Rule2025-06664
National Performance Management Measures; Assessing Performance of the National Highway System, Greenhouse Gas Emissions Measure
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 18, 2025
Effective
May 19, 2025
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This final rule repeals a requirement that State departments of transportation (State DOT) and metropolitan planning organizations (MPO) establish declining carbon dioxide (CO<INF>2</INF>) targets for the greenhouse gas (GHG) measure and report on progress toward the achievement of the target.
Full Text
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<title>Federal Register, Volume 90 Issue 74 (Friday, April 18, 2025)</title>
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[Federal Register Volume 90, Number 74 (Friday, April 18, 2025)]
[Rules and Regulations]
[Pages 16463-16466]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-06664]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Part 490
[Docket No. FHWA-2025-0001]
RIN 2125-AG16
National Performance Management Measures; Assessing Performance
of the National Highway System, Greenhouse Gas Emissions Measure
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule repeals a requirement that State departments
of transportation (State DOT) and metropolitan planning organizations
(MPO) establish declining carbon dioxide (CO<INF>2</INF>) targets for
the greenhouse gas (GHG) measure and report on progress toward the
achievement of the target.
DATES: This final rule is effective May 19, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. Gary A. Jensen, Office of Natural
Environment, (202) 366-2048, or via email at <a href="/cdn-cgi/l/email-protection#85c2e4f7fcabcfe0ebf6e0ebc5e1eaf1abe2eaf3"><span class="__cf_email__" data-cfemail="ffb89e8d86d1b59a918c9a91bf9b908bd1989089">[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#723e17045c351310001b1e1d041b111a32161d065c151d04"><span class="__cf_email__" data-cfemail="135f76653d547271617a7f7c657a707b53777c673d747c65">[email protected]</span></a>. Office hours are from 8 a.m. to
4:30 p.m. ET, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Deregulatory Action
The purpose of this deregulatory action is to repeal the
requirement that State DOTs and MPOs assess the performance of the
National Highway System (NHS) under the National Highway Performance
Program (NHPP) by establishing declining CO<INF>2</INF> emissions
targets and measuring and reporting on the percent change in tailpipe
CO<INF>2</INF> emissions on the NHS from the calendar year 2022 (also
referred to as the Greenhouse Gas or GHG measure). This repeal will
alleviate a burden on State DOTs and MPOs that, had it been
implemented, would have imposed costs with no predictable level of
benefits and without clear legal authority. This final rule does not
prohibit State DOTs and MPOs from choosing voluntarily to measure and
assess CO<INF>2</INF> on the NHS or other roads.
B. Summary of the Deregulatory Action in Question
This final rule repeals the GHG measure. By repealing this measure,
FHWA will remove regulations that, if they had been implemented, would
have required State DOTs and MPOs to undertake administrative
activities to establish declining GHG targets, calculate their progress
toward their selected targets, report to FHWA, and determine a plan of
action to make progress toward their selected targets if they fail to
make significant progress during a performance period.
C. Costs and Benefits
This final rule is a deregulatory action. Because the final rule
establishing the GHG measure was never implemented, States and MPOs
incurred minimal, if any, costs to implement the GHG measure.\1\ For
these reasons, cost savings are not quantified. However, repealing this
measure would have the qualitative benefit of streamlining FHWA
regulations by removing regulations that were not authorized by statute
from the Code of Federal Regulations (CFR). This deregulatory action
would also have the qualitative benefit of providing regulatory
certainty to State DOTs and MPOs by aligning the CFR with recent court
decisions discussed below.
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\1\ However, had the rule been implemented, FHWA estimates that
this deregulatory action would have resulted in cost savings
equivalent to the estimated costs of the rule over a 10-year period
(i.e., $10.8 million, discounted at 7 percent, or $12.7 million,
discounted at 3 percent) (2020 dollars). This would have equated to
estimated annualized cost savings of $1.5 million (2020 dollars).
Costs associated with the establishment of the GHG measure can be
found in the rulemaking docket for that action at:
<a href="http://www.regulations.gov/document/FHWA-2021-0004-39830">www.regulations.gov/document/FHWA-2021-0004-39830</a>.
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II. Regulatory History
The Moving Ahead for Progress in the 21st Century Act (MAP-21)
(Pub. L. 112-141) transformed the Federal-aid Highway Program by
establishing new requirements for performance management to ensure the
most efficient investment of Federal transportation funds. The Fixing
America's Surface Transportation (FAST) Act (Pub. L. 114-94) continued
these requirements. Performance management increases the accountability
and transparency of the Federal-aid Highway Program and provides a
framework to support improved investment decision making through a
focus on performance outcomes for key national transportation goals.
FHWA conducted several rulemakings implementing the MAP-21 and FAST
Act performance management framework. Most relevant to this 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), which 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
Improvement (CMAQ) Program.
[[Page 16464]]
In the preamble to the PM3 NPRM, FHWA sought public comment on
whether and how to establish a CO<INF>2</INF> emissions measure in the
final rule. FHWA published the PM3 final rule on January 18, 2017 (82
FR 5970) (``2017 GHG rule''), and included the first iteration of a GHG
measure, which required State DOTs and MPOs to measure the total annual
tons of CO<INF>2</INF> emissions from all on-road mobile sources.
On October 5, 2017 (82 FR 46427), FHWA proposed to repeal the PM3
final rule's GHG measure in light of policy direction to review
existing regulations and determine whether changes would be appropriate
to eliminate duplicative regulations, reduce costs, and streamline
regulatory processes. After considering the public comments received,
on May 31, 2018 (83 FR 24920), FHWA repealed the PM3 final rule's GHG
measure, effective on July 2, 2018 (``2018 GHG repeal''). 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. All other performance management measures established by the
PM3 final rule remain in place.
FHWA published a NPRM on July 15, 2022 (87 FR 42401), proposing to
reestablish the GHG measure. After reconsidering the arguments for the
2018 GHG repeal, FHWA again proposed to require State DOTs and MPOs
that have NHS mileage within their State geographic boundaries and
metropolitan planning area boundaries, respectively, to establish, not
only targets for reducing CO<INF>2</INF> emissions generated by on-road
mobile sources, but declining targets--an even more burdensome
requirement than 2017 GHG rule. FHWA explained in the preamble that the
reestablishment of the GHG measure was intended to advance the policy
preferences outlined in two Executive Orders.\2\
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\2\ See Executive Order 13990, Protecting Public Health and the
Environment and Restoring Science To Tackle the Climate Crisis, and
Executive Order 14008, Tackling the Climate Crisis at Home and
Abroad. These executive orders have since been revoked by the
President on January 20, 2025, in Executive Order 14148, Initial
Rescissions of Harmful Executive Orders and Actions, and Executive
Order 14154, Unleashing American Energy.
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FHWA issued a final rule reestablishing the GHG measure in December
2023 (``2023 GHG rule''). As it did in the 2017 GHG rule, FHWA's 2023
GHG rule relied on 23 U.S.C. 150(c)(3) as authority for the GHG
measure, and concluded that the agency's determination to the contrary
in the 2018 GHG repeal represented an unduly narrow view of the
statute.\3\ However, the 2023 GHG rule never took effect because 22
States filed lawsuits challenging the 2023 GHG rule in Federal courts
located in Texas and Kentucky.\4\ Those courts have since concluded the
2023 final rule is not authorized by 23 U.S.C. 150(c)(3) and that the
GHG measure was promulgated in excess of FHWA's statutory authority or
arbitrary and capricious.\5\ Upon motions filed by DOT, the appeals
were dismissed by the Courts of Appeals for both the Fifth and Sixth
Circuits. There is no pending litigation, and no other party may
challenge the voluntary dismissal. This final rule to repeal the GHG
measure will provide regulatory certainty to State DOTs and MPOs.
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\3\ See 88 FR 85367.
\4\ See Texas v. USDOT, C.A. No. 5:23-cv-304, (N.D. Tex.);
Kentucky v. Fed. Highway Admin., C.A. No. 5:23-cv-162 (W.D. Ky.).
\5\ See Texas v. USDOT, 726 F. Supp. 3d 695 (N.D. Tex. 2024);
Kentucky v. Fed. Highway Admin., 728 F. Supp. 3d 501 (W.D. Ky.
2024).
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After further consideration and review of the governing statutory
provisions; the relevant judicial rulings; and Executive Order 14148,
Initial Rescissions of Harmful Executive Orders and Actions (90 FR
8237), Executive Order 14154, Unleashing American Energy (90 FR 8353),
and Executive Order 14219, Ensuring Lawful Governance and Implementing
the President's ``Department of Government Efficiency'' Deregulatory
Initiative (90 FR 10583), FHWA repeals the 2023 GHG rule.
III. Administrative Procedure Act
Under the Administrative Procedure Act, the requirement for prior
notice and an opportunity for public comment does not apply when the
agency, for good cause, finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.'' See
5 U.S.C. 553(b)(B). FHWA finds that notice and an opportunity for
public comment are unnecessary for this rulemaking because FHWA does
not have legal discretion to allow the GHG measure to become effective.
Specifically, two U.S. District Courts held that FHWA exceeded its
statutory authority in promulgating the 2023 GHG rule or that the rule
was arbitrary and capricious, the rule has been vacated, and appeals of
those decisions have been dismissed. Consequently, this rule cannot
become effective, and so repealing the rule has no substantive effect
on the public. Further, in light of the underlying lack of statutory
authority to regulate in this area, repeal of the GHG measure is not
discretionary as a matter of law and so there is no benefit to
providing time for comment on the agency's course of action.\6\
Therefore, FHWA finds good cause to issue this final rule without
notice and an opportunity for public comment.
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\6\ See, e.g., Priests for Life v. U.S. Dep't of HHS, 772 F.3d
229, 276 (D.C. Cir. 2014), vacated and remanded on other grounds sub
nom. Zubik v. Burwell, 578 U.S. 403 (2016) (per curiam) (good cause
existed to issue rule without notice and comment period where agency
reasonably interpreted that promulgating the rule was necessary to
comply with court order); see also EME Homer City Generation, LP v.
EPA, 795 F.3d 118, 134-35 (D.C. Cir. 2015) (agency had good cause to
issue interim rule without notice and opportunity for comments to
rescind agency's prior regulatory approvals consistent with D.C.
Circuit decision holding those approvals to have been erroneous;
``commentators could not have said anything during a notice and
comment period that would have changed that fact.'').
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IV. Repeal of the GHG Measure
This final rule repeals the GHG measure adopted in the 2023 GHG
rule. After reconsidering and rejecting the analysis supporting the
2018 GHG repeal, FHWA readopted the GHG measure in the 2023 GHG rule as
a matter of discretion through a strained reading of statutory language
found in 23 U.S.C. 150(c). Today, we stand by the best reading of the
plain language of the statute, which was summarized in the preamble to
the 2018 GHG repeal.\7\ The statute does not address CO<INF>2</INF>
emissions explicitly or require FHWA to include a GHG measure among the
national performance measures. While the establishment of the measure
may have been a matter of discretion for FHWA, its repeal is not.
Rather, repeal is necessary in light of subsequent court rulings
supporting the legal analysis provided in the 2018 GHG repeal. Finally,
repeal of the GHG measure does not preclude State DOTs and MPOs from
tracking CO<INF>2</INF> emissions related to their own transportation
programs, or from establishing their own measures and targets outside
the national performance management program.
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\7\ See 2018 GHG repeal, section B(1), Reconsideration of Legal
Authority to Adopt GHG Measure, 83 FR 24923.
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After further consideration and review of the governing statutory
provisions, and the relevant judicial rulings, FHWA has again
reconsidered its interpretation of the statutory language of 23 U.S.C.
150(c)(3) and now believes the narrow construction adopted in the 2018
GHG rule is the best reading of the statute. FHWA incorporates the
analysis of the 2018 GHG repeal herein by reference and
[[Page 16465]]
proposes to repeal the GHG measure based on the same reasoning
expressed therein, as well as on the reasoning of the decisions by the
Federal courts in Kentucky and Texas.
V. Rulemaking Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review)
The Office of Management and Budget (OMB) has determined that this
final rule is a significant regulatory action within the meaning of
Executive Order (E.O.) 12866 and within the meaning of DOT regulatory
policies and procedures due to the significant public interest in
regulations related to performance management. It is anticipated that
the economic impact of this rulemaking will not meet the threshold in
section 3(f)(1) of E.O. 12866 for the reasons discussed below.
Because the 2023 final rule establishing the GHG measure was never
implemented, States and MPOs incurred minimal, if any, costs to
implement the GHG measure.\8\ For these reasons, cost savings are not
quantified. However, repealing this measure would have the qualitative
benefit of streamlining FHWA regulations by removing regulations that
were not authorized by statute from the Code of Federal Regulations.
This deregulatory action would also have the qualitative benefit of
providing regulatory certainty to State DOTs and MPOs by aligning the
CFR with recent court decisions as previously discussed.
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\8\ However, had the rule been implemented, FHWA estimates that
a deregulatory action repealing the rule would have resulted in cost
savings equivalent to the estimated costs of the rule over a 10-year
period, i.e., $10.8 million, discounted at 7 percent, and $12.7
million, discounted at 3 percent, equating to an estimated
annualized cost of $1.5 million. This would equate to estimated
annualized cost savings of $1.5 million. See the Regulatory Impact
Analysis for the 2023 final rule, National Performance Management
Measures; Assessing Performance of the National Highway System,
Greenhouse Gas Emissions Measure, RIN 2125-AF99, Final Regulatory
Impact Analysis, Final Regulatory Flexibility Analysis, FHWA-2021-
0004-39830.
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B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This final rule is an E.O. 14192 deregulatory action. Cost savings
are not quantified.
C. Regulatory Flexibility Act
Since notice and comment rulemaking is not necessary for this rule,
the analytical requirements of the Regulatory Flexibility Act (Pub. L.
96-354, 5 U.S.C. 601-612) do not apply.
D. Unfunded Mandates Reform Act of 1995
FHWA has determined that this final rule does not impose unfunded
mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not include a
Federal mandate that may result in expenditures of $151 million or more
in any 1 year (when adjusted for inflation) for either State, local,
and tribal governments in the aggregate, or by the private sector.
Additionally, the definition of ``Federal mandate'' in the Unfunded
Mandates Reform Act excludes financial assistance of the type in which
State, local, or tribal governments have authority to adjust their
participation in the program in accordance with changes made in the
program by the Federal Government. The Federal-aid highway program
permits this type of flexibility.
E. Executive Order 13132 (Federalism Assessment)
FHWA has analyzed this action in accordance with the principles and
criteria contained in E.O. 13132. FHWA has determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a federalism assessment. FHWA has also determined that
this final rule does not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
F. Executive Order 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities apply to this program.
Local entities should refer to the Catalog of Federal Domestic
Assistance Program Number 20.205, Highway Planning and Construction,
for further information.
G. Paperwork Reduction Act
Under the PRA (44 U.S.C. 3501, et seq.), Federal agencies must
obtain approval from the OMB for each collection of information they
conduct, sponsor, or require through regulations. The DOT has analyzed
this rule under the PRA and has determined that this rulemaking does
not contain collection of information requirements for the purposes of
the PRA.
H. National Environmental Policy Act
FHWA has analyzed this final rule for the purpose of NEPA, as
amended (42 U.S.C. 4321 et seq.), and has determined that this rule
would not have any effect on the quality of the environment and meets
the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).
Further, as the Texas court concluded, FHWA lacked authority under the
statute to promulgate the greenhouse gas measure, so FHWA lacks
discretion to maintain the measure; as a non-discretionary action,
further NEPA analysis is not required. Further NEPA analysis is not
required for the additional reason that the greenhouse gas measure was
enjoined before taking effect (and never went into effect), meaning
that the final rule repealing the measure will not change the status
quo.
I. Executive Order 13175 (Tribal Consultation)
FHWA has analyzed this final rule under E.O. 13175, dated November
6, 2000, and believes that the action would not have substantial direct
effects on one or more Indian tribes; would not impose substantial
direct compliance costs on Indian tribal governments; and would not
preempt tribal laws. The rulemaking addresses obligations of Federal
funds to State DOTs for Federal-aid Highway Projects and would not
impose any direct compliance requirements on Indian tribal governments.
Therefore, a tribal summary impact statement is not required.
J. Executive Order 13211 (Energy Effects)
FHWA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FHWA has determined that this is not a
significant energy action under that order and is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Therefore, a Statement of Energy Effects is not required.
K. Regulation Identifier Number
A RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in the spring and fall of each
year. The RIN number contained in the heading of this document can be
used to cross-reference this action with the Unified Agenda.
List of Subjects in 23 CFR Part 490
Bridges, Highway safety, Highways and roads, Reporting and
recordkeeping requirements.
[[Page 16466]]
Issued under authority delegated in 49 CFR 1.85 on:
Gloria M. Shepherd,
Executive Director, Federal Highway Administration.
In consideration of the foregoing, FHWA amends Title 23, Code of
Federal Regulations by revising part 490 to read as follows:
PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES
0
1. The authority citation for part 490 continues to read as follows:
Authority: 23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85.
Subpart A--General Information
Sec. 490.101 [Amended]
0
2. Amend Sec. 490.101 by removing the definition for Fuels and
Financial Analysis System-Highways (Fuels & FASH).
Sec. 490.105 [Amended]
0
3. Amend Sec. 490.105 by:
0
a. Removing and reserving paragraph (c)(5);
0
b. Removing ``and (4)'' in paragraph (d) introductory text;
0
c. Removing and reserving paragraphs (d)(1)(v) and (d)(4);
0
d. Removing and reserving paragraphs (e)(1)(i), (e)(1)(ii), and
(e)(4)(i)(C);
0
e. Removing ``, and (e)(10)(i)'' in paragraph (e)(4)(iii);
0
f. Removing and reserving paragraph (e)(10);
0
g. Removing the second sentence of paragraph (f)(1)(i);
0
h. Removing the first instance of ``MPOs'' in paragraph (f)(3)
introductory text and adding in its place ``and MPOs''; and
0
i. Removing and reserving paragraph (f)(10).
Sec. 490.107 [Amended]
0
4. Amend Sec. 490.107 by:
0
a. Removing ``, and (d)'' in paragraph (a)(1);
0
b. Removing ``, except for the GHG measure specified in Sec.
490.105(c)(5)'' from the second sentence of paragraph (b)(1)(i), the
third sentence of paragraph (b)(1)(i), and removing and reserving
paragraph (b)(1)(ii)(H);
0
c. Removing ``, except for the GHG measure specified in Sec.
490.105(c)(5)'' from the second sentence of paragraph (b)(2)(i), the
third sentence of paragraph (b)(2)(i), and removing and reserving
paragraph (b)(2)(ii)(J);
0
d. Removing ``, except for the GHG measure specified in Sec.
490.105(c)(5)'' from the second sentence of paragraph (b)(3)(i),
removing the third sentence of paragraph (b)(3)(i), and removing and
reserving paragraph (b)(3)(ii)(I);
0
e. Removing the second sentence in paragraph (c)(2) introductory text
and removing paragraphs (c)(2)(i) and (ii) and (d).
Sec. 490.109 [Amended]
0
5. Amend Sec. 490.109 by removing and reserving paragraph (d)(1)(v),
removing ``Sec. Sec. 490.105(c)(1) through (5)'' in paragraph
(d)(1)(vi) and adding in its place ``Sec. Sec. 490.105(c)(1) through
(4)'', removing the second sentence of paragraph (d)(1)(vi), and
removing paragraphs (d)(1)(vii) and (viii), (e)(4)(vi) and (vii),
(e)(6), and (f)(1)(v).
Subpart E--National Performance Management Measures To Assess
Performance of the National Highway System
Sec. 490.503 [Amended]
0
6. In Sec. 490.503 remove and reserve paragraph (a)(2).
Sec. 490.505 [Amended]
0
7. In Sec. 490.505 remove the definitions of ``Greenhouse gas'' and
``Reference year''.
Sec. 490.507 [Amended]
0
8. Amend Sec. 490.507 by:
0
a. Removing the word ``three'' in paragraph (a) introductory text and
adding in its place ``two''; and
0
b. Removing and reserving paragraph (b).
Sec. 490.509 [Amended]
0
9. In Sec. 450.509 remove paragraphs (f) through (h).
Sec. 490.511 [Amended]
0
10. In Sec. 490.511 remove and reserve paragraphs (a)(2), (c), (d),
and (f).
Sec. 490.513 [Amended]
0
11. In Sec. 490.513 remove paragraph (d).
Sec. 490.515 [Removed]
0
12. Remove and reserve Sec. 490.515.
[FR Doc. 2025-06664 Filed 4-17-25; 8:45 am]
BILLING CODE 4910-22-P
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