Rule2023-26019
National Performance Management Measures; Assessing Performance of the National Highway System, Greenhouse Gas Emissions Measure
Primary source
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Published
December 7, 2023
Effective
January 8, 2024
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
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 (CO<INF>2</INF>) 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.
Full Text
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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]]
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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.
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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 (CO<INF>2</INF>) 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 <a href="/cdn-cgi/l/email-protection#307a5f585e771e74514659554370545f441e575f46"><span class="__cf_email__" data-cfemail="88c2e7e0e6cfa6cce9fee1edfbc8ece7fca6efe7fe">[email protected]</span></a>, or
Mr. Lev Gabrilovich, Office of the Chief Counsel, (202) 366-3813, or
via email at <a href="/cdn-cgi/l/email-protection#642801124a230506160d080b120d070c24000b104a030b12"><span class="__cf_email__" data-cfemail="f5b99083dbb29497879c999a839c969db5919a81db929a83">[email protected]</span></a>. 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
<a href="http://www.regulations.gov">www.regulations.gov</a> 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 <a href="http://www.federalregister.gov">www.federalregister.gov</a> and the Government
Publishing Office's website at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
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
CO<INF>2</INF> 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 CO<INF>2</INF> 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.
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\1\ The proposed GHG measure specifically applies to
CO<INF>2</INF> emissions, which is the predominant human-produced
GHG. CO<INF>2</INF> 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 <a href="https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021">https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021</a>.
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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. CO<INF>2</INF>
emissions, and each additional ton of CO<INF>2</INF> produced by the
combustion of fossil fuels contributes to future warming and other
climate impacts.
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\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 <a href="https://www.ipcc.ch/report/ar6/wg1/#SPM">https://www.ipcc.ch/report/ar6/wg1/#SPM</a>.
\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.
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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 <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/</a>;
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 <a href="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/">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/</a>; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/</a>.
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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 CO<INF>2</INF> 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 CO<INF>2</INF>
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 CO<INF>2</INF> 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 CO<INF>2</INF>
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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>
emissions from transportation in the performance management framework,
including the impact of CO<INF>2</INF> 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 <a href="https://www.ncdc.noaa.gov/billions/">https://www.ncdc.noaa.gov/billions/</a>, 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.
---------------------------------------------------------------------------
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:
<bullet> 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.''
<bullet> 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.''
<bullet> 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.
<bullet> 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 . . .''.
<bullet> 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 . . .''.
<bullet> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>
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 CO<INF>2</INF>
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
CO<INF>2</INF> 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 CO<INF>2</INF> 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. CO<INF>2</INF> emissions. In
2021, the transportation sector accounted for 34.8 percent of total
U.S. CO<INF>2</INF> emissions, with 82.7 percent of the sector's total
CO<INF>2</INF> emissions coming from on-road sources.\7\ The
transportation sector is expected to remain the largest source of U.S.
CO<INF>2</INF> 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
<a href="https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021">https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021</a>.
\8\ U.S. Energy Information Administration, 2021: Annual Energy
Outlook 2021, available at <a href="https://www.eia.gov/outlooks/aeo/tables_ref.php">https://www.eia.gov/outlooks/aeo/tables_ref.php</a>.
\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
<a href="https://nca2018.globalchange.gov/chapter/12/">https://nca2018.globalchange.gov/chapter/12/</a>.
---------------------------------------------------------------------------
In addition to being the largest source of U.S. CO<INF>2</INF>
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 CO<INF>2</INF> produced
by the combustion of fossil fuels contributes to future warming and
other climate impacts.
---------------------------------------------------------------------------
\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 <a href="https://www.ipcc.ch/report/ar6/wg1/#SPM">https://www.ipcc.ch/report/ar6/wg1/#SPM</a>.
\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 <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/13/fact-sheet-the-biden-harris-electric-vehicle-charging-action-plan/</a>;
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 <a href="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/">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/</a>; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/</a>.
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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 CO<INF>2</INF> 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 CO<INF>2</INF> 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.
---------------------------------------------------------------------------
\15\ In this section, the citations to 23 CFR part 490 refer to
provisions as amended by this final rule.
---------------------------------------------------------------------------
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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>. 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 CO<INF>2</INF> 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:
<bullet> 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?
<bullet> 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?
<bullet> What changes to the proposed measure or its implementation
in TPM could better the impact of transportation decisions on
CO<INF>2</INF> emissions, and enable States to achieve tailpipe
CO<INF>2</INF> emissions reductions necessary to achieve national
targets?
<bullet> 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?
<bullet> 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]]
<bullet> 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?
<bullet> 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:
<bullet> 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?
<bullet> 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.
<bullet> 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.
<bullet> 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 CO<INF>2</INF> 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 CO<INF>2</INF>
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
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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. CO<INF>2</INF> emissions, FHWA is
implementing Congress's express direction regarding NHPP goals.
Measuring environmental performance though the GHG performance measure
will assist States to consider CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>
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
CO<INF>2</INF> 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 CO<INF>2</INF> 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
CO<INF>2</INF> 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.
---------------------------------------------------------------------------
\16\ See Biden-Harris Administration Takes Step Forward to
Combat Climate Change, Announces Proposed Transportation Greenhouse
Gas Emission Reduction Framework, available at <a href="https://highways.dot.gov/newsroom/biden-harris-administration-takes-step-forward-combat-climate-change-announces-proposed">https://highways.dot.gov/newsroom/biden-harris-administration-takes-step-forward-combat-climate-change-announces-proposed</a>.
---------------------------------------------------------------------------
The FHWA also believes that it is important for the measure to
address total tailpipe CO<INF>2</INF> emissions on the NHS rather than
normalizing this value by population or other factors, since
atmospheric CO<INF>2</INF> concentrations are ultimately influenced by
the total quantity of CO<INF>2</INF> 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 CO<INF>2</INF> 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, CO<INF>2</INF> and other GHGs take many years to leave the
atmosphere, resulting in increasing global atmospheric concentrations
of CO<INF>2</INF> 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 CO<INF>2</INF>
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 CO<INF>2</INF>
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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>
emissions relative to 2005 levels by 2030 and net-zero on-road
CO<INF>2</INF> 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 CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> 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
CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF>. 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 <a href="https://www.fhwa.dot.gov/tpm/reporting/state/">https://www.fhwa.dot.gov/tpm/reporting/state/</a>.
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
CO<INF>2</INF> 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.
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\17\ See Office of Highway Policy Information, Federal Highway
Administration, Traffic Volume Trends December 2022, available at
<a href="https://www.fhwa.dot.gov/policyinformation/travel_monitoring/22dectvt/">https://www.fhwa.dot.gov/policyinformation/travel_monitoring/22dectvt/</a>; Traffic Volume Trends December 2019, available at <a href="https://www.fhwa.dot.gov/policyinformation/travel_monitoring/19dectvt/">https://www.fhwa.dot.gov/policyinformation/travel_monitoring/19dectvt/</a>.
---------------------------------------------------------------------------
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 CO<INF>2</INF> 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 CO<INF>2</INF> in
addition to other gases such as methane (CH<INF>4</INF>), nitrous oxide
(N<INF>2</INF>O), and hydrofluorocarbons (HFCs). According to EPA data,
CO<INF>2</INF> accounts for approximately 97 percent of on-road GHG
emissions when weighting the 100-year global warming potential of
CO<INF>2</INF> and other greenhouse gases.\18\ The FHWA concluded that
because approximately 97 percent of on-road GHG emissions are from
CO<INF>2</INF>, including non-CO<INF>2</INF> 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 CO<INF>2</INF> emissions, would follow notice and comment
rulemaking.
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\18\ See EPA Inventory of U.S. Greenhouse Gas Emissions and
Sinks: 1990-2021, table 2-13, available at <a href="https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021">https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2021</a>. EPA's estimates weight CO<INF>2</INF> 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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Sec. 490.509 Data Requirements
Comments on CO<INF>2</INF> Emissions Factor
Comment: Several commenters provided feedback on the proposal for
FHWA to provide a standard CO<INF>2</INF> emissions factor for each
fuel type. A few of the commenters said FHWA should establish
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> emissions
estimates for the transportation sector as reported in the EPA's
Inventory of U.S. GHG Emissions and Sinks do not include CO<INF>2</INF>
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 CO<INF>2</INF> emissions as
it develops the standard CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> estimates are calculated by multiplying
gallons of fuel taxed by each State by the CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> factor,
see the discussion under Comments on CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> emissions on the NHS facilities directly. This
is inherently different from State DOTs, which are required to
calculate CO<INF>2</INF> 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 CO<INF>2</INF> 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
CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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 CO<INF>2</INF> 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-CO<INF>2</INF>) to conduct a ``break-
even'' analysis of CO<INF>2</INF> 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.
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\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 <a href="https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf</a>.
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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-CO<INF>2</INF> 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-CO<INF>2</INF> 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-CO<INF>2</INF> 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-
CO<INF>2</INF> values very likely underestimate the climate damages
caused by GHG pollution. The IWG's technical support document further
notes that the SC-CO<INF>2</INF> as estimated should reflect the
societal value of reducing CO<INF>2</INF> emissions by one metric ton,
and that the SC-CO<INF>2</INF> is the theoretically appropriate value
to use in conducting economic analyses of policies that affect
CO<INF>2</INF> 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.
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\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 <a href="https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf</a>.
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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 CO<INF>2</INF>
emissions from U.S. transportation sources in 2019, based on a range of
discount rates used to estimate the social cost of CO<INF>2</INF> 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
[…truncated; see source link]Indexed from Federal Register on December 7, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.