHG emissions, while one asserted that FHWA
should provide the data needed for MPOs to calculate a metric for the
GHG measure. In addition, one commenter questioned the requirement for
MPOs to calculate and report tailpipe CO2 emissions on all
roads, noting the MPO may choose a methodology that allows for
calculating the GHG metric for NHS roads directly.
Response: Upon consideration of comments, FHWA is preserving MPOs'
flexibility to use a range of different approaches in calculating the
metric for the GHG measure. The FHWA recognizes that technical
capabilities vary across MPOs and that some MPOs may not support a
travel demand model or be required to use EPA's MOVES model. The FHWA
also appreciates the observation that some MPOs may choose to calculate
tailpipe CO2 emissions on the NHS facilities directly. This
is inherently different from State DOTs, which are required to
calculate CO2 emissions for all roads before estimating the
proportion of emissions associated with the NHS. Accordingly, in the
final rule, FHWA has removed the requirement for MPOs to report
tailpipe CO2 emissions for all roads.
Comments on Mutual Agreement on MPO Metric Calculation Method by State
DOTs and MPOs
Comment: A small number of commenters addressed the requirement for
the MPO metric calculation method to be mutually agreed upon by both
the State DOT and the MPO. A few commenters opposed the requirement for
the MPO to obtain concurrence on the metric calculation method.
Similarly, one commenter recommended that an MPO be allowed to use,
without the need to obtain additional approvals, any regional data,
models, and methodologies that is already used to measure GHG for
purposes of air quality conformity modeling or other GHG performance
measures. One commenter recommended the metric calculation method be
covered in the ``written provisions'' section of the system performance
report.
Response: The FHWA agrees with commenters that the requirement for
MPOs and States to agree on the MPO's metric calculation method creates
burden for both groups. In response to the comments, FHWA is not
requiring the MPO's metric calculation method to be mutually agreed
upon by the State DOT and MPO, but MPOs are encouraged to coordinate
with the State DOT on the data used to the maximum extent practicable.
The FHWA has instead added a requirement to section
490.107(c)(2)(ii) that if the metric calculation method used by the MPO
is not specified in section 490.511(d), the MPO must demonstrate the
method's validity and usefulness in measuring transportation-related
CO2 emissions in the system performance report. The FHWA
believes that this change will be sufficient to ensure accountability
in the methods MPOs use to calculate the GHG metric, absent the
requirement for mutual agreement on the method with State DOTs.
Consistent with FHWA's collaboration and coordination requirements in
23 CFR part 450, FHWA encourages MPOs and the State DOTs to work
together in identifying methods, tools, and data the MPO's can use to
calculate the MPO's metric for the GHG measure.
For additional information related to reporting of the MPO's
metric, see the discussion under Comments on MPO Report Content, in the
Section-by-Section Discussion for section 490.107.
[[Page 85388]]
Comments on the RIA
Comments on the Estimated Cost of the Regulation
Comment: Many commenters discussed cost estimates from the RIA.
Many commenters asserted that the RIA underestimated direct
implementation costs of the measure and provided examples of costs that
they believe were underestimated. Examples cited include the time and
level of expertise needed to establish targets, conduct biennial
reporting, conduct stakeholder engagement, develop and maintain models,
and achieve coordination between DOTs, MPOs, and State agencies.
Several commenters also asserted that achieving national GHG reduction
goals would require significant changes to transportation investments
that would carry significant monetary costs and would require
significant time to implement. A few commenters also asserted that
achieving GHG reductions through strategies to reduce on-road travel
activity would create further social and economic costs including
increased congestion and travel times. Another commenter asserted that
reducing on-road GHG emissions would reduce the consumption of
traditionally taxed fuels and require the establishment of a different
highway finance revenue model that is not based on the consumption of
fossil fuels.
In contrast, several commenters asserted that the burdens of the
proposed performance measure would be negligible. These commenters
noted that States and MPOs have already established processes and
partnerships under the TPM framework and that staff efforts to quantify
and report GHG emissions on the NHS would not be expected to create
significant cost burden and are in line with existing performance
measures.
Other commenters noted that work performed in support of the GHG
measure would not support other aspects State DOTs' and MPOs' missions
in ways that would mitigate net costs of the proposed rule. One State
DOT also asked for clarification on how the total costs of compliance
in time and cost is calculated.
Response: The FHWA has reexamined the RIA considering public
comments and any updated information, and FHWA has determined that the
RIA cost estimates should be primarily unchanged from the RIA in
support of the NPRM, with a small reduction in estimated burden based
on the elimination of the NPRM requirement for States and MPOs to
estimate CO2 emissions for all roads in addition to the NHS.
The FHWA recognizes commenters' observations that many State DOTs and
MPOs will need to develop capacity to address GHG emissions through
interagency coordination, stakeholder engagement, and the consideration
of strategies to support GHG reduction targets. The FHWA believes that
these examples of costs were addressed through the NPRM RIA labor hour
estimates for section 490.105, which assume that the level of effort
for setting targets in the first reporting period will be approximately
twice that of subsequent reporting periods. The FHWA has included in
the RIA a break-even analysis of the CO2 reductions from the
rule that would be necessary to equal its costs. This analysis
determined that the required reductions would represent a very small
proportion of total transportation CO2 emissions.
In addition, FHWA reiterates State DOTs and MPOs will not
experience costs from achieving GHG reduction targets since FHWA is not
requiring specific declining target values be established, nor is it
mandating penalties for failing to meet the targets established.
The FHWA recognizes that changes in fuel use may impact highway
funding. However, as this rulemaking does not require any reductions in
fuel use, this issue is outside of the scope of this rulemaking, nor
does FHWA have any authority to change the statutory funding scheme
established by Congress.
Comments on the Use of the Social Cost of Carbon
Comment: Several commenters raised concerns about the use of the
social cost of carbon dioxide (SC-CO2) to conduct a ``break-
even'' analysis of CO2 reductions required for the proposed
measure to equal its costs. These commenters asserted that use of the
Interagency Working Group (IWG) on Social Cost of Greenhouse Gases \19\
``interim'' social costs of GHGs overstate damages from GHG emissions.
In contrast, several commenters noted the social cost of carbon likely
significantly underestimates the actual cost of climate damages caused
by GHG emissions because important categories of climate damages cannot
be quantified.
---------------------------------------------------------------------------
\19\ Interagency Working Group on Social Cost of Greenhouse
Gases, U.S. Government. ``Technical Support Document: Social Cost of
Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive
Order 13990'' (February 2021), available at https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
---------------------------------------------------------------------------
Response: As discussed further in the RIA for the final rule, the
IWG on Social Cost of Greenhouse Gases published interim estimated for
the SC-CO2 per ton of carbon emissions for each year from
2020 to 2050. As noted by the IWG's technical support document prepared
under E.O. 13990, the SC-CO2 framework in principle can
capture all climate change impacts, including (but not limited to)
changes in net agricultural productivity, human health effects,
property damage from increased flood risk natural disasters, disruption
of energy systems, risk of conflict, environmental migration, and the
value of ecosystem services. The SC-CO2 estimates used in
the break-even analysis for this rule were developed over many years,
using transparent process, peer-reviewed methodologies, the best
science available at the time of that process, and with input from the
public. However, many important categories of climate damages cannot
currently be fully quantified and monetized, and so the SC-
CO2 values very likely underestimate the climate damages
caused by GHG pollution. The IWG's technical support document further
notes that the SC-CO2 as estimated should reflect the
societal value of reducing CO2 emissions by one metric ton,
and that the SC-CO2 is the theoretically appropriate value
to use in conducting economic analyses of policies that affect
CO2 emissions.\20\ The DOT is an IWG member, and FHWA has
reviewed the technical support document and has determined that the
recommended values are appropriate for use in the break-even analysis
in the RIA.
---------------------------------------------------------------------------
\20\ Interagency Working Group on Social Cost of Greenhouse
Gases, U.S. Government. ``Technical Support Document: Social Cost of
Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive
Order 13990'' (February 2021), available at https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf.
---------------------------------------------------------------------------
VIII. Rulemaking Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
The Office of Management and Budget (OMB) has determined that this
rulemaking is a significant regulatory action within the meaning of
E.O. 12866, as amended by E.O. 14094 (``Modernizing Regulatory
Review''), because it raises legal or policy issues for which
centralized review would meaningfully further the President's
[[Page 85389]]
priorities or the principles set forth E.O. 12866. The rule will not
have an annual effect on the economy of $200 million or more. The rule
will not adversely affect in a material way the economy, any sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or tribal governments
or communities. In addition, the changes would not interfere with any
action taken or planned by another agency and would not materially
alter the budgetary impact of any entitlements, grants, user fees, or
loan programs. As described above, FHWA estimates that total costs
associated with this rule, between 2023 and 2032, will be $10.8
million, discounted at 7 percent, and $12.7 million discounted at 3
percent (these figures are estimated in 2020 dollars). On an annual
basis, the total costs would be $1,535,045 discounted at 7 percent and
$1,494,406 discounted at 3 percent. The FHWA is unable to quantify the
benefits of the rulemaking; consequently, FHWA describes the expected
benefits qualitatively in the preamble and the RIA. These benefits
include potentially significant reductions in GHG emissions resulting
from decisions and actions based on greater consideration of GHG
emissions in transportation planning, public awareness of GHG emissions
trends, and better information on the impact of transportation
decisions on GHG emissions. While many of the benefits in the proposed
rule are difficult to quantify, FHWA believes that the benefits justify
the costs. As discussed in greater detail in the RIA, FHWA estimates
that benefits of this rule would exceed its costs with a reduction of
less than 0.01 percent of the average annual amount of CO2
emissions from U.S. transportation sources in 2019, based on a range of
discount rates used to estimate the social cost of CO2 and
the 7 and 3 percent discount rates used to estimate the total costs of
the final rule. The full RIA is available in the docket.
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 rule on small
entities and has determined that it is not anticipated to have a
significant economic impact on a substantial number of small entities.
The rule will affect two types of entities: State governments and MPOs.
State governments are not included in the definition of small entity
set forth in 5 U.S.C. 601. Metropolitan planning organizations are
considered governmental jurisdictions, and to qualify as a small entity
they would need to serve fewer than 50,000 people. See 5 U.S.C. 601(5).
Metropolitan planning organizations are designated to serve UZAs with
populations of 50,000 or more. See 23 U.S.C. 134(d)(1). Therefore, FHWA
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
C. Unfunded Mandates Reform Act of 1995
This rule would not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). The
Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to
prepare a written statement, which includes estimates of anticipated
impacts, before proposing ``any rule that includes any Federal mandate
that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of
$100,000,000 or more (adjusted annually for inflation) in any one
year.'' The current threshold after adjustment for inflation is $177
million, using the most current (2022) Implicit Price Deflator for the
Gross Domestic Product. This rule will not result in the expenditure by
State, local, and Tribal governments, in the aggregate, or by the
private sector, of $177 million or more in any one year (2 U.S.C.
1532). In addition, the definition of ``Federal Mandate'' in the
Unfunded Mandates Reform Act excludes financial assistance of the type
in which State, local, or Tribal governments have authority to adjust
their participation in the program in accordance with changes made in
the program by the Federal Government. The Federal-aid highway program
permits this type of flexibility.
D. Executive Order 13132 (Federalism Assessment)
This rule has been analyzed in accordance with the principles and
criteria contained in E.O. 13132, and FHWA has determined that this
rule will not have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA also has determined
that this rule will not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
E. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from OMB for each
collection of information they conduct, sponsor, or require through
regulations. The FHWA has determined that this rule contains collection
of information requirements for the purposes of the PRA. This rule
introduces a GHG performance measure that will be implemented as part
of the overarching TPM regulations in 23 CFR part 490, which includes
State DOT reporting on performance. The collection of State DOT reports
in support of 23 CFR 490.107 is covered by OMB Control No. 2125-0656.
The FHWA has analyzed this rule under the PRA and has determined
the following:
Respondents: 52 State DOTs.
Frequency: Single State Initial GHG Report, and ongoing biennial
reporting.
Estimated Average Burden per Response: Approximately 88 hours to
complete and submit the required report, or 44 hours annually.
Estimated Total Annual Burden Hours: Approximately 2,288 hours
annually.
In addition, MPO coordination and reporting activities are covered
by OMB Control No. 2132-0529, Metropolitan and Statewide and
Nonmetropolitan Transportation Planning.
F. National Environmental Policy Act
The FHWA has analyzed this rule pursuant to the NEPA and has
determined that it is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. Categorically excluded actions meet the
criteria for categorical exclusions under the Council on Environmental
Quality regulations and under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. This rule will establish in
FHWA regulations a performance measure for on-road CO2
emissions on the NHS for use by States and MPOs in measuring
transportation performance. The FHWA does not anticipate any adverse
environmental impacts from this rule, the purpose of which is to inform
decisionmaking about the transportation sector's contribution to GHG
emissions, and thereby contribute to environmental sustainability;
moreover, no unusual circumstances are present under 23 CFR 771.117(b).
G. Executive Order 13175 (Tribal Consultation)
The FHWA has analyzed this rule in accordance with the principles
and criteria contained in E.O. 13175, ``Consultation and Coordination
with Indian Tribal Governments.'' The rule will implement statutory
requirements under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) to establish
measures for States to assess the performance of the Interstate and
[[Page 85390]]
non-Interstate NHS, which FHWA interprets to include environmental
performance. This measure establishes requirements only for States and
MPOs that receive Title 23 Federal-aid highway funds and have NHS
mileage within their jurisdictions; it would not have 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. Accordingly, the funding and consultation requirements of
E.O. 13175 do not apply and a Tribal summary impact statement is not
required.
As noted above, FHWA anticipates the benefits from this rulemaking
include potentially significant reductions in GHG emissions resulting
from decisions and actions based on greater consideration of GHG
emissions in transportation planning by States and MPOs, public
awareness of GHG emissions trends, and better information on the impact
of transportation decisions on GHG emissions. Although this rulemaking
does not apply to Tribes, FHWA expects that Tribes would benefit from
potential reductions in GHG emissions that result from State and MPO
implementation of this rulemaking.
H. Executive Order 12898 (Environmental Justice)
The E.O. 12898 requires that each Federal Agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. The FHWA has
determined that this rule does not raise any environmental justice
issues.
I. 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 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 under authority delegated in 49 CFR 1.81 and 1.85.
Shailen P. Bhatt,
Administrator, Federal Highway Administration.
In consideration of the foregoing, FHWA amends Title 23, Code of
Federal Regulations by revising part 490, to read as follows:
PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES
0
1. The authority citation for part 490 continues to read as follows:
Authority: 23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85.
0
2. Amend Sec. 490.101 by adding in alphabetical order the definition
of ``Fuels and Financial Analysis System--Highways (Fuels & FASH)'' to
read as follows:
Sec. 490.101 Definitions.
* * * * *
Fuels and Financial Analysis System--Highways (Fuels & FASH) as
used in this part means FHWA's system of record for motor fuel, highway
program funding, licensed drivers, and registered vehicles data.
* * * * *
0
3. Amend Sec. 490.105 by:
0
a. Adding paragraph (c)(5);
0
b. Revising paragraph (d) introductory text, and adding paragraphs
(d)(1)(v) and (d)(4);
0
c. Adding paragraphs (e)(1)(i), (e)(1)(ii), and (e)(4)(i)(C), revising
paragraph (e)(4)(iii), and adding paragraph (e)(10); and
0
d. Revising paragraphs (f)(1)(i) and (f)(3), and adding paragraph
(f)(10).
The additions and revisions read as follows:
Sec. 490.105 Establishment of performance targets.
* * * * *
(c) * * *
(5) 490.507(b) for greenhouse gas (GHG) emissions on the NHS;
* * * * *
(d) Target scope. Targets established by State DOTs and MPOs shall,
regardless of ownership, represent the transportation network or
geographic area, including bridges that cross State borders, that are
applicable to the measures as specified in paragraphs (d)(1), (2), and
(4) of this section.
(1) * * *
(v) 490.503(a)(2) for the GHG measure specified in Sec.
490.507(b);
* * * * *
(4) MPOs shall establish a joint target for the GHG measure
specified in Sec. 490.507(b), for each urbanized area that meets the
criteria specified in paragraph (f)(10) of this section. The joint
target shall represent the performance of the transportation network
specified in Sec. 490.503(a)(2).
(e) * * *
(1) Schedule. State DOTs shall establish targets not later than the
dates provided in paragraphs (e)(1)(i) and (e)(1)(ii) of this section,
and for each performance period thereafter, in a manner that allows for
the time needed to meet the requirements specified in this section and
so that the final targets are submitted to FHWA by the due date
provided in Sec. 490.107(b).
(i) State DOTs shall establish initial targets not later than May
20, 2018, except as provided in paragraph (e)(1)(ii) of this section.
(ii) State DOTs shall establish initial targets for the GHG measure
identified in Sec. 490.507(b) not later than February 1, 2024.
* * * * *
(4) * * *
(i) * * *
(C) For the GHG measure in Sec. 490.105(c)(5), the performance
period will begin on January 1, 2022 and will extend for a duration of
4-years. Subsequent performance periods will begin as described in
paragraph (4)(i)(A) of this section.
* * * * *
(iii) Except as provided in paragraphs (e)(7) and (e)(8)(v), and
(e)(10)(i) of this section, State DOTs shall establish 2-year targets
that reflect the anticipated condition/performance level at the
midpoint of each performance period for the measures in paragraphs
(c)(1) through (7) of this section, and the anticipated cumulative
emissions reduction to be reported for the first 2 years of a
performance period by applicable criteria pollutant and precursor for
the measure in paragraph (c)(8) of this section.
* * * * *
(10) Targets for the GHG measure. Targets established for the GHG
measure in paragraph (c)(5) of this section shall be declining targets
for reducing tailpipe CO2 emissions on the NHS.
(i) The following requirements apply only to the targets
established for the State Initial GHG Report, described in Sec.
490.107(d), and 2026 Full Performance Period Progress Report, described
in Sec. 490.107(b)(3), for the measure in Sec. 490.507(b):
(A) State DOTs are exempt from the required 2-year target described
in paragraph (e)(4)(iii) of this section.
(B) State DOTs shall establish a 4-year target, required under
paragraph
[[Page 85391]]
(e)(4)(iv) of this section, and report this target in their 2024 State
Initial GHG Report, required under Sec. 490.107(d).
(C) The performance for the reference year shall be used as the
baseline performance.
(f) * * *
(1) * * *
(i) The MPOs shall establish 4-year targets, described in paragraph
(e)(4)(iv) of this section, for all applicable measures, described in
paragraphs (c) and (d) of this section. For the GHG measure described
in (c)(5) of this section, the targets established shall be declining
targets for reducing tailpipe CO2 emissions on the NHS.
* * * * *
(3) Target establishment options. For each performance measure
identified in paragraph (c) of this section, except the CMAQ Traffic
Congestion measures in paragraph (f)(5) of this section, MPOs meeting
the criteria under paragraph (f)(6)(iii) of this section for Total
Emissions Reduction measure, the MPOs shall establish targets for the
metropolitan planning area by either:
(i) Agreeing to plan and program projects so that they contribute
toward the accomplishment of the relevant State DOT target for that
performance measure; or
(ii) Committing to a quantifiable target for that performance
measure for their metropolitan planning area.
* * * * *
(10) Joint Targets for the GHG Measure. Where an urbanized area
contains mainline highways on the NHS, and any portion of that
urbanized area is overlapped by the metropolitan planning area
boundaries of two or more MPOs, those MPOs shall collectively establish
a single joint 4-year target for that urbanized area, described in
paragraph (e)(4)(iv) of this section. The target established shall be a
declining target for reducing tailpipe CO2 emissions on the
NHS. This joint target is in addition to the targets for the
metropolitan planning area required in paragraph (f)(1)(i) of this
section.
(i) The NHS designations and urbanized area data shall be from the
data contained in HPMS 1 year before the State DOT Baseline Performance
Period Report is due to FHWA.
(ii) Only one target shall be established for the entirety of each
applicable urbanized area regardless of roadway ownership. In
accordance with paragraph (f)(9) of this section, each MPO shall report
the same joint target for the urbanized area.
(iii) The target established for each urbanized area shall
represent a quantifiable target for that urbanized area.
0
4. Amend Sec. 490.107 by
0
a. Revising paragraphs (a)(1) and (b)(1)(i), and adding paragraph
(b)(1)(ii)(H);
0
b. Revising paragraph (b)(2)(i) and adding paragraph (b)(2)(ii)(J);
0
c. Revising paragraph (b)(3)(i) and adding paragraph (b)(3)(ii)(I);
0
d. Revising paragraph (c)(2); and
0
e. Adding paragraph (d).
The additions and revisions read as follows:
Sec. 490.107 Reporting on performance targets.
(a) * * *
(1) All State DOTs and MPOs shall report in accordance with the
schedule and content requirements under paragraphs (b), (c), and (d) of
this section, respectively.
* * * * *
(b) * * *
(1) * * *
(i) Schedule. State DOTs shall submit a Baseline Performance Period
Report to FHWA by October 1st of the first year in a performance
period. State DOTs shall submit their first Baseline Performance Period
Report to FHWA by October 1, 2018, and subsequent Baseline Performance
Period Reports to FHWA by October 1st every 4 years thereafter, except
for the GHG measure specified in Sec. 490.105(c)(5). For the Baseline
Performance Period Report, State DOTs shall submit information related
to the GHG measure in the report due to FHWA by October 1, 2026, and
every 4 years thereafter.
(ii) * * *
(H) GHG metric and metric information for the GHG measure. The
metric and the individual values used to calculate the GHG metric, as
described in Sec. 490.511(c), for the calendar year preceding the
reporting year, and a description of the data source(s) used for the
VMT information.
* * * * *
(2) * * *
(i) Schedule. State DOTs shall submit a Mid Performance Period
Progress Report to FHWA by October 1st of the third year in a
performance period. State DOTs shall submit their first Mid Performance
Period Progress Report to FHWA by October 1, 2020, and subsequent Mid
Performance Period Progress Reports to FHWA by October 1st every 4
years thereafter, except for the GHG measure specified in Sec.
490.105(c)(5). For the Mid Performance Period Progress Report, the
State DOTs shall submit information related to the GHG measure in the
report due to FHWA by October 1, 2028, and every 4 years thereafter.
(ii) * * *
(J) GHG metric and metric information for the GHG measure. The
metric and the individual values used to calculate the GHG metric, as
described in Sec. 490.511(c), for the calendar year preceding the
reporting year, and a description of the data source(s) used for the
VMT information.
* * * * *
(b) * * *
(3) * * *
(i) Schedule. State DOTs shall submit a progress report on the full
performance period to FHWA by October 1st of the first year following
the reference performance period. State DOTs shall submit their first
Full Performance Period Progress Report to FHWA by October 1, 2022, and
subsequent Full Performance Period Progress Reports to FHWA by October
1st every 4 years thereafter, except for the GHG measure specified in
Sec. 490.105(c)(5). For the Full Performance Period Progress Report,
State DOTs shall submit information related to the GHG measure in the
report due to FHWA by October 1, 2026, and every 4 years thereafter.
(ii) * * *
(I) GHG metric and metric information for the GHG measure. The
metric and the individual values used to calculate the GHG metric, as
described in Sec. 490.511(c), for the calendar year preceding the
reporting year, and a description of the data source(s) used for the
VMT information.
(c) * * *
(2) The MPOs shall report baseline condition/performance and
progress toward the achievement of their targets in the system
performance report in the metropolitan transportation plan in
accordance with part 450 of this chapter. For the GHG measure in Sec.
490.105(c)(5), the MPOs shall also report:
(i) The calculation of annual tailpipe CO2 emissions for
the NHS, and may include all public roads, described in Sec.
490.511(f), for the period between the current and previous system
performance report, and the reference year.
(ii) A description of the metric calculation method(s) used, as
described in Sec. 490.511(d). When the method(s) used are not
specified in Sec. 490.511(d), the MPO must include information
demonstrating the method(s) has valid and useful results for measuring
transportation related CO2.
* * * * *
(d) State Initial GHG Report. For the GHG measure in Sec.
490.105(c)(5), State DOTs shall submit an Initial GHG Report by
February 1, 2024.
[[Page 85392]]
(1) The State Initial GHG Report shall include:
(i) Targets. The 4-year target for the performance period, as
required in Sec. 490.105(e), and a discussion, to the maximum extent
practicable, of the basis for the established target;
(ii) Baseline performance. Performance derived from the data
collected for the reference year, for the 4-year target required under
paragraph (d)(1) of this section;
(iii) Relationship with other performance expectations. A
discussion, to the maximum extent practicable, on how the established
target in paragraph (d)(1) of this section support expectations
documented in longer range plans, such as the State asset management
plan required by 23 U.S.C. 119(e) and the long-range statewide
transportation plan provided in part 450 of this chapter; and
(iv) GHG metric and metric information for the GHG measure. The
metric and the individual values used to calculate the GHG metric, as
described in Sec. 490.511(c), for the reference year.
(2) For the State Initial GHG Report, the State DOT shall use the
following data to calculate the GHG metric, described in Sec.
490.511(c), for the reference year.
(i) Data published by FHWA for the CO2 factors for each
on-road fuel type associated with the reference year.
(ii) The fuel consumed data shall meet the requirements in Sec.
490.509(g) for the reference year.
(iii) The VMT data shall meet the requirements of Sec. 490.509(h)
for the reference year.
0
5. Amend Sec. 490.109 by adding paragraph (d)(1)(v), revising
paragraph (d)(1)(vi), and adding paragraphs (d)(1)(vii) and (viii),
(e)(4)(vi) and (vii), (e)(6), and (f)(1)(v) 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) * * *
(v) Data contained within Fuels & FASH on August 15th of the year
in which the significant progress determination is made that represents
performance from the prior year for targets established for the GHG
measure in Sec. 490.105(c)(5), and data from Fuels & FASH that
represents performance for the reference year.
(vi) Baseline condition/performance data contained in Fuels & FASH,
HPMS, and NBI of the year in which the Baseline Period Performance
Report is due to FHWA that represents baseline conditions/performances
for the performance period for the measures in Sec. Sec. 490.105(c)(1)
through (5). For the GHG measure, specified in Sec. 490.105(c)(5), the
baseline performance data from HPMS shall be the data contained within
HPMS on November 30th of the year the Baseline Period Performance
Report is due to FHWA.
(vii) Data contained within the HPMS on November 30th of the year
in which the significant progress determination is made that represents
performance from the prior year for targets established for the GHG
measure specified in Sec. 490.105(c)(5), and HPMS data as of November
30, 2023 that represents performance for the reference year.
(viii) The CO2 factor specified in Sec. 490.509(f) for
the baseline performance, prior year, and reference year for targets
established for the GHG measure specified in Sec. 490.105(c)(5).
* * * * *
(e) * * *
(4) * * *
(vi) A State DOT's reported data are not accepted in the Fuels &
FASH, by the data extraction date specified in paragraph (d)(1) of this
section for the GHG measure in Sec. 490.105(c)(5).
(vii) A State DOT's reported data are not accepted in the HPMS by
the data extraction date specified in paragraph (d)(1) of this section
for the GHG measure in Sec. 490.105(c)(5).
* * * * *
(6) Phase-in of new requirements for the GHG Measure. The following
requirements shall only apply to the GHG targets, described in Sec.
490.513(d), and the significant progress determination conducted
immediately after the submittal of the 2024 Mid Performance Period
Progress Report, described in Sec. 490.107(b)(2):
(i) Consistent with Sec. 490.105(e)(10)(i), State DOTs are not
required to establish a 2-year target, and, consistent with
490.107(b)(2), State DOTs will not submit information related to the
GHG measure in the 2024 Mid Performance Period Progress Report.
(ii) At the midpoint of the performance period, FHWA shall not make
a determination of significant progress toward the achievement of 2-
year targets for the GHG measure; and
(iii) The FHWA will classify the assessment of progress toward the
achievement of targets in paragraph (e)(6)(ii) of this section as
``progress not determined'' and they will be excluded from the
requirement under paragraph (e)(2) of this section.
(f) * * *
(1) * * *
(v) If significant progress is not made for the target established
for the GHG measure in Sec. 490.105(c)(5), then the State DOT shall
document the actions it will take to achieve the GHG performance
target.
* * * * *
Subpart E--National Performance Management Measures To Assess
Performance of the National Highway System
0
6. Amend Sec. 490.503 by adding paragraph (a)(2) to read as follows:
Sec. 490.503 Applicability.
(a) * * *
(2) The Greenhouse Gas (GHG) measure in Sec. 490.507(b) is
applicable to all mainline highways on the Interstate and non-
Interstate NHS.
* * * * *
0
7. Amend Sec. 490.505 by adding in alphabetical order definitions of
``Greenhouse gas'', and ``Reference year'' to read as follows:
Sec. 490.505 Definitions.
* * * * *
Greenhouse gas (GHG) is any gas that absorbs infrared radiation
(traps heat) in the atmosphere. Approximately 97 percent of on-road GHG
emissions are carbon dioxide (CO2) from burning fossil fuel.
Other transportation GHGs are methane (CH4), nitrous oxide
(N2O), and hydrofluorocarbons (HFCs).
* * * * *
Reference year is calendar year 2022 for the purpose of the GHG
measure.
* * * * *
0
8. Amend Sec. 490.507 by revising the introductory text and adding
paragraph (b) to read as follows:
Sec. 490.507 National performance management measures for system
performance.
There are three performance measures to assess the performance of
the Interstate System and the performance of the non-Interstate NHS for
the purpose of carrying out the National Highway Performance Program
(referred to collectively as the NHS Performance measures).
* * * * *
(b) One measure is used to assess GHG emissions, which is the
percent change in tailpipe CO2 emissions on the NHS compared
to the reference year (referred to as the GHG measure).
0
9. Amend Sec. 490.509 by adding paragraphs (f) through (h) to read as
follows:
[[Page 85393]]
Sec. 490.509 Data requirements.
* * * * *
(f) The FHWA will post on the FHWA website, no later than August
15th of each reporting year, the CO2 factors for each on-
road fuel type that will be used to calculate the GHG metric for the
GHG measure in Sec. 490.105(c)(5).
(g) Fuel sales information needed to calculate the fuel consumed
for the GHG measure in Sec. 490.507(b) shall:
(1) Represent the total number of gallons of fuel consumed by fuel
type; and
(2) Be based on fuels sales data for the prior calendar year, and
reported to Fuels & FASH.
(h) Annual vehicle miles traveled (VMT) needed to calculate the GHG
measure in Sec. 490.507(b) shall come from the best available data
that represents the prior calendar year and is consistent, to the
maximum extent practicable, with data submitted to HPMS. The VMT data
needed to calculate the GHG metric in Sec. 490.511(c) for the
reference year, shall be the HPMS data as of November 30, 2023.
0
10. Amend Sec. 490.511 by adding paragraphs (a)(2), (c), (d), and (f)
to read as follows:
Sec. 490.511 Calculation of National Highway System performance
metrics.
(a) * * *
(2) Annual Total Tailpipe CO2 Emissions on the NHS for
the GHG measure in Sec. 490.507(b) (referred to as the GHG metric).
* * * * *
(c) Tailpipe CO2 emissions on the NHS for a given year
shall be computed in million metric tons (mmt) and rounded to the
nearest hundredth as follows:
[GRAPHIC] [TIFF OMITTED] TR07DE23.000
Where:
(Tailpipe CO2 Emissions on NHS)CY = Total
tailpipe CO2 emissions on the NHS in a calendar year
(expressed in mmt, and rounded to the nearest hundredth);
T = the total number of on-road fuel types;
t = an on-road fuel type;
(Fuel Consumed)t = the quantity of total annual fuel consumed for
on-road fuel type ''t'' (to the nearest thousand gallons);
(CO2 Factor)t = is the amount of CO2 released
per unit of fuel consumed for on-road fuel type ``t'';
NHS VMT = annual total vehicle-miles traveled on NHS (to the nearest
one million vehicle-miles); and
Total VMT = annual total vehicle-miles traveled on all public roads
(to the nearest one million vehicle-miles).
(d) For the GHG measure specified in Sec. 490.507(b), MPOs are
granted additional flexibility in how they calculate the GHG metric,
described in Sec. 490.511(a)(2). MPOs may use the MPO share of the
State's VMT as a proxy for the MPO share of CO2 emissions in
the State, VMT estimates along with MOVES \1\ emissions factors, FHWA's
Energy and Emissions Reduction Policy Analysis Tool (EERPAT) model, or
other method the MPO can demonstrate has valid and useful results for
CO2 measurement.
* * * * *
(f) Tailpipe CO2 emissions generated by on-road sources
travelling on the NHS (the GHG metric), and generated by on-road
sources travelling on all roadways (the step in the calculation prior
to computing the GHG metric) shall be calculated as specified in
paragraph (c) of this section. The calculations shall be reported in
the State Biennial Performance Reports, as required in Sec. 490.107,
and shall address the following time periods.
(1) The reference year, as required in Sec. 490.107(b)(1)(ii)(H);
and
(2) The calendar year preceding the reporting year, as required in
Sec. 490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and (b)(3)(ii)(I).
\1\ MOVES (Motor Vehicle Emission Simulator) is EPA's emission
modeling system that estimates emissions for mobile sources at the
national, county, and project level for criteria air pollutants,
GHGs, and air toxics. See https://www.epa.gov/moves. The EMFAC model
is used in California for emissions analysis.
0
11. Amend Sec. 490.513 by adding paragraph (d) to read as follows:
Sec. 490.513 Calculation of National Highway System performance
measures.
* * * * *
(d) The GHG measure specified in Sec. 490.507(b) shall be computed
to the nearest tenth of a percent as follows:
[GRAPHIC] [TIFF OMITTED] TR07DE23.001
Where:
(Tailpipe CO2 Emissions on NHS)CY = total
tailpipe CO2 emissions on the NHS in a calendar year
(expressed in million metric tons (mmt), and rounded to the nearest
hundredth); and
(Tailpipe CO2 Emissions on NHS)reference year
= total tailpipe CO2 emissions on the NHS in calendar
year 2022 (expressed in million metric tons (mmt), and rounded to
the nearest hundredth).
0
12. Add Sec. 490.515 to read as follows:
[[Page 85394]]
Sec. 490.515 Severability.
The provisions of Sec. Sec. 490.105(c)(5), 105(d), 105(d)(1)(v),
105(d)(4), 105(e)(1)(i), 105(e)(1)(ii), 105(e)(4)(i)(C),
105(e)(4)(iii), 105(e)(10), 105(f)(1)(i), 105(f)(3), 105(f)(10),
107(a)(1), 107(b)(1)(i), 107(b)(1)(ii)(H), 107(b)(2)(i),
107(b)(2)(ii)(J), 107(b)(3)(i), 107(b)(3)(ii)(I), 107(c)(2), 107(d),
109(d)(1)(v), 109(d)(1)(vi), 109(d)(1)(vii), 109(d)(1)(viii),
109(e)(4)(vi), 109(e)(4)(vii), 109(e)(6), 109(f)(1)(v), 503(a)(2), 505,
507(b), 509(f), 509(g), 509(h), 511(a)(2), 511(c), 511(d) 511(f), and
513(d) are separate and severable from one another and from the other
provisions of this part. If any provision is stayed or determined to be
invalid, the remaining provisions shall continue in effect.
[FR Doc. 2023-26019 Filed 12-6-23; 8:45 am]
BILLING CODE 4910-22-P