85364 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

1The proposed GHG measure specifically applies 

to CO2 emissions, which is the predominant 

human-produced GHG. CO2 is also the predominant 

GHG from on-road mobile sources, accounting for 

approximately 97 percent of total GHG emissions 

weighted by global warming potential in 2021. See 

U.S. Environmental Protection Agency, 2023: 

Inventory of U.S. Greenhouse Gas Emissions and 

Sinks: 1990–2021, table 2–13, available at https:// 

www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2021. 

2See IPCC, 2021: Summary for Policymakers. In: 

Climate Change 2021: The Physical Science Basis. 

Contribution of Working Group I to the Sixth 

Assessment Report of the Intergovernmental Panel 

on Climate Change, available at https://

www.ipcc.ch/report/ar6/wg1/#SPM. 

DEPARTMENT OF TRANSPORTATION 

Federal Highway Administration 

23 CFR Part 490 

[FHWA Docket No. FHWA–2021–0004] 

RIN 2125–AF99 

National Performance Management 

Measures; Assessing Performance of 

the National Highway System, 

Greenhouse Gas Emissions Measure 

AGENCY: Federal Highway 

Administration (FHWA), U.S. 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: This final rule amends 

FHWA’s regulations governing national 

performance management measures and 

establishes a method for the 

measurement and reporting of 

greenhouse gas (GHG) emissions 

associated with transportation (GHG 

measure). It requires State departments 

of transportation (State DOT) and 

metropolitan planning organizations 

(MPO) to establish declining carbon 

dioxide (CO2) targets for the GHG 

measure and report on progress toward 

the achievement of those targets. The 

rule does not mandate how low targets 

must be. Rather, State DOTs and MPOs 

have flexibility to set targets that are 

appropriate for their communities and 

that work for their respective climate 

change and other policy priorities, as 

long as the targets aim to reduce 

emissions over time. The FHWA will 

assess whether State DOTs have made 

significant progress toward achieving 

their targets. 

DATES: This final rule is effective 

January 8, 2024. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John G. Davies, Office of Natural 

Environment, (202) 366–6039, or via 

email at JohnG.Davies@dot.gov, or Mr. 

Lev Gabrilovich, Office of the Chief 

Counsel, (202) 366–3813, or via email at 

Lev.Gabrilovich@dot.gov. Office hours 

are from 8 a.m. to 4:30 p.m., E.T., 

Monday through Friday, except Federal 

holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

This document, the notice of 

proposed rulemaking (NPRM), all 

comments received, and all supporting 

material may be viewed online at 

www.regulations.gov using the docket 

number listed above. Electronic retrieval 

help and guidelines are available on the 

website. It is available 24 hours each 

day, 365 days each year. An electronic 

copy of this document may also be 

downloaded from the Office of the 

Federal Register’s website at 

www.federalregister.gov and the 

Government Publishing Office’s website 

at www.GovInfo.gov. 

I. Executive Summary 

The FHWA is amending its 

regulations on national performance 

management measures at 23 CFR part 

490 (part 490) and establishing a 

method for the measurement and 

reporting of GHG emissions. The 

environmental sustainability, and 

specifically the carbon footprint, of the 

transportation system is a critically 

important attribute that State DOTs can 

and should use to assess the 

performance of the Interstate and nonInterstate NHS. Section 150(c) of Title 

23, U.S.C., clearly directs FHWA to 

establish performance measures that the 

State DOTs can use to assess 

performance of the Interstate and nonInterstate NHS. Although the statute 

does not define the meaning of 

‘‘performance’’ of the Interstate and 

non-Interstate NHS under 23 U.S.C. 

150(c), Congress identified national 

goals under 23 U.S.C. 150(b), which 

include environmental sustainability. 

See 23 U.S.C. 150(b)(6). To support the 

environmental sustainability national 

goal, FHWA is interpreting 

‘‘performance’’ of the Interstate System 

and non-Interstate NHS under 23 U.S.C. 

150(c) to include the system’s 

environmental performance. This 

definition of ‘‘performance’’ is also 

consistent with other Title 23, U.S.C. 

provisions, such as 23 U.S.C. 119, 

discussed later in this preamble. 

The GHG measure established in this 

rule is the same as the measure 

proposed in the NPRM, which is the 

percent change in on-road tailpipe CO2

emissions on the NHS relative to the 

reference year. The FHWA is finalizing 

a reference year of 2022 as part of this 

rule. The measure is part of the National 

Highway Performance Program (NHPP) 

performance measures that FHWA 

established in part 490 through prior 

rulemakings. The GHG measure requires 

State DOTs and MPOs that have NHS 

mileage within their State geographic 

boundaries and metropolitan planning 

area boundaries, respectively, to 

establish declining targets for reducing 

CO2 emissions 1 generated by on-road 

mobile sources. The regulation uses 

‘‘NHS’’ to mean the mainline highways 

of the NHS, consistent with the 

applicability of the measure described 

in § 490.503(a)(2). Consistent with the 

Transportation Performance 

Management (TPM) framework, State 

DOTs will establish 2- and 4-year 

statewide emissions reduction targets, 

and MPOs will establish 4-year 

emissions reduction targets for their 

metropolitan planning areas. In 

addition, the rule will require certain 

MPOs serving UZAs with populations of 

50,000 or more to establish additional 

joint targets. Specifically, when the 

metropolitan planning area boundaries 

of two or more MPOs overlap any 

portion of an UZA, and the UZA 

contains NHS mileage, those MPOs will 

establish joint 4-year targets for that 

UZA. This joint target will be 

established in addition to each MPO’s 

target for their metropolitan planning 

area. State DOTs and MPOs have the 

flexibility to set targets that work for 

their respective climate change policies 

and other policy priorities, so long as 

they are declining. The State DOTs and 

MPOs are also required to report on 

their progress in meeting the targets. 

The final rule applies to the 50 States, 

the District of Columbia, and Puerto 

Rico, consistent with the definition of 

the term ‘‘State’’ in 23 U.S.C. 101(a). To 

realize the benefits of a GHG measure as 

soon as is practicable, State DOTs will 

first establish targets and report those 

targets by February 1, 2024, and 

subsequent targets will be established 

and reported no later than October 1, 

2026, with biennial reports thereafter. 

The GHG measure will help the 

United States (U.S.) confront the 

increasingly urgent climate crisis. The 

Sixth Assessment Report by the 

Intergovernmental Panel on Climate 

Change (IPCC), released on August 7, 

2021, confirms that human activities are 

increasing GHG concentrations that 

have warmed the atmosphere, ocean, 

and land at a rate that is unprecedented 

in at least the last 2000 years.2 Changes 

in extreme events, along with 

anticipated future increases in the 

occurrence and severity of these events 

because of climate change, threaten the 

reliability, safety, and efficiency of the 

transportation system and the people 

who rely on it to move themselves and 

transport goods. At the same time, 


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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. 

4White House Fact Sheet: The Biden-Harris 

Electric Vehicle Charging Action Plan (December 

13, 2021), available at https://www.whitehouse.gov/ 

briefing-room/statements-releases/2021/12/13/factsheet-the-biden-harris-electric-vehicle-chargingaction-plan/; White House Fact Sheet: President 

Biden Sets 2030 Greenhouse Gas Pollution 

Reduction Target Aimed at Creating Good-Paying 

Union Jobs and Securing U.S. Leadership on Clean 

Energy Technologies (Apr. 22, 2021), available at 

https://www.whitehouse.gov/briefing-room/ 

statements-releases/2021/04/22/fact-sheetpresident-biden-sets-2030-greenhouse-gaspollution-reduction-target-aimed-at-creating-goodpaying-union-jobs-and-securing-u-s-leadership-onclean-energy-technologies/; White House Fact 

Sheet: President Biden’s Leaders Summit on 

Climate (Apr. 23, 2021), available at https://

www.whitehouse.gov/briefing-room/statementsreleases/2021/04/23/fact-sheet-president-bidensleaders-summit-on-climate/. 

transportation contributes significantly 

to the causes of climate change,3

representing the largest source of U.S. 

CO2 emissions, and each additional ton 

of CO2 produced by the combustion of 

fossil fuels contributes to future 

warming and other climate impacts. 

The GHG measure aligns with 

Executive Orders (E.O.) described later 

in this preamble and supports the U.S. 

target of reducing GHG emissions 50–52 

percent below 2005 levels in 2030, on 

course to reaching net-zero emissions 

economywide no later than 2050.4 As a 

matter of transportation policy, DOT 

considers the GHG measure essential to 

improve transportation sector 

performance and demonstrate Federal 

leadership in the assessment and 

disclosure of climate pollution. The first 

step toward reducing GHG emissions 

involves inventorying and monitoring 

those emissions. By providing 

consistent and timely information about 

on-road mobile source emissions on the 

NHS, the GHG measure has the 

potential to increase public awareness 

of GHG emissions trends, improve the 

transparency of transportation 

decisions, enhance decisionmaking at 

all levels of government, and support 

better informed planning choices to 

reduce GHG emissions or inform 

tradeoffs among competing policy 

choices. 

Furthermore, the rule responds to the 

direction in sections 1 and 2 of E.O. 

13990 (86 FR 7037) that Federal 

agencies review any regulations issued 

or similar actions taken between January 

20, 2017, and January 20, 2021, and, 

consistent with applicable law, take 

steps to address any such actions that 

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 decisionmaking through the creation of 

complete, consistent, and timely 

information on GHG emissions; (2) 

greater accountability through the 

establishment of a more highly visible 

and transparent performance reporting 

system; and (3) improved progress 

toward achieving national 

transportation goals by including 

declining targets for CO2 emissions on 

the NHS in the set of existing 

performance requirements designed to 

help the Federal-aid highway program 

support balanced performance outcomes 

and national climate policies. 

II. Background and Regulatory History 

The 2012 Moving Ahead for Progress 

in the 21st Century Act (MAP–21) (Pub. 

L. 112–141) and the 2015 Fixing 

America’s Surface Transportation 

(FAST Act) (Pub. L. 114–94) 

transformed the Federal-aid highway 

program by establishing performance 

management requirements and tasking 

FHWA with carrying them out. To 

implement this program, FHWA 

established an organizational unit with 

dedicated full-time staff to coordinate 

with program staff from each of the 

performance areas to design and 

establish an approach to effectively 

implement the Title 23 performance 

provisions. The FHWA has technical 

and policy experts on staff to assist State 

DOTs and MPOs with implementing 

performance management and oversee 

program requirements. The FHWA 

implemented this performance 

management network through multiple 

rulemakings, which established in 23 

CFR part 490 the performance measures 

and requirements for target 

establishment, reporting on progress, 

and how determinations would be made 

on whether State DOTs have made 

significant progress toward applicable 

targets. 

The TPM requirements provide 

increased accountability and 

transparency, and facilitate efficient 

investment of Federal transportation 

funds through a focus on performance 

outcomes for the seven national 


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transportation goals concerning safety, 

infrastructure condition, congestion 

reduction, system reliability, freight 

movement and economic vitality, 

environmental sustainability, and 

reduced project delivery delays. See 23 

U.S.C. 150(b). Through performance 

management, recipients of Federal-aid 

highway funds make transportation 

investments to achieve short-term 

performance targets and make progress 

toward the seven statutory national 

transportation goals. Performance 

management allows FHWA to more 

effectively evaluate and report on the 

Nation’s surface transportation 

conditions and performance. 

Prior to MAP–21, there were no 

explicit statutory requirements for State 

DOTs or MPOs to demonstrate how 

their transportation programs supported 

national performance outcomes, making 

it difficult to assess the effectiveness of 

the Federal-aid highway program. The 

TPM requirements established in MAP– 

21 changed this paradigm by requiring 

State DOTs and MPOs to measure 

condition or performance, establish 

targets, assess progress toward targets, 

and report on condition or performance 

in a nationally consistent manner for the 

first time. See 23 U.S.C. 150(e); 23 CFR 

490.107. As previously noted, FHWA 

conducted several rulemakings 

implementing the performance 

management framework. Most relevant 

to this proposed rule are three related 

national performance management 

measure rulemakings in which FHWA 

established various measures for State 

DOTs and MPOs to use to assess 

performance, found at 23 CFR part 490. 

The first rulemaking focused on Safety 

Performance Management (PM1), and a 

final rule published on March 15, 2016 

(81 FR 13882), established performance 

measures for State DOTs to use to carry 

out the Highway Safety Improvement 

Program (HSIP). The second rulemaking 

on Infrastructure Performance 

Management (PM2) resulted in a final 

rule published on January 18, 2017 (82 

FR 5886), that established performance 

measures for assessing pavement 

condition and bridge condition for the 

NHPP. The third rulemaking, System 

Performance Management (PM3), 

established measures for State DOTs 

and MPOs to use to assess the 

performance of the Interstate and nonInterstate NHS for the purpose of 

carrying out the NHPP; to assess freight 

movement on the Interstate System; and 

to assess traffic congestion and on-road 

mobile source emissions for the purpose 

of carrying out the Congestion 

Mitigation and Air Quality (CMAQ) 

Program. The PM3 final rule was 

published on January 18, 2017 (82 FR 

5970). The PM3 rule addressed a broad 

set of performance issues and some of 

the national transportation goals, such 

as environmental sustainability, that 

were not addressed in the earlier 

rulemakings focused solely on safety 

and infrastructure condition. In the 

preamble to the PM3 proposed rule, 

published on April 22, 2016 (81 FR 

23806), FHWA requested public 

comment on whether to establish a CO2

emissions measure in the final rule and, 

if so, how to do so. The FHWA 

acknowledged the contribution of onroad sources to over 80 percent of U.S. 

transportation sector GHG emissions, 

and the historic Paris Agreement in 

which the U.S. and more than 190 other 

countries agreed in December 2015 to 

reduce GHG emissions, with the goal of 

limiting global temperature rise to less 

than 2 degrees Celsius above preindustrial levels by 2050. The FHWA 

recognized that achieving U.S. climate 

goals would require significant GHG 

reductions from on-road transportation 

sources. See 81 FR 23830. Against this 

backdrop, FHWA stated that it was 

considering how GHG emissions could 

be estimated and used to inform 

planning and programming decisions to 

reduce long term emissions. The FHWA 

sought comment on the potential 

establishment and effectiveness of a 

GHG emissions measure as a planning, 

programming, and reporting tool, and 

FHWA requested feedback on specific 

considerations related to the design of 

such a measure. See 82 FR 23831. 

In the PM3 final rule, after 

considering extensive public comments 

on whether and how FHWA should 

establish such a measure, FHWA 

established a GHG emissions 

performance measure to measure 

environmental performance in 

accordance with 23 U.S.C. 150(c)(3). 

The measure involved the percent 

change in CO2 emissions from the 

reference year 2017, generated by onroad mobile sources on the NHS. After 

a change in Administration, FHWA 

repealed the 2017 GHG measure before 

the respective due dates for target 

setting or reporting. On October 5, 2017 

(82 FR 46427), FHWA proposed to 

repeal the 2017 GHG measure. The 

FHWA requested public comment on 

whether to retain or revise the 2017 

GHG measure. See 82 FR 46430. In light 

of policy direction at the time to review 

existing regulations to determine 

whether changes would be appropriate 

to eliminate duplicative regulations, 

reduce costs, and streamline regulatory 

processes, and after considering public 

comments received, on May 31, 2018 

(83 FR 24920), FHWA repealed the GHG 

measure, effective on July 2, 2018. The 

FHWA identified three main reasons for 

the repeal: (1) reconsideration of the 

underlying legal authority; (2) the cost 

of the GHG measure in relation to the 

lack of demonstrated benefits; and (3) 

potential duplication of information 

produced by the GHG measure and 

information produced by other 

initiatives related to measuring CO2

emissions. 

On July 15, 2022 (87 FR 42401), 

FHWA published a NPRM to establish 

a GHG measure. After reconsidering the 

arguments for the 2018 final rule and 

finding them lacking, FHWA proposed 

to require State DOTs and MPOs that 

have NHS mileage within their State 

geographic boundaries and metropolitan 

planning area boundaries, respectively, 

to establish declining targets for 

reducing CO2 emissions generated by 

on-road mobile sources, that align with 

the Administration’s target of net-zero 

emissions, economy-wide, by 2050, 

accordance with the national policy 

established under section 1 of E.O. 

13990, ‘‘Protecting Public Health and 

the Environment and Restoring Science 

to Tackle the Climate Crisis’’, section 

201 of E.O. 14008, ‘‘Tackling the 

Climate Crisis at Home and Abroad’’, 

and at the Leaders Summit on Climate. 

Under the proposed rule, State DOTs 

would establish 2- and 4-year statewide 

emissions reduction targets, and MPOs 

would establish 4-year emissions 

reduction targets for their metropolitan 

planning areas. In addition, FHWA 

proposed to require MPOs serving select 

UZA to establish additional joint targets. 

The term ‘‘urbanized area’’ means a 

geographic area with a population of 

50,000 or more, as designated by the 

Bureau of the Census. See 23 U.S.C. 

101(a)(36); 23 CFR 450.104. The NPRM 

specified that when the metropolitan 

planning area boundaries of two or more 

MPOs overlap any portion of the same 

UZA, and the UZA contains NHS 

mileage, those MPOs would establish 

joint 4-year targets for that UZA. This 

joint target would be established in 

addition to each MPO’s target for their 

metropolitan planning area. Further, 

FHWA proposed to require State DOTs 

and MPOs to set declining targets for 

reducing tailpipe CO2 emissions on the 

NHS. Under the NPRM, State DOTs and 

MPOs would have the flexibility to set 

targets that work for their respective 

climate change policies and other policy 

priorities, so long as they aligned with 

the goal of net-zero GHG emissions, 

economy-wide, by 2050. The FHWA 

also proposed to require State DOTs and 

MPOs to report on their progress in 


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meeting the targets. The FHWA 

identified that the proposed rule would 

apply to the 50 States, the District of 

Columbia, and Puerto Rico, consistent 

with the definition of the term ‘‘State’’ 

in 23 U.S.C. 101(a). The FHWA now 

finalizes the proposed measure with 

some modifications. 

III. Statutory Authority for 

Performance Management and the GHG 

Measure 

The FHWA is establishing the GHG 

emissions performance measure under 

23 U.S.C. 150(c)(3), which calls for 

FHWA to establish performance 

measures that the States can use to 

assess performance of the Interstate and 

non-Interstate NHS for the purpose of 

carrying out the NHPP under 23 U.S.C. 

119. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)– 

(V). The FHWA received many 

comments both in support and in 

opposition to the Agency’s authority to 

promulgate this rulemaking. After 

considering these comments, FHWA 

reaffirms that Congress provided FHWA 

with clear authority to develop 

performance measures to help State 

DOTs and MPOs address significant and 

long-term issues impacting the 

performance of the transportation 

system. These comments and FHWA’s 

response are further discussed in 

Section VII of this preamble. 

The FHWA has determined that 

measuring environmental performance 

of the Interstate and non-Interstate NHS 

is vital to meeting the Agency’s 

obligations under 23 U.S.C. 150. As 

discussed in the NPRM, Congress 

charged FHWA with establishing 

performance measures, but did not 

define the term ‘‘performance,’’ as used 

in 23 U.S.C. 150(c)(3). Thus, FHWA 

must interpret this term in the context 

of the statute, FHWA’s statutory 

authority in Title 23, U.S.C., to 

administer the Federal-aid highway 

program, and congressional intent. 

Accordingly, FHWA is interpreting 

‘‘performance’’ of the Interstate System 

and non-Interstate NHS under 23 U.S.C. 

150(c) to include the system’s 

environmental performance, consistent 

with the program’s statutorily mandated 

goal to enhance the performance of the 

transportation system while protecting 

and enhancing the natural environment. 

See 23 U.S.C. 150(b). As described 

further in this preamble, FHWA 

interprets this national goal to mean that 

the Agency should take reasonable steps 

to assist State DOTs and MPOs measure 

and evaluate the GHG emissions on the 

Interstate and non-Interstate NHS. The 

FHWA’s interpretation of performance 

under 23 U.S.C. 150(c) is consistent 

with 23 U.S.C. 119(e), which calls for 

State DOTs to develop a performancedriven asset management plan that 

would ‘‘support progress toward the 

achievement of the national goals 

identified in section 150(b).’’ 23 U.S.C. 

119(e)(2). In addition, 23 U.S.C. 119(b) 

provides the purposes of the NHPP, 

which include supporting the condition 

and performance of the NHS, supporting 

construction of new facilities on the 

NHS, ensuring investments of Federalaid funds in highway construction are 

directed to support progress toward the 

achievement of performance targets 

established in a State asset management 

plan, and supporting activities to 

increase the resiliency of the NHS to 

mitigate the cost of damages from sea 

level rise, extreme weather events, 

flooding, wildfires, or other natural 

disasters. Assessing environmental 

performance provides support for 

activities to increase the resiliency of 

the NHS to mitigate the cost of damages 

from sea level rise, extreme weather 

events, flooding, wildfires, or other 

natural disasters. 

Importantly, FHWA does not believe 

its authority in this area is unlimited. 

Since 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V) 

refers only to the performance of the 

Interstate System and the non-Interstate 

NHS, FHWA only has authority to apply 

this measure to the Interstate System 

and the non-Interstate NHS. In addition, 

FHWA is only requiring that State DOTs 

and MPOs establish declining targets for 

GHG emissions on the NHS. The FHWA 

is neither requiring any specific targets 

nor mandating any penalties for failing 

to achieve these targets. The measure 

and the associated targets are intended 

only to help State DOTs and MPOs 

consistently and transparently monitor 

the current performance of the NHS, 

and plan transportation projects in a 

way that protects the long-term 

performance of the NHS. 

As described in the NPRM, see 87 FR 

42408, Congress specifically directed 

FHWA to establish measures for States 

to use to assess the performance of the 

Interstate System and the non-Interstate 

NHS. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)– 

(V). Although Congress did not define 

the meaning of performance under this 

provision, the statute identifies seven 

national goals to inform performance 

management. Environmental 

sustainability is one of the specifically 

identified goals, which is defined as 

‘‘enhanc[ing] the performance of the 

transportation system while protecting 

and enhancing the natural 

environment.’’ 23 U.S.C. 150(b)(6). 

Congress directed FHWA to determine 

the nature and scope of the specific 

performance measures that will fulfill 

the statutory mandate in 23 U.S.C. 

150(c), and has not clarified this 

authority even after FHWA finalized the 

three national performance management 

measure rulemakings described earlier. 

The FHWA notes that 23 U.S.C. 

150(c)(2)(C) limits performance 

measures to those described in 23 U.S.C. 

150(c). When FHWA repealed the GHG 

performance measure, the Agency took 

an unduly narrow view and determined 

that since 23 U.S.C. 150(c)(2)(C) directs 

FHWA to limit performance measures 

only to those described in 23 U.S.C. 

150(c), FHWA’s previous interpretation 

that performance of the Interstate 

System and the National Highway 

System under 23 U.S.C. 

150(c)(3)(A)(ii)(IV)–(V) includes 

environmental performance was overly 

broad. As FHWA described in the 

NPRM, see 87 FR 42408, this provision 

limits FHWA’s authority to establish 

measures States use to assess 

performance only to the Interstate 

System and the non-Interstate NHS. 

However, the provision does not 

otherwise limit the meaning of 

‘‘performance,’’ and upon 

reconsideration, FHWA has determined 

that its original interpretation of the 

scope of its section 150(c) authority 

from the 2017 final rule is the better 

read of the statute. Specifically, in light 

of the explicit statutory goal of 

environmental sustainability, the 

significant risks that climate changedriven extreme weather pose to the 

condition and performance of NHS, and 

FHWA’s unquestioned authority to 

establish performance measures, FHWA 

believes that it is appropriate to 

interpret the meaning of performance of 

the Interstate System and the nonInterstate NHS under 23 U.S.C. 

150(c)(3)(A)(ii)(IV)–(V) to include 

environmental performance. 

As described in the NPRM and 

previously discussed in this preamble, 

this GHG measure is consistent with 

other parts of Title 23, U.S.C., notably 

23 U.S.C. 119. Section 119(d)(1) of Title 

23, U.S.C., establishes eligibility criteria 

for using funds apportioned to a State 

for carrying out the NHPP, but does not 

set forth all relevant considerations for 

carrying out the program. For example, 

23 U.S.C. 119(d)(2) identifies purposes 

for eligible projects, including 

development and implementation of a 

State DOT’s asset management plan for 

the NHS under 23 U.S.C. 119(e), and 

environmental mitigation efforts related 

to projects funded under 23 U.S.C. 

119(g). Section 119(e) calls for a 

performance-driven asset management 

plan that would ‘‘support progress 

toward the achievement of the national 

goals identified in Section 150(b)’’, 


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5NOAA National Centers for Environmental 

Information (NCEI), 2022: U.S. Billion-Dollar 

Weather and Climate Disasters, available at https:// 

www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw7w73. 

6Ebi, 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. 

which includes the environmental 

sustainability national goal under 23 

U.S.C. 150(b)(6). Risk-based asset 

management planning under 23 U.S.C. 

119(e) includes consideration of lifecycle costs and risk management, 

financial planning, and investment 

strategies. Rapidly changing climate and 

increased weather extremes because of 

fossil fuel combustion directly impact 

the condition and performance of 

transportation facilities because of 

increases in heavy precipitation, coastal 

flooding, heat, wildfires, and other 

extreme events. Extreme events are 

already leading to transportation 

challenges, inducing societal and 

economic consequences, which will 

only increase in the years ahead. The 

number of billion-dollar climate disaster 

events has been much higher over the 

last 5 years than the annual average over 

the last 30 years.5 Low-income and 

vulnerable populations are 

disproportionately affected by the 

impacts of climate change.6 These 

impacts are not attributable to any 

single action, but are exacerbated by a 

series of actions, including actions taken 

under the Federal-aid highway program. 

Recognizing the need to plan for and 

consider the risks of extreme weather, 

Congress amended the requirements for 

States’ asset management plans under 

23 U.S.C. 119(e) to include lifecycle cost 

and risk management analyses that 

specifically consider extreme weather 

and resilience. See 23 U.S.C. 

119(e)(4)(D) (as amended by Pub. L. 

117–58, sec. 11105). Measuring 

environmental performance through the 

GHG performance measure will assist 

States in considering CO2 emissions 

from transportation in the performance 

management framework, including the 

impact of CO2 emissions on the 

medium- and long-term conditions of 

transportation assets arising from the 

risks of, and costs related to extreme 

weather, and help frame responses to 

the growing climate crisis. Therefore, 

the GHG performance measure is 

appropriate in light of 23 U.S.C. 119, 

and FHWA has determined that the 

Agency’s interpretation of 

‘‘performance’’ to include 

‘‘environmental performance’’ is 

consistent with 23 U.S.C. 119. 

As FHWA noted in the NPRM, several 

other provisions in Title 23, U.S.C., 

support FHWA’s authority for its 

proposal to address GHG emissions in 

this rulemaking. To help conceptualize 

FHWA’s framework for analyzing its 

authority under Title 23, U.S.C., this 

preamble restates these provisions as 

follows: 

• In Section 101(b)(3)(G), Congress 

declared that ‘‘transportation should 

play a significant role in promoting 

economic growth, improving the 

environment, and sustaining the quality 

of life.’’ 

• Section 134(a)(1) states as a matter 

of transportation planning policy that 

‘‘[i]t is in the national interest to 

encourage and promote the safe and 

efficient management, operation, and 

development of surface transportation 

systems . . . while minimizing 

transportation-related fuel consumption 

and air pollution through metropolitan 

and statewide transportation planning 

processes identified in this chapter.’’ 

• Section 134(c)(1) requires MPOs to 

develop long range plans and 

transportation improvement programs to 

achieve the objectives in 23 U.S.C. 

134(a)(1) through a performance-driven, 

outcome-based approach to planning. 

• Section 134(h) defines the scope of 

the metropolitan planning process. 

Paragraphs (h)(1)(E) and (I), 

respectively, require consideration of 

projects and strategies that will ‘‘. . . 

protect and enhance the environment, 

promote energy conservation, improve 

the quality of life . . .’’ and ‘‘. . . 

improve the resiliency and reliability of 

the transportation system . . .’’. 

• Section 135(d)(1) defines the scope 

of the statewide planning process. 

Paragraphs (d)(1)(E) and (I), 

respectively, require consideration of 

projects, strategies, and services that 

will ‘‘. . . protect and enhance the 

environment, promote energy 

conservation, improve the quality of life 

. . .’’, and ‘‘. . . improve the resiliency 

and reliability of the transportation 

system . . .’’. 

• Section 135(d)(2) requires the 

statewide transportation planning 

process to ‘‘. . . provide for the 

establishment and use of a performancebased approach to transportation 

decision-making to support the national 

goals described in Section 150(b) of this 

title . . .’’. 

The FHWA reaffirms that these Title 

23, U.S.C., provisions make it clear that 

assessing infrastructure performance 

under 23 U.S.C. 150(c)(3) properly 

encompasses the assessment of 

environmental performance, including 

GHG emissions and other climaterelated matters. As noted in FHWA’s 

May 2018 repeal of the 2017 GHG 

measure, nothing in the statute 

specifically requires FHWA to adopt a 

GHG emissions measure. However, 

consistent with the statutory provisions 

cited above, no provision of law 

prohibits FHWA from adopting a GHG 

emissions measure, despite ample 

opportunity for Congress to do so. 

On November 15, 2021, President 

Biden signed the Infrastructure 

Investment and Jobs Act (IIJA) (Pub. L. 

117–58, also known as the ‘‘Bipartisan 

Infrastructure Law’’) (BIL) into law. The 

BIL does not explicitly direct FHWA to 

assess environmental performance. 

However, Congress set forth new 

programs and eligibilities under BIL that 

State DOTs and MPOs will use to 

address GHG emissions, and 

environmental performance will be 

central to proper administration of the 

programs. Thus, this GHG measure will 

help State DOTs and MPOs effectively 

use these new transportation dollars. 

For example, BIL authorized a new 

Carbon Reduction Program (CRP) 

codified at 23 U.S.C. 175. The CRP 

provides billions of dollars for Fiscal 

Years 2022–2026 for use on a range of 

projects that can demonstrate reductions 

in transportation emissions over the 

project’s lifecycle. The CRP also 

requires State DOTs to develop a carbon 

reduction strategy in consultation with 

any MPO designated within the State to 

support efforts to reduce transportation 

emissions and identify projects and 

strategies to reduce these emissions. See 

23 U.S.C. 175(d). Similarly, BIL 

included new language regarding 

national electric vehicle charging and 

hydrogen, propane, and natural gas 

fueling corridors to support changes in 

the transportation sector that help 

achieve a reduction in GHG emissions. 

See 23 U.S.C. 151. These programs are 

two examples of Congress’ express focus 

on using transportation programs to 

reduce GHG emissions from 

transportation sources. The FHWA’s 

GHG measure will help State DOTs and 

MPOs track the effectiveness of their 

transportation investments in projects 

that reduce GHG emissions, both 

through these programs and through 

other programs, such as the Surface 

Transportation Block Grant Program 

authorized at 23 U.S.C. 133. 

The establishment of the GHG 

measure does not force investments in 

specific projects or strategies to reduce 

emissions, nor does it require the 

achievement of an absolute reduction 

target. However, FHWA has determined 

that the targets for the GHG measure 


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Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 85369 

should show a reduction in CO2

emissions. As discussed in response to 

comments in Section VII of this 

preamble, the establishment of 

declining targets is vital given the 

urgency of the climate crisis. 

Establishing declining targets will help 

State DOTs and MPOs plan toward 

reductions in GHG emissions and make 

Federal infrastructure investment 

decisions that reduce climate pollution, 

a principle set forth in E.O. 14008 (86 

FR 7626). State DOTs and MPOs will set 

targets that indicate a reduction in CO2

emissions, which FHWA has 

determined will be supportive of the 

policy goals set forth in 23 U.S.C. 

150(b). 

Although the rule requires declining 

targets for CO2 emissions, FHWA is not 

setting forth any requirements in this 

rulemaking to determine how State 

DOTs and MPOs should determine their 

declining targets. In addition, as 

directed by 23 U.S.C. 145, States 

determine which of their projects shall 

be federally financed by Federal-aid 

highway formula dollars. State DOTs 

and MPOs will set and determine targets 

based on appropriate data as informed 

by State DOT and MPO policies and 

priorities. The FHWA is not prescribing 

what declining targets would look like 

in each State or MPO, and FHWA is not 

requiring State DOTs and MPOs to 

achieve targeted emission reductions, 

nor prescribing the selection of specific 

projects under this rulemaking. Thus, 

this approach is consistent with the 

Agency’s authority under 23 U.S.C. 

150(c) to establish measures for States to 

use to assess the performance of the 

Interstate and non-Interstate NHS in the 

furtherance of the national goal to 

enhance the performance of the 

transportation system while protecting 

and enhancing the natural environment. 

In addition, adopting the measure for 

GHG emissions under 23 U.S.C. 

150(c)(3) is appropriate in light of the 

structure of the TPM program. As 

discussed in the NPRM, Congress 

required FHWA to establish 

performance measures for a number of 

programs in addition to the NHPP, 

including an emissions related measure 

for the CMAQ Program under 23 U.S.C. 

149. As discussed in the NPRM and in 

response to comments in Section VII of 

this preamble, the existence of the 

CMAQ emissions measure has raised 

questions regarding whether Congress 

intended FHWA to only measure 

emissions when those emissions are 

related to CMAQ, which is limited to 

criteria pollutants and nonattainment or 

maintenance areas under the Clean Air 

Act. However, this language only 

indicates congressional intent that 

FHWA establish a performance measure 

for on-road mobile source emissions for 

the purposes of carrying out the CMAQ 

Program. Nothing in 23 U.S.C. 150 

limits measures that take into account 

emissions only to measures established 

for the purposes of carrying out the 

CMAQ Program. The FHWA has 

determined that it is appropriate to 

examine relevant emissions as part of 

assessing performance of the Interstate 

and non-Interstate NHS in support of 

the NHPP. 

For all of these reasons, FHWA asserts 

the GHG measure is consistent with 

FHWA’s authority under 23 U.S.C. 

150(c). 

Reconsideration of Previous Actions 

As discussed in Section II of this 

preamble, and detailed in Section III.C 

of the NPRM, FHWA has previously 

proposed and finalized actions related 

to a GHG measure. Specifically, FHWA 

previously finalized the PM3 rule, 

through which the Agency considered 

extensive public comments on whether 

and how FHWA should establish a GHG 

measure. The FHWA determined that it 

was appropriate to measure 

environmental performance, specifically 

as the percent change in CO2 emissions 

from the reference year 2017, generated 

by on-road mobile sources on the NHS 

(82 FR 5970). On October 5, 2017 (82 FR 

46427), however, FHWA proposed to 

repeal the 2017 GHG measure. As 

discussed in more detail in the NPRM 

to this action, FHWA repealed the GHG 

measure on May 31, 2018 (83 FR 24920), 

in light of policy direction from the 

previous administration to review 

existing regulations to determine 

whether changes would be appropriate 

to eliminate duplicative regulations, 

reduce costs, and streamline regulatory 

processes, and after considering public 

comments received. The repeal was 

effective on July 2, 2018. The FHWA 

identified three main reasons for the 

repeal: (1) reconsideration of the 

underlying legal authority; (2) the cost 

of the GHG measure in relation to the 

lack of demonstrated benefits; and (3) 

potential duplication of information 

produced by the GHG measure and 

information produced by other 

initiatives related to measuring CO2

emissions. 

As part of this rulemaking, FHWA 

evaluated each of these rationales to 

examine whether they remain 

appropriate in light of current 

information. First, FHWA proposed, and 

now finalizes, that the Agency has 

reconsidered its interpretation of the 

statute. Consistent with the reasoning 

set forth in the PM3 rule, FHWA 

believes adopting this measure under 23 

U.S.C. 150(c) is appropriate in light of 

the Agency’s authority under that 

section and based on the Agency’s 

authority under Title 23, U.S.C. as a 

whole, as previously described in this 

section and detailed further in Section 

III.B of the NPRM. See 87 FR 42407– 

42410. Second, FHWA has determined 

that the benefits of the rulemaking, 

although difficult to quantify, are 

substantial and justify finalizing this 

action. In its 2022 NPRM, FHWA 

described how the substantial benefits 

of this regulation justified reconsidering 

and rejecting the Agency’s conclusion in 

the 2018 final rule that the benefits of 

a GHG measure were too speculative 

and outweighed by the costs to justify 

retaining the measure as part of the TPM 

program. See 87 FR 42410–42411. The 

benefits and policy rationale for this 

regulation are further described in 

Section IV of this preamble. Third, and 

as discussed in the 2022 NPRM, see 87 

FR 42411–42412, FHWA has 

determined that the information 

produced by the GHG measure is not 

duplicative in relation to information 

produced by other initiatives related to 

measuring CO2 emissions, but rather 

complements that data to support a 

whole-of-government approach to 

addressing GHG emissions. The 

importance of this measure is further 

described in Section IV of this 

preamble. 

FHWA adopts in full its analysis in 

the 2022 NPRM justifying the 

reconsideration and rejection of the 

conclusion from the 2018 final rule that 

23 U.S.C. 150 did not provide FHWA 

with authority to measure the 

environmental performance of the NHS 

and adopt a GHG measure, and that the 

overall statutory scheme of Title 23, 

U.S.C. supported a narrower 

interpretation of performance of the 

NHS, and emphasizes some key points 

here. In the 2018 repeal, FHWA 

concluded that 23 U.S.C. 119(d)(1)(A) 

delineates the national goals that are 

relevant to eligibility of projects for 

funding under the NHPP, and the 

national goals included in section 

119(d)(1)(A) are consistent with an 

interpretation of ‘‘performance’’ that 

focuses on the physical condition of the 

system and the efficiency of 

transportation operations across the 

system, rather than environmental 

performance. 83 FR 24923–24924. Upon 

reexamination of the statute, FHWA has 

determined that this previous 

interpretation was incorrect. Section 

119(d)(1) of Title 23, U.S.C., establishes 

eligibility criteria for using funds 

apportioned to a State for carrying out 

the NHPP, but does not set forth all 


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85370 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

7U.S. Environmental Protection Agency, 2023: 

Inventory of U.S. Greenhouse Gas Emissions and 

Sinks: 1990–2021, available at https://

www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2021. 

8U.S. Energy Information Administration, 2021: 

Annual Energy Outlook 2021, available at https:// 

www.eia.gov/outlooks/aeo/tables_ref.php. 

9 Jacobs, J.M., M. Culp, L. Cattaneo, P. 

Chinowsky, A. Choate, S. DesRoches, S. Douglass, 

and R. Miller, 2018: Transportation. In Impacts, 

Risks, and Adaptation in the United States: Fourth 

National Climate Assessment, Volume II 

[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. 

Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C. 

Stewart (eds.)]. U.S. Global Change Research 

Program, Washington, DC, USA, pp. 479–511. doi: 

10.7930/NCA4.2018.CH12, available at https://

nca2018.globalchange.gov/chapter/12/. 

10See EPA, Inventory of U.S. Greenhouse Gas 

Emissions and Sinks 1990–2021, at 2–28. 

relevant considerations for carrying out 

the program. Specifically, States are also 

required to establish asset management 

plans under 23 U.S.C. 119(e). These 

plans shall include strategies toward 

improving or preserving the condition 

of the assets and the performance of the 

system, including supporting progress 

toward the national goals in 23 U.S.C. 

150(b). FHWA’s previous interpretation 

ignored Congress’s express direction for 

States to develop these plans for the 

NHS, which address both asset 

condition and system performance, and 

referenced all of the national goals in 

section 150(b), rather than a subset of 

goals such as the goals identified in 23 

U.S.C. 119(d)(1). In addition, FHWA 

observes that 23 U.S.C. 119(d)(2) 

provides eligibility for projects under 

the NHPP that go beyond the limited 

subset of national goals listed in section 

119(d)(1). The statute identifies eligible 

projects that support the national goal of 

environmental sustainability, such as 

environmental restoration and pollution 

abatement, control of noxious weeds 

and establishment of native species, and 

other environmental mitigation efforts. 

See 23 U.S.C. 119(d)(2)(M)–(O). When 

FHWA repealed the PM3 rule and 

determined that performance measures 

under 23 U.S.C. 150(c)(3) are limited to 

advancing the nationals goal in section 

119(d)(1), the Agency did not 

appropriately consider the section 

119(e) requirement to develop an asset 

management plan that supports 

achievement of all national goals in 23 

U.S.C. 150(b), and eligibility for projects 

that support achieving environmental 

sustainability. In reexamining this 

authority, FHWA has determined that 

the Agency must consider the totality of 

23 U.S.C. 150(b) when interpreting the 

meaning of performance on the 

Interstate and non-Interstate NHS and 

how performance is to be measured. 

Additionally, FHWA has identified 

above several other provisions of Title 

23, U.S.C., that support FHWA’s 

proposal to address GHG emissions in 

this rulemaking and make it clear that 

assessing infrastructure performance 

under 23 U.S.C. 150(c)(3) properly 

encompasses the assessment of 

environmental performance, including 

GHG emissions. In the 2018 repeal final 

rule, FHWA considered these provisions 

irrelevant because they do not 

‘‘specifically direct[ ] or require[ ] FHWA 

to adopt a GHG measure.’’ 83 FR at 

24923. However, these provisions do 

not prohibit FHWA from adopting a 

GHG measure—nor does any other 

provision in Title 23—and by stating the 

importance of protecting the 

environment and improving the 

resiliency of the transportation system, 

including through the use of 

performance management, these 

provisions clearly support the use of a 

GHG measure to assess the 

environmental performance of the NHS. 

As discussed above, the passage of BIL 

added additional programs and 

eligibilities to Title 23, and the 

administration of these programs will 

greatly benefit from the measurement of 

the environmental performance, 

including measurement of GHG 

emissions on the NHS. FHWA believes 

that these provisions of Title 23, 

including those added after the 2018 

repeal of the GHG measure, serve to 

underscore the importance of 

reestablishing the GHG measure. 

As discussed in the preamble to the 

NPRM, FHWA acknowledges that this 

action largely reestablishes a measure 

similar to the measure finalized in 2017 

and repealed in 2018. See 83 FR 24920. 

However, as discussed in the preamble 

to the NPRM, FHWA expects that States 

and MPOs have no reliance interests 

resulting from establishment and the 

repeal of the 2017 GHG measure. See 87 

FR 42410. The FHWA repealed the 2017 

GHG measure before the respective due 

dates for target setting or reporting, and 

FHWA is unaware of any State DOTs or 

MPOs that incurred costs because of the 

promulgation and prompt repeal of that 

measure. Nor did the repeal itself 

impose any compliance costs on State 

DOTs or MPOs. Accordingly, FHWA 

does not expect this final rule to result 

in any increased burden on State DOTs 

or MPOs by virtue of the fact that 

FHWA previously established a similar 

measure that was repealed before any 

State DOTs or MPOs relied on and 

implemented its target setting and 

reporting requirements. This measure is 

a new one, which State DOTs and MPOs 

have not previously implemented. As a 

result, FHWA expects that States and 

MPOs would not have any reliance 

interests based on the repeal of the 2017 

GHG measure. After reviewing the 

comments on the proposal, FHWA 

reaffirms that any potential reliance 

interest would be outweighed by the 

benefits of this action, to the extent 

those interests exist. 

IV. Basis & Benefits of These 

Regulations 

The FHWA believes that the 

performance management requirements 

are a powerful tool for achieving all 

seven of the statutory national 

transportation goals, including the 

Federal-aid highway program’s national 

goal for environmental sustainability 

identified under 23 U.S.C. 150(b)(6), 

and establishing a GHG measure in 

FHWA’s TPM Program will provide a 

consistent basis for addressing the 

environmental sustainability of the 

transportation system and estimating 

on-road GHG emissions. In addition, the 

GHG measure will result in a consistent 

set of data that can be used to inform the 

future investment decisions of the 

Federal Government, State DOTs, and 

MPOs towards achieving their targets or 

goals. 

By establishing the GHG performance 

measure, FHWA is taking action to 

address the largest source of U.S. CO2

emissions. In 2021, the transportation 

sector accounted for 34.8 percent of 

total U.S. CO2 emissions, with 82.7 

percent of the sector’s total CO2

emissions coming from on-road 

sources.7 The transportation sector is 

expected to remain the largest source of 

U.S. CO2 emissions through 2050, 

increasing at an average annual rate of 

0.3 percent per year despite 

improvements in the energy efficiency 

of light-duty vehicles, trucks, and 

aircraft.8 Factors such as population 

growth, expansion of urban centers, a 

growing economy, and increased 

international trade are expected to result 

in growing passenger and freight 

movement. These changes can make 

GHG reductions and environmental 

sustainability both more challenging to 

implement and more important to 

achieve.9

In addition to being the largest source 

of U.S. CO2 emissions,10 the 

transportation sector is increasingly 

vulnerable to the effects of climate 

change including higher temperatures, 

more frequent and intense precipitation, 

and sea level rise. Much of existing 

transportation infrastructure was 

designed and constructed without 

consideration of these changes. The 

Sixth Assessment Report by the IPCC, 

released on August 7, 2021, confirms 

that human activities are increasing 

GHG concentrations that have warmed 


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11See IPCC, 2021: Summary for Policymakers. In: 

Climate Change 2021: The Physical Science Basis. 

Contribution of Working Group I to the Sixth 

Assessment Report of the Intergovernmental Panel 

on Climate Change, available at https://

www.ipcc.ch/report/ar6/wg1/#SPM. 

12 IPCC, 2021: Climate Change 2021: The Physical 

Science Basis. Contribution of Working Group I to 

the Sixth Assessment Report of the 

Intergovernmental Panel on Climate Change 

[Masson-Delmotte, V., P. Zhai, A. Pirani, S.L. 

Connors, C. Pe ́an, S. Berger, N. Caud, Y. Chen, L. 

Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. 

Lonnoy, J.B.R. Matthews, T.K. Maycock, T. 

Waterfield, O. Yelekc ̧i, R. Yu, and B. Zhou (eds.)]. 

Cambridge University Press. In Press. 

13 Jacobs, J.M., M. Culp, L. Cattaneo, P. 

Chinowsky, A. Choate, S. DesRoches, S. Douglass, 

and R. Miller, 2018: Transportation. In Impacts, 

Risks, and Adaptation in the United States: Fourth 

National Climate Assessment, Volume II 

[Reidmiller, D.R., C.W. Avery, D.R. Easterling, K.E. 

Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C. 

Stewart (eds.)]. U.S. Global Change Research 

Program, Washington, DC, USA, pp. 479–511. 

doi:10.7930/NCA4.2018.CH12. 

14White House Fact Sheet: The Biden-Harris 

Electric Vehicle Charging Action Plan (December 

13, 2021), available at https://www.whitehouse.gov/ 

briefing-room/statements-releases/2021/12/13/factsheet-the-biden-harris-electric-vehicle-chargingaction-plan/; White House Fact Sheet: President 

Biden Sets 2030 Greenhouse Gas Pollution 

Reduction Target Aimed at Creating Good-Paying 

Union Jobs and Securing U.S. Leadership on Clean 

Energy Technologies (Apr. 22, 2021), available at 

https://www.whitehouse.gov/briefing-room/ 

statements-releases/2021/04/22/fact-sheetpresident-biden-sets-2030-greenhouse-gaspollution-reduction-target-aimed-at-creating-goodpaying-union-jobs-and-securing-u-s-leadership-onclean-energy-technologies/; White House Fact 

Sheet: President Biden’s Leaders Summit on 

Climate (Apr. 23, 2021), available at https://

www.whitehouse.gov/briefing-room/statementsreleases/2021/04/23/fact-sheet-president-bidensleaders-summit-on-climate/. 

the atmosphere, ocean, and land at a 

rate that is unprecedented in at least the 

last 2000 years.11 According to the 

report, global mean sea level has 

increased between 1901 and 2018, and 

changes in extreme events such as 

heatwaves, heavy precipitation, 

hurricanes, wildfires, and droughts have 

intensified since the last assessment 

report in 2014.12 These changes in 

extreme events, along with anticipated 

future changes in these events because 

of climate change, threaten the 

reliability, safety and efficiency of the 

transportation system. At the same time, 

transportation contributes significantly 

to the causes of climate change 13 and 

each additional ton of CO2 produced by 

the combustion of fossil fuels 

contributes to future warming and other 

climate impacts. 

The first step toward reducing GHG 

emissions involves inventorying and 

monitoring those emissions. By 

establishing a consistent method for 

estimating GHG emissions and reporting 

on trends, the GHG measure aligns with 

E.O. 13990, E.O. 14008, and supports a 

U.S. target of reducing GHG emissions 

economy-wide 50 to 52 percent below 

2005 by 2030, on a course toward 

reaching net-zero emissions 

economywide by no later than 2050.14

Section 1 of E.O. 13990, ‘‘Protecting 

Public Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis,’’ (86 FR 7037), articulates 

national policy objectives, including 

listening to the science, improving 

public health and protecting the 

environment, reducing GHG emissions, 

and strengthening resilience to the 

impacts of climate change. The E.O. 

14008, ‘‘Tackling the Climate Crisis at 

Home and Abroad,’’ (86 FR 7619), 

recommits the U.S. to the Paris 

Agreement and calls on the U.S. to 

begin the process of developing its 

nationally determined contribution to 

global GHG reductions. See E.O. 14008, 

§ 102. The E.O. 14008 also calls for a 

government-wide approach to the 

climate crisis and acknowledges 

opportunities to create well-paying, 

union jobs to build a modern, 

sustainable infrastructure, to provide an 

equitable, clean energy future, and to 

put the U.S. on a path to achieve netzero emissions, economywide, no later 

than 2050. See id., § 201. 

As a matter of transportation policy, 

FHWA considers the GHG measure 

essential not only to improve 

transportation sector performance and 

work toward achieving net-zero 

emissions economy-wide by 2050, but 

also to demonstrate Federal leadership 

in the assessment and disclosure of 

climate pollution from the 

transportation sector. Measuring and 

reporting complete, consistent, and 

timely information for on-road mobile 

source emissions is necessary so that all 

levels of government and the public can 

monitor changes in GHG emissions over 

time and make more informed decisions 

about the role of transportation 

investments and other strategies in 

achieving GHG reductions. 

After reviewing the comments 

provided on the NPRM, FHWA has 

decided to finalize the measure 

proposed in the NPRM, which is the 

percent change in tailpipe CO2

emissions on the NHS relative to the 

reference year. In choosing this 

measure, FHWA considered the 

measure’s sensitivity to strategies and 

policies of interest to transportation 

agencies, as well as its simplicity, ease 

of calculation, and reliance on data 

States already report to FHWA. In 

particular, the GHG measure will utilize 

fuel use estimates collected by FHWA 

very shortly after these data are 

finalized, providing a consistent and 

timely data source that is better suited 

for setting targets and monitoring trends 

in mobile source CO2 emissions on the 

NHS. As a new source of information, 

the measure has the potential to result 

in greater public awareness of GHG 

emissions trends, provide increased 

transparency and improved 

decisionmaking at all levels of 

government, and support better 

informed planning choices to reduce 

GHG emissions or inform tradeoffs 

among competing policy choices. In 

these capacities, the proposed GHG 

measure is integral to a whole-ofgovernment approach to address climate 

change and its effects. 

V. Summary of Comments 

The FHWA received 39,751 

submissions to the docket, including 

39,522 from 7 comment campaigns, in 

response to the NPRM, resulting in 236 

unique submissions containing 999 

individual comments. The submissions 

were signed by 105,484 separate groups/ 

individuals. The FHWA received 

comments from 98 advocacy and 

interest groups (including advocacy 

groups for active transportation and 

public transit, the natural environment, 

climate change action, clean air, and 

equity/environmental justice, among 

others), 31 State DOTs and the District 

of Columbia DOT, 33 State Attorneys 

General, one State Governor, 33 MPOs, 

two State environmental agencies, 10 

County/Local government agencies, as 

well as 57 U.S. Senators from 38 states 

and 56 U.S. Representatives from 25 

states. The FHWA also received 

comments from 24 industry associations 

(including the American Association of 

State Highway Transportation Officials 

(AASHTO), the Association of 

Metropolitan Planning Organizations 

(AMPO), and the American Public 

Transportation Association (APTA), as 

well as those representing highway and 

transportation users, roadway materials 

producers and roadway builders, and 

energy companies, among others). The 

FHWA also received comments from 

over 104,500 private citizens, the 

majority of which were submitted as 

part of comment campaigns. 

VI. Summary of Changes Made in This 

Final Rule 

This section provides a summary of 

the changes made in the rule compared 

to the NPRM. Section VII provides 

further discussion on the significant 

changes and the reasons they were 

made. 

A. Reference Year 

In the final rule, FHWA establishes 

that 2022 will be the reference year for 

this measure. The FHWA has changed 


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15 In this section, the citations to 23 CFR part 490 

refer to provisions as amended by this final rule. 

the definition in 23 CFR 490.505 and 

updated the calculation of the measure 

in 23 CFR 490.513(d) 15 accordingly. 

B. Net-Zero 

The definition of net-zero was 

removed from 23 CFR 490.101, and 23 

CFR 490.105(e)(10) was revised so 

targets must be declining for reducing 

tailpipe CO2 emissions on the NHS, but 

they are not required to demonstrate 

reductions toward net-zero targets. 

C. State DOT Targets & Reports 

In the final rule, FHWA establishes 

that State DOTs will establish initial 

targets for the GHG measure and report 

them no later than February 1, 2024. 23 

CFR 490.105(e)(1) and 490.107(d). The 

February 1, 2024, date required changes 

to several sections of existing regulation. 

Below is a general summary of the 

initial target establishment 

requirements, the reporting process for 

the State Initial GHG Report due 

February 1, 2024, and the significant 

progress determinations that will be 

completed after the State biennial 

reports submitted by October 1, 2024, 

and 2026. 

State DOT Target Establishment & 

Reporting Related to February 1, 2024 

The performance period for the GHG 

measure will begin January 1, 2022 and 

extend 4 years. 23 CFR 490.105(e)(1). By 

February 1, 2024, State DOTs will 

establish initial targets for the GHG 

measure. 23 CFR 490.105(e)(1)(ii). 

Initially, State DOTs will establish 4- 

year targets; 2-year targets will not be 

established. 23 CFR 490.105(e)(1), 

490.105(e)(4)(iii), and 490.105(e)(10)(i). 

For the initial 4-year target, the 

reference year will be used as the 

baseline. 23 CFR 490.105(e)(10)(i)(C). 

State DOTs will report their 4-year 

targets to FHWA in the State Initial GHG 

Report by no later than February 1, 

2024. 23 CFR 490.107(d). The State 

Initial GHG Report shall include the 

State DOT’s 4-year target for the GHG 

measure, the basis for the target, a 

discussion of how the target relates to 

other longer-term performance 

expectations, and the metric 

information for the reference year. 23 

CFR 490.107(d)(1). The metric reported 

will be calculated using the data 

specified in 23 CFR 490.107(d)(2). 

Because of the 2024 State Initial GHG 

Report, State DOTs will not include 

additional GHG information in the 2024 

Mid Performance Period Progress 

Report, due October 1, 2024. 23 CFR 

490.107(b)(2)(i). Biennial reporting 

related to the GHG measure will begin 

with the 2026 Full Performance Period 

Progress Report and the 2026 Baseline 

Performance Period Report. 23 CFR 

490.107(b)(1)(i), 490.107(b)(2)(i), and 

490.107(b)(3)(i). 

Significant Progress Determination on 

Initial Targets 

After the 2026 Full Performance 

Period Progress Report, FHWA will 

determine whether a State DOT has 

made significant progress toward the 

achievement of the 4-year target for the 

GHG measure. The FHWA will use the 

data described in 23 CFR 490.109(d)(1) 

when calculating the actual 

performance and making the significant 

progress determination. The 

performance for the reference year will 

be used as the baseline performance in 

the 2026 significant progress 

determination. 23 CFR 

490.105(e)(10)(i)(C). 

The significant progress 

determination requirements related to 

the GHG measure will be phased in as 

described in 23 CFR 490.109(e)(6). The 

FHWA will not determine significant 

progress toward 2-year targets for this 

measure after the 2024 Mid Performance 

Period Progress Report since 2-year 

targets will not have been established, 

and information related to the GHG 

measure will not have been included in 

the 2024 Mid Performance Period 

Progress Report. Therefore, in 2024, 

FHWA will classify the assessment of 

progress toward the achievement of 2- 

year targets for the GHG measure as 

‘‘progress not determined’’ and they will 

not be subject to any additional 

reporting requirements. 23 CFR 

490.109(e)(6). 

Biennial Reporting 

FHWA revised proposed changes to 

section 490.107(b)(1), (b)(2), and (b)(3) 

to require biennial reporting related to 

the GHG measure to begin with the 2026 

Full Performance Period Progress 

Report. And, consistent with 23 CFR 

490.105(e)(5), the State DOT’s 2- and 4- 

year targets will be reported in the 2026 

Baseline Performance Period Report. 

See the discussion under ‘‘State DOT 

Data for the GHG Metric Calculation’’ 

for more information on the State DOT 

biennial reporting associated with the 

GHG metric. 

D. State DOT Data for the GHG Metric 

Calculation 

State DOTs are required to calculate 

and report both the GHG measure and 

the GHG metric, the latter of which is 

defined as the calculation of tailpipe 

CO2 emissions on the NHS for a given 

year computed in million metric tons 

(mmt) and round to the nearest 

hundredth. 23 CFR 490.511(c). State 

DOTs use the metric to calculate the 

measure, which is the percent change 

between the current year and the 

reference year. To calculate the metric, 

State DOTs require several data inputs, 

and they are defined in 23 CFR 

490.511(c). To ensure consistent 

calculation of the metric, the data 

requirements are defined in 23 CFR 

490.509. To provide transparency and 

consistency, FHWA defines the specific 

data sources it will use when it 

calculates the metric and measure for 

the significant progress determination in 

23 CFR 490.109(d). 

In this final rule, proposed 23 CFR 

490.509(h) was revised so that the State 

DOT will be able to use their best 

available vehicle miles traveled (VMT) 

data when establishing targets, reporting 

baseline and actual performance and 

discussing progress. This change 

addresses a comment that stated VMT 

data might not be finalized within the 

Highway Performance Monitoring 

System (HPMS) for all States by August 

15th. The VMT data used by State DOTs 

will represent the prior calendar year 

and should be consistent with the final 

VMT data submitted by the State DOT 

to HPMS, to the maximum extent 

practicable. 23 CFR 490.509(h). The 

HPMS data as of November 30, 2023, 

will be used to calculate the metric for 

the reference year. 23 CFR 490.509(h). 

Because FHWA will not necessarily 

have the VMT data the State DOT used, 

the biennial reporting requirements in 

proposed 23 CFR 490.107(b)(1)(ii)(H), 

(b)(2)(ii)(J), and (b)(3)(ii)(I) were revised 

in this final rule to require the State 

DOT to report the GHG metric value 

they calculated, the individual values 

used to calculate the GHG metric, and 

a description of the data source(s) used 

for the VMT information. This final rule 

removes the proposed requirement for 

the State DOT to report CO2 emissions 

on all public roads as part of reporting 

the metric information since the values 

used to calculate the GHG metric can be 

used to calculate the all-roads value. A 

corresponding change was made to 23 

CFR 490.511(f)(2) to align with the 

metric reporting requirements in the 

State DOT’s biennial reports. 

Section 490.109(d)(1)(vi) and 

(d)(1)(vii) were revised to require the 

significant progress determination to 

calculate the GHG metric and measure 

for the baseline and actual performance 

using the HPMS data available on 

November 30th of the year the 

significant progress determination is 

made. For the reference year, FHWA 

will use the HPMS data as of November 

30, 2023. 23 CFR 490.109(d)(1)(vi)–(vii). 


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Section 490.109(d)(1)(viii) was added to 

specify that the significant progress 

determination will use the CO2 factors 

specified in section 490.509(f). 

In the final rule, FHWA has added the 

requirement for State DOTs to submit 

the State Initial GHG Report, as 

described in VI.C. For that report, the 

State DOT will use the data specified in 

23 CFR 490.107(d)(2) to calculate the 

metric. 

Please note, 23 CFR 490.511 includes 

different requirements for State DOTs 

and MPOs when calculating the metric 

used to calculate the GHG measure. The 

State DOT’s method is defined in 23 

CFR 490.511(c) and the method will be 

the same for all states. The MPOs are 

granted flexibility in how they calculate 

the metric, as described in 23 CFR 

490.511(d). This section only discusses 

the changes made in the final rule in 

relation to the data the State DOT will 

use when calculating the GHG metric. 

The changes made related to the MPO 

metric requirements are summarized 

below in Section VI.E. 

E. Initial MPO Targets & Reports 

The final rule, in 23 CFR 490.511(d), 

retains the additional flexibility granted 

to MPOs in how they calculate the GHG 

metric. The final rule removes the 

proposed requirement for MPOs and 

State DOTs to mutually agree upon a 

method for calculating the metric, and 

instead requires MPOs to report a 

description of their metric calculation 

method(s). When that method is not one 

of the ones specified in 23 CFR 

490.511(d), the MPO will include 

information demonstrating the 

method(s) has valid and useful results 

for measuring transportation related 

CO2. 23 CFR 490.107(c)(2)(ii). While 

MPOs are not required to select a metric 

calculation in coordination with their 

State DOT, they are encouraged to 

coordinate with the State DOT on the 

data used to the maximum extent 

practicable. 

The final rule removes the proposed 

requirement for the MPO to report CO2

emissions on all public roads. 

F. Severability 

The final rule adds a new section 23 

CFR 490.515 that contains a severability 

clause applicable to the amendments to 

23 CFR part 490 made by this final rule. 

FHWA believes that the amendments to 

part 490, including establishment and 

calculation of the GHG performance 

measure and declining targets, are 

capable of operating independently of 

one another. If one or more aspects of 

the GHG measure are determined to be 

invalid, the remaining provisions 

should remain unaffected and in force. 

G. Other Changes 

The final rule contains several 

technical changes from the proposed 

rule. These changes are described in 

Table 1. 

TABLE 1—TECHNICAL EDITS TO THE FINAL RULE

CFR section Description of change 

23 CFR 490.101 .......................................................... Corrects the abbreviated name for the Fuels and Financial Analysis System—Highways 

(Fuels & FASH) database. Corresponding changes were made throughout the rule. 

23 CFR 490.105(c)(5) .................................................. Clarifies language describing the GHG measure. 

23 CFR 490.105(d)(4) ................................................. Clarifies the applicability of the joint targets. 

23 CFR 490.105(e)(4)(i)(C) ......................................... Moves information about the performance period from the location proposed in the 

NPRM to here to align with references to the performance period throughout 23 CFR 

part 490. 

23 CFR 490.105(f)(10) ................................................ Clarifies rule language. 

23 CFR 490.107(a)(1) ................................................. Updates language to capture the edition of Section 490.107(d) in the final rule. 

23 CFR 490.107(c)(2) .................................................. Revises the structure and organization of the paragraph to improve readability. 

23 CFR 490.109(d)(1)(v) and (d)(1)(vii) ...................... Clarifies that the reference year data will not be updated each time the data for the previous year is compiled. 

23 CFR 490.109(d)(1)(viii) ........................................... Clarifies that the CO2 factor specified in Section 490.509(f) will be used. 

23 CFR 490.109(e)(4)(vi) ............................................ Substitutes ‘‘accepted’’ instead of ‘‘cleared.’’ 

23 CFR 490.109(e)(4)(vii) ............................................ Adds the HPMS data extraction date. Listing this date is consistent with Section 

490.109(e)(4)(vi) and does not change the intended approach. 

23 CFR 490.109(f)(1)(v) .............................................. Revises rule language to use consistent terminology. 

23 CFR 490.505 .......................................................... Clarifies that approximately 97 percent of on-road tailpipe GHG emissions are CO2. 

23 CFR 490.509(f) ....................................................... Clarifies rule language. 

23 CFR 490.509(f)(2) .................................................. Revises rule language to use consistent terminology. 

VII. Section-by-Section Discussion 

This final rule was developed in 

response to comments received on the 

NPRM. Section VII summarizes major 

comments received and any substantive 

changes made to each section in this 

final rule. Editorial or minor changes in 

language are not addressed in this 

section. For sections where no 

substantive changes are discussed, the 

substantive proposal from the NPRM 

has been adopted in this final rule. 

Questions Posed in the NPRM 

The FHWA requested comment on a 

number of items in the NPRM. The 

FHWA invited comments on the 

following: 

• How should FHWA structure 

improving targets for the GHG measure, 

as well as the associated reporting and 

significant progress requirements, and 

how could these targets align with and 

inform existing transportation planning 

and programming processes? 

• Besides requiring targets that 

reduce GHGs over time, are there any 

specific ways the proposed GHG 

measure could be implemented within 

the framework of TPM to better support 

emissions reductions to achieve 

national policies for reductions in total 

U.S. GHG emissions? 

• What changes to the proposed 

measure or its implementation in TPM 

could better the impact of transportation 

decisions on CO2 emissions, and enable 

States to achieve tailpipe CO2 emissions 

reductions necessary to achieve national 

targets? 

• In instances that MPOs are 

establishing a joint UZA target, should 

FHWA require that the individual MPOwide targets be the same as the jointly 

established UZA target? 

• Should MPOs that establish a joint 

UZA target be exempt from establishing 

individual MPO-level targets, and 

instead only be required to adopt and 

support the joint UZA target? 


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• In cases where there are multiple 

MPOs with boundaries that overlap any 

portion of an UZA, and that UZA 

contains NHS mileage, should each of 

those MPOs establish their own targets, 

with no requirement for a joint UZA 

target? 

• Are there other approaches to target 

setting in UZAs served by multiple 

MPOs that would better help MPOs 

reach net-zero emissions? 

The FHWA also requested comment 

on assumptions that were developed as 

part of the RIA, as well as information 

on other benefits or costs that would 

result from implementation of the rule, 

as follows: 

• The RIA includes assumptions 

regarding the applicability, level of 

effort and frequency of activities under 

proposed 23 CFR 490.105, 490.107, 

490.109, 490.511, and 490.513. Are 

these assumptions reasonable? Are there 

circumstances that may result in greater 

or lesser burden relative to the RIA 

assumptions? 

• Would the staff time spent 

implementing this measure reduce the 

burden of carrying out other aspects of 

State DOT and MPO missions, such as 

forecasting fuel tax revenues? If so, 

please describe and provide any 

information on programs that would 

benefit from this measure and estimate 

any costs that would be reduced by 

implementing this measure. 

• Would the proposed rule result in 

economies of scale or other efficiencies, 

such as the development of consulting 

services or specialized tools that would 

lower the cost of implementation? If so, 

please describe such efficiencies and 

provide any information on potential 

cost savings. 

• Would the proposed rule result in 

the qualitative benefits identified in the 

RIA, including more informed 

decisionmaking, greater accountability, 

and progress on National Transportation 

Goals identified in MAP–21? Would the 

proposed rule result in other benefits or 

costs? Would the proposed measure 

change transportation investment 

decisions and if so, in what ways? For 

State DOTs and MPOs that have already 

implemented their own GHG 

measure(s), FHWA welcomes 

information on the impact and 

effectiveness of their GHG emissions 

measure(s). 

The FHWA received many comments 

on these items, and thanks commenters 

for their useful input. The FHWA 

considered these comments in 

developing this final rule and responds 

to significant adverse comments related 

to these questions and other comments 

in the following section. 

General Comments 

FHWA’s Legal Justification for the GHG 

Measure 

Comment: A large number of 

commenters addressed FHWA’s legal 

authority for this measure. Many 

commenters affirmed FHWA’s legal 

authority to establish the measure under 

23 U.S.C. 150. These commenters note 

that under MAP–21, FHWA is required 

to establish ‘‘performance’’ measures to 

assess performance of the Interstate and 

non-Interstate NHS, see 23 U.S.C. 

150(c)(3)(A)(ii)(IV)–(V), and FHWA’s 

interpretation of ‘‘performance’’ to 

include environmental performance is 

consistent with the express statutory 

goals of the Federal-aid highway 

program, which include environmental 

sustainability under 23 U.S.C. 150(b)(6). 

In contrast, many commenters disputed 

FHWA’s legal authority to establish the 

proposed measure. Several commenters 

stated that, contrary to FHWA’s 

statements, this action will in fact set 

performance targets for the States and 

MPOs by requiring State DOTs and 

MPOs with NHS mileage to establish 

declining CO2 emissions targets that 

align with the Administration’s net-zero 

targets, while FHWA’s authority is 

limited to establishing measures for 

States to use to measure performance. 

These commenters largely characterized 

the measure as a requirement that State 

DOTs and MPOs reduce GHG emissions. 

Notably, a large number of commenters 

stated that FHWA does not have the 

authority to regulate GHGs, as Congress 

has not assigned such authority to the 

Agency, and such authority would be 

more appropriately assigned to the 

Environmental Protection Agency 

(EPA). Similarly, several commenters 

claim that FHWA should not focus on 

regulating GHGs, and instead should 

work with the EPA to reduce CO2

emissions. A commenter also asserted 

that the proposed rule inappropriately 

seeks to rebalance Congress’s funding 

priorities. 

Response: As discussed in Section III 

of this preamble, FHWA affirms that the 

Agency has the requisite statutory 

authority to adopt the GHG measure. A 

significant number of commenters 

questioning FHWA’s authority to adopt 

the GHG measure have mischaracterized 

this rulemaking. The FHWA is not 

regulating GHG emissions via this 

measure, is not mandating any 

reductions, is not forcing States to select 

specific projects, and is not asserting 

authority through this rulemaking over 

GHG emissions from the transportation 

sector. Rather, this measure is designed 

to provide State DOTs and MPOs with 

the information necessary to make 

informed transportation decisions. 

Although FHWA is requiring that State 

DOTs and MPOs set targets—consistent 

with the rest of the TPM program— 

FHWA is not mandating specific targets 

and is not setting those targets for State 

DOTs and MPOs. The FHWA is also 

neither approving nor disapproving 

individual targets. Thus, FHWA is 

applying the Agency’s authority under 

23 U.S.C. 150(c) and is not extending 

beyond that authority. However, upon 

examining comments and the preamble 

to the NPRM, FHWA recognizes that the 

language regarding aligning with netzero targets could be clarified to better 

indicate FHWA’s intent. Therefore, 

FHWA is clarifying that the Agency is 

not requiring that declining targets align 

to the Administration’s net-zero targets 

as outlined in the national policy 

established under E.O. 14008. Rather, 

FHWA recommends that State DOTs 

and MPOs consider the 

Administration’s targets when setting 

their declining targets. 

Comment: Several commenters 

asserted that FHWA has not sufficiently 

justified changing its approach. 

Commenters assert that FHWA is merely 

reinstating a previous action and is 

changing the Agency’s position based 

on policy preferences provided in E.O.s 

rather than technical expertise, such as 

by stating that the emissions measure 

would result in substantial benefits, 

while also stating that the benefits are 

not easily quantifiable. Several 

commenters assert that FHWA has 

failed to adequately justify this measure 

by relying on general reports on CO2

emissions and climate change harms. In 

addition, commenters asserted that 

FHWA may not merely reexamine 

previous assertions in rulemakings and 

must instead provide technical analysis 

in support of the rulemaking. 

Commenters asserted that FHWA failed 

to consider whether declining targets 

will interfere with other statutory 

schemes by encouraging States to adopt 

electric vehicles to reduce GHGs while 

not focusing on reducing criteria 

pollutants under CMAQ. In addition, 

commenters assert FHWA failed to 

consider whether the rulemaking will 

disadvantage States with a range of 

different conditions, such as extreme 

climates and freight traffic. 

Response: The FHWA disagrees with 

these commenters’ assertions. The 

FHWA has reexamined the rationale for 

the 2018 repeal and has determined that 

FHWA has the authority to adopt this 

GHG measure and has provided updated 

analyses identifying why the GHG 

measure is appropriate and reasonable 

in light of FHWA’s statutory mandate to 

adopt performance measures. The 


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FHWA’s legal authority, technical 

justification, and reasoned analysis for 

this measure are detailed in the NPRM 

and in Sections III. and IV. of this 

preamble. FHWA has acknowledged 

that it is changing the position the 

Agency put forward in the 2018 repeal 

final rule and provided detailed legal, 

technical, and policy reasons for doing 

so. Commenters’ assertion that FHWA 

must do more to justify changing its 

approach has no basis in law. See FCC 

v. Fox Television Stations, Inc., 556 U.S. 

502, 515–16 (2009). The FHWA also 

disagrees with the commenters’ 

assertions about FHWA’s failure to 

consider whether declining targets will 

disadvantage States or cause any 

potential harm through the adoption of 

electric vehicles. These comments are 

predicated on a misconception that 

FHWA is requiring any specific 

behavior by State DOTs and MPOs to 

reduce GHG emissions. The FHWA is 

not mandating reductions, and this 

rulemaking does not require or purport 

to require State DOTs or MPOs to select 

GHG reducing projects. Rather, State 

DOTs and MPOs will determine 

appropriate declining targets based on 

the conditions relevant to the State 

DOTs and MPOs. The FHWA expects— 

but does not require—that this measure 

will help State DOTs and MPOs select 

projects that will reduce GHG 

emissions. 

Comment: Several commenters assert 

that FHWA lacks the authority to adopt 

the GHG measure based on the recent 

decision of West Virginia v. EPA, 142 S. 

Ct. 2587 (2022), related to the Major 

Questions Doctrine. 

Response: The FHWA disagrees with 

the assertion that this measure is 

inconsistent with recent Supreme Court 

precedent. This rulemaking is not an 

extraordinary case. It does not involve a 

novel interpretation of longstanding 

FHWA authority, nor does it represent 

an unheralded assertion of regulatory 

authority with the significant economic 

and political impacts that implicate a 

major questions case under West 

Virginia v. EPA. The FHWA’s approach 

is in line with FHWA’s prior 

requirements for performance measures 

related to the national goals in 23 U.S.C. 

150(b). This rulemaking also does not 

require State DOTs and MPOs to change 

their approach to selecting projects. 

Rather, the measure will provide them 

with additional information to inform 

their decisionmaking. As described in 

the RIA, this rulemaking has minimal 

costs for State DOTs and MPOs. 

Additionally, there is clear 

congressional authorization to establish 

performance measures under 23 U.S.C. 

150(c). Contrary to inaccurate 

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 


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does not assert authority over GHG 

emissions. However, FHWA disagrees 

with the commenters regarding 

congressional intent as related to the 

measurement of GHGs under 23 U.S.C. 

150(c). Congress did not provide exact 

parameters for performance measures 

under 23 U.S.C. 150(c), and it did not 

clarify, let alone impose restrictions on, 

these parameters in BIL. Rather, FHWA 

must—based on the Agency’s 

expertise—determine how to structure 

performance measures. As described in 

this preamble and in the preamble to the 

2022 NPRM, FHWA has determined that 

measuring environmental performance 

is vital to assessing performance on the 

Interstate and non-Interstate NHS. 

In addition, FHWA disagrees with the 

commenters’ assertion that Congress’s 

designation of mandatory performance 

measures for some programs but not 

others prohibits FHWA from exercising 

Agency expertise to define performance 

of the Interstate and non-Interstate NHS. 

Although Congress did not include a 

specific performance measure for GHGrelated programs in enacting 23 U.S.C. 

150, Congress also decided not to define 

performance under 23 U.S.C. 

150(c)(3)(A)(ii)(IV)–(V) and, in the 

decade since enactment of MAP–21, 

Congress has not qualified FHWA’s 

authority to define performance on the 

NHS, even after FHWA promulgated a 

GHG measure in the PM3 rule. For the 

same reasons, FHWA also disagrees 

with the commenters’ statements 

regarding legislative history of BIL and 

IRA, and in particular, the significance 

that can be attributed to GHG and 

environmental performance-related 

language not being included in the 

enacted legislation. By itself, 

congressional inaction on a subject is an 

unreliable indicator of legislative intent 

because ‘‘several equally tenable 

inferences may be drawn from such 

inaction, including the inference that 

the existing legislation already 

incorporated the offered change.’’ 

Pension Benefit Guaranty Corp. v. LTV 

Corp., 496 U.S. 633, 650 (1990) (quoting 

United States v. Wise, 370 U.S. 405, 411 

(1962)) (internal quotation marks 

omitted). In this instance, there is no 

contemporaneous legislative record to 

explain why language relating to 

measuring GHG emissions with respect 

to performance of the NHS was not 

included in BIL. Moreover, BIL was 

passed long after the PM3 rulemaking 

was proposed and finalized. If anything, 

the fact that Congress was aware of 

FHWA’s prior action to promulgate a 

GHG performance measure and did not 

use the opportunity in BIL to amend 

existing statutory language on 

performance measures or the definition 

of performance on the NHS more likely 

indicates that Congress intended to 

leave such determinations to Agency 

expertise to be handled via regulatory 

authority. See id. Therefore, FHWA 

rejects the commenters’ interpretation of 

congressional intent to restrict FHWA’s 

authority to establish measures to assess 

performance of the NHS. 

Comment: Commenters disagreed 

with FHWA’s approach to supporting 

resilience through this measure. 

Commenters assert that both the NHPP 

under 23 U.S.C. 119 and BIL are focused 

on the physical condition of the 

highway system, and FHWA must focus 

on addressing physical issues with the 

roads, rather than CO2 emissions. 

Commenters assert that, likewise, 

resilience deals with impacts on the 

transportation system, rather than 

impacts from emissions from the 

transportation system. Commenters also 

contend that CO2 regulation is the 

purview of the EPA, not FHWA. 

Response: The FHWA disagrees with 

the commenters’ limited view of 23 

U.S.C. 119’s substantial focus on 

resilience and their characterization of 

FHWA’s action to establish the GHG 

measure. As discussed in section III 

above, the NHPP is not solely focused 

on the physical performance of 

highways. For example, the 

requirements for State asset 

management plans include strategies 

supporting the progress toward the 

achievement of all national goals 

identified in 23 U.S.C. 150(b), including 

the goal to enhance the performance of 

the transportation system while 

protecting and enhancing the natural 

environment at 23 U.S.C. 150(b)(6). See 

23 U.S.C. 119(e)(2). In addition, the BIL 

amended the requirements for asset 

management plans’ lifecycle cost and 

risk management analyses so that they 

now must specifically take into 

consideration extreme weather and 

resilience. See 23 U.S.C. 119(e)(4)(D). In 

explicitly stating that both the purpose 

of the NHPP under 23 U.S.C. 119 is to 

increase the resiliency of the NHS and 

that environmental sustainability is an 

express national goal of the Federal-aid 

highway program under 23 U.S.C. 

150(b), Congress clearly spoke to the 

importance of addressing environmental 

impacts related to the transportation 

system. Assessing environmental 

performance will support State and 

MPO efforts to increase the resiliency of 

the NHS to mitigate the cost of damages 

from sea level rise, extreme weather 

events, flooding, wildfires, or other 

natural disasters. By addressing the 

performance of the transportation 

system related to the largest source of 

U.S. CO2 emissions, FHWA is 

implementing Congress’s express 

direction regarding NHPP goals. 

Measuring environmental performance 

though the GHG performance measure 

will assist States to consider CO2

emissions from transportation in the 

performance management framework 

and help frame responses to the growing 

climate crisis. Reducing GHG emissions 

that are causing increases in 

temperature, sea level, extreme weather 

events, flooding, wildfires, and other 

natural disasters should then decrease 

the severity and impact of those 

conditions in the future. The FHWA has 

applied its expertise related to the 

transportation system and found that 

mitigating the cost of damage from 

natural disasters also requires helping 

State DOTs and MPOs address the cause 

of those disasters. However, and as 

discussed above, FHWA is not 

regulating CO2 emissions or otherwise 

mandating specific reductions. 

Comment: One commenter asserted 

that FHWA’s action is a broad attempt 

to regulate GHGs, and Congress must 

speak more clearly before FHWA may 

assert it has authority to mandate that 

all of the States and Puerto Rico 

decrease on-road CO2 emissions in 

furtherance of the Administration’s 

emissions goals. 

Response: The FHWA is not 

mandating that States or MPOs decrease 

emissions or compelling States to 

undertake projects that reduce GHGs. 

Consistent with the rest of the TPM 

program, FHWA is setting forth a 

program to measure performance on the 

Interstate and non-Interstate NHS, as 

directed by Congress. 

Comment: One commenter stated that 

FHWA should develop an 

Environmental Impact Statement (EIS) 

for this action because of the rule’s 

wide-ranging potential impacts. 

Response: The FHWA disagrees that 

an EIS is appropriate for this 

rulemaking. The FHWA has analyzed 

this rule pursuant to the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321 et seq.) and has 

determined that it is categorically 

excluded under 23 CFR 771.117(c)(20), 

which applies to the promulgation of 

rules, regulations, and directives. As 

discussed further in Section VIII of this 

preamble, FHWA does not anticipate 

any adverse environmental impacts 

from this rule, the purpose of which is 

to inform decisionmaking about the 

transportation sector’s contribution to 

GHG emissions, and thereby contribute 

to environmental sustainability. 

Therefore, a categorical exclusion is 

appropriate for this rulemaking and no 

further NEPA approvals are required. 


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Comments on the Appropriateness of 

the Proposed Measure 

Comment: A large number of 

commenters questioned the 

appropriateness of the proposed 

measure to assess GHG emissions. A 

small number of these commenters 

asserted the proposed measure is not 

appropriate for rural States since rural 

residents need to drive further to access 

essential goods and services and 

alternative transportation modes are 

limited. In addition, several other 

commenters asserted the proposed 

measure does not account for exogenous 

factors beyond the control of State DOTs 

and MPOs, including population 

growth, economic growth, goods 

movement, and State and local policies, 

among others. Relatedly, many 

commenters recommended using a percapita measure in addition to or instead 

of a measure of total emissions. A 

smaller number of commenters 

recommended using a measure of VMT 

to demonstrate the impact of 

transportation decisions on changes in 

travel behavior. Some commenters 

stated that the measure places an 

unequal burden on rural States and 

States with growing populations. 

Other commenters addressed 

technical considerations underlying the 

suitability of the proposed measure. A 

couple of commenters indicated the 

measure does not account for 

fluctuations to NHS mileage resulting 

from roadway reclassifications, and one 

commenter asserted the measure does 

not account for regional variations in 

vehicle fleet efficiency or roadway 

speeds. Several commenters 

recommended the proposed measure 

consider lifecycle processes, such as 

electricity used by electric vehicles and 

embodied carbon associated with 

vehicle manufacture and transportation 

infrastructure. One commenter 

recommended that the measure account 

for excess fuel consumption associated 

with poor pavement condition. 

Response: The FHWA has retained 

the GHG performance measure proposed 

in the NPRM, the percent change in 

tailpipe CO2 emissions on the NHS 

compared to the reference year, because 

of its simplicity, ease of calculation, and 

reliance on data States already report to 

FHWA. The FHWA acknowledges 

commenters’ observations that the GHG 

footprint of on-road transportation 

extends beyond tailpipe CO2 emissions 

and includes lifecycle processes 

supporting to generation of electricity 

used by EVs, the production of 

transportation fuels, the manufacture of 

vehicles, and the construction and 

maintenance of transportation 

infrastructure. However, FHWA believes 

that addressing these factors in a GHG 

measure would lead to more 

complicated and potentially less reliable 

calculations. 

In addition, FHWA believes that the 

measure sufficiently accounts for 

several of the factors cited by 

commenters, such as the effect of 

roadway speed, changes vehicle fleet 

efficiency, and the effect of pavement 

condition on fuel efficiency, all of 

which are represented through Statereported fuel sales that are used to 

calculate the measure. The FHWA also 

believes that a GHG measure is 

preferable to a VMT-only measure, 

which would serve an indirect proxy for 

GHG emissions that would not account 

for the benefits of highway operations 

and pavement strategies implemented 

by State DOTs, electrification of the 

vehicle fleet, or other improvements in 

vehicle efficiency. The GHG measure 

FHWA is establishing also supports 

tracking of progress toward GHG 

reduction goals. This would not be the 

case with a measure that normalizes the 

effect of population or economic growth 

or excludes truck CO2 emissions. The 

FHWA notes that regulation does not 

prevent State DOTs and MPOs from 

using additional performance measures 

at the local level. 

The FHWA rejects the concept that 

this measure places an unequal burden 

on rural States and States with rapidly 

growing populations, as States with 

various conditions can implement this 

measure to help evaluate performance. 

The FHWA also reiterates that this 

rulemaking does not set any specific 

targets or require any GHG reductions. 

The commenters’ assertions about 

disadvantaging rural areas falsely 

assume that this measure mandates 

GHG reductions and penalizes States 

and MPOs that fail to achieve 

reductions. Neither the proposal, nor 

the final rule, do any such thing. 

Therefore, FHWA disagrees with the 

commenters’ assertions about unequal 

burden on rural States and States with 

rapidly growing populations. 

Comments on Transportation Agencies’ 

Influence on GHG Emissions 

Comment: Several commenters 

addressed State DOTs’ and MPOs’ 

ability to reduce GHG emissions year 

over year through planning and 

programming of transportation projects. 

Several commenters asserted State 

DOTs and MPOs have limited ability to 

materially reduce GHG emissions. These 

commenters noted that performance 

against the GHG measure is affected by 

many different factors outside the 

control of State DOTs and MPOs, 

including a State government’s policies, 

population and economic growth, and 

fuel prices, among others. They also 

assert that transportation planning and 

programming is a multiyear process and 

State DOTs and MPOs cannot have a 

meaningful impact on GHG emission 

reductions year over year. 

In contrast, a large number of 

commenters asserted that transportation 

agency decisions influence GHG 

emissions, and that a GHG measure is 

important for evaluating the impact of 

these decisions. Many commenters 

asserted that establishing a nationwide, 

uniform performance measure would 

ensure consistency in tracking progress 

and help State DOTs, MPOs, and FHWA 

to identify the most effective programs, 

strategies, and projects for carbon 

reduction. The commenters also 

asserted that the proposed performance 

measure would inform State DOT and 

MPO efforts to carry out performancebased planning and project selection, 

consistent with statutory requirements. 

Several commenters asserted that the 

decisions that State DOTs make in terms 

of designing infrastructure and 

constructing the built environment have 

a profound influence on travel behavior. 

A large number of comment campaign 

letters also asserted that a GHG measure 

is important for understanding the longterm impact of transportation 

investments on GHG emissions and to 

better connect transportation decisions 

with climate goals. 

Response: Upon review of the 

comments, FHWA has retained the 

measure as proposed. The FHWA agrees 

with commenters asserting that a GHG 

measure is useful for evaluating the 

impact of transportation investments 

and other policies on GHG emissions. 

The FHWA also agrees that 

transportation investments have a 

meaningful impact on travel behavior, 

and that transportation agencies’ 

policies and programs involving vehicle 

electrification, highway operations, and 

roadway maintenance practices provide 

further opportunities to reduce GHG 

emissions in absence of changes to 

travel behavior. The BIL provides more 

than $27 billion in Federal funding to 

help State DOTs and MPOs achieve 

their GHG reduction targets. This total 

includes $6.4 billion in formula funding 

to State DOTs and local governments 

through the CRP to support a range of 

projects designed to reduce on-road CO2

emissions; $5 billion to State DOTs 

through the National Electric Vehicle 

Infrastructure Formula Program to build 

out a national electric vehicle charging 

network; $2.5 billion in competitive 

funding to State DOTs and local 

governments to deploy electric vehicle 


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16See Biden-Harris Administration Takes Step 

Forward to Combat Climate Change, Announces 

Proposed Transportation Greenhouse Gas Emission 

Reduction Framework, available at https://

highways.dot.gov/newsroom/biden-harrisadministration-takes-step-forward-combat-climatechange-announces-proposed. 

and alternative fuel infrastructure, $7.2 

billion for the Transportation 

Alternatives Set-Aside that State DOTs 

and local governments can use to carry 

out pedestrian and bicycle 

infrastructure projects, and more than 

$5 billion to ensure the nation’s transit 

systems are tackling the climate crisis.16

In addition, transportation agencies 

have for decades been able to use 

Federal-aid Highway Program funds to 

support projects that reduce GHG 

emissions, including transit 

improvements, congestion reduction 

and traffic flow improvements, freight 

and intermodal initiatives, idle 

reduction technologies, travel demand 

management, carsharing, carpooling and 

vanpooling, and bike and pedestrian 

facilities. Given the range of options 

available to transportation agencies to 

reduce GHG emissions and the 

significant financial resources provided 

by BIL, FHWA rejects the premise that 

transportation agencies have limited 

capacity to influence GHG emissions. 

The FHWA also believes that it is 

important for the measure to address 

total tailpipe CO2 emissions on the NHS 

rather than normalizing this value by 

population or other factors, since 

atmospheric CO2 concentrations are 

ultimately influenced by the total 

quantity of CO2 emissions produced. 

The FHWA believes a measure 

addressing total emissions supports a 

whole-of-government approach to 

addressing climate change by 

implementing a consistent measure of 

CO2 emissions on the NHS at the 

National, State, and metropolitan levels. 

The FHWA is requiring State DOTs and 

MPOs to establish declining GHG 

emissions targets. Contrary to the 

commenters’ assertions FHWA is not 

requiring States to set specific declining 

target levels or achieve actual 

reductions in GHG emissions. State 

DOTs and MPOs have flexibility to set 

targets that are appropriate for their 

communities and that work for their 

respective climate change and other 

policy priorities, as long as the targets 

are declining. 

Comments on Incentives and 

Disincentives 

Comment: A large number of 

commenters addressed the creation of 

incentives or disincentives to strengthen 

the proposed GHG measure. The vast 

majority of these comments stated that 

the proposed rule would be 

strengthened by including clear and 

specific incentives for those States and 

regions that meet their targets, such as 

providing extra points in competitive 

grant programs, favorable local match 

requirements, or expediated project/ 

application review processes. Other 

commenters recommended restricting 

use of Federal transportation funds to 

projects that reduce GHG emissions in 

States and regions that did not meet 

their targets. A couple of commenters 

opposed creation of incentives or 

disincentives. 

Response: Under 23 U.S.C. 145, the 

Federal-aid highway program is a 

federally assisted, State-administered 

program; FHWA does not determine 

which eligible projects, as selected by 

States, shall be financed. The FHWA 

cannot broadly limit the use of 

transportation funds in the manner 

recommended by commenters, and 

FHWA does not have the authority to 

restrict transportation funding for States 

that fail to meet their targets. However, 

BIL includes new programs that will 

help States and MPOs fund projects that 

reduce GHG emissions, which in turn, 

could assist them in meeting the targets 

that they set. This topic is further 

discussed in Section III this preamble. 

States and MPOs can additionally 

leverage their own programs to reduce 

GHG emissions by accounting for 

expected GHG impacts in the analysis 

and selection of transportation projects. 

Comments on Penalties 

Comment: Several commenters 

addressed the possibility of penalties 

being associated with the proposed 

measure. A few of these commenters 

sought clarification on whether FHWA 

intends to apply a penalty (including 

penalties associated with failure to 

comply with Federal requirements 

under 23 CFR 1.36). Other commenters 

requested the final rule include a 

section specifying that no penalties 

would be applied for not meeting a 

target. Other commenters asserted that 

FHWA is in fact providing a penalty for 

failing to reduce GHGs based on the 

Agency’s authority under 23 CFR 1.36. 

Response: There are no specific 

penalties for failing to achieve GHG 

targets. Rather, consistent with existing 

NHPP performance measures, if 

significant progress is not made for the 

target established for the GHG measure 

in 23 CFR 490.507(b), the State DOT 

must document the actions it will take 

to achieve that target no later than in its 

next biennial report, but is encouraged 

to do so sooner. Significant progress 

toward achieving NHPP performance 

targets is further described in 23 CFR 

490.109. The FHWA did not propose 

specific penalties for failure to achieve 

performance targets, and is not 

finalizing any such penalty. Failure to 

achieve significant progress for this 

measure, as defined in 23 CFR 490.109, 

will also not trigger any penalties. State 

DOTs and MPOs that set a declining 

target but fail to achieve their targets can 

satisfy regulatory requirements by 

documenting the actions they will take 

to achieve that target in their next 

biennial report. The FHWA does not set 

or approve the State DOT’s or MPO’s 

targets. 

Comments on Exemptions 

Comment: Several commenters 

recommended various entities be 

exempt from the proposed measure for 

various reasons. The majority of these 

commenters asserted that rural States 

have limited options to reduce 

transportation GHG emissions through 

transit and other strategies that reduce 

VMT and should accordingly be 

exempted from the measure. A few 

commenters recommended that States 

and MPOs in attainment with the 

National Ambient Air Quality Standards 

be exempted from the GHG measure. 

One commenter asserted that the GHG 

measure does not recognize that rural 

States produce fewer GHG emissions 

than urban areas. 

Response: The FHWA considered the 

comments suggesting certain entities be 

exempt from the GHG measure and 

declines to do so. Greenhouse gas 

emissions are produced on all NHS 

facilities. Once released, CO2 and other 

GHGs take many years to leave the 

atmosphere, resulting in increasing 

global atmospheric concentrations of 

CO2 emissions regardless of where they 

are produced. Urban and rural areas 

both contribute to increased carbon 

pollution in the atmosphere, and FHWA 

believes this rule will provide both with 

the tools to reduce carbon pollution. 

This is different from criteria pollutants, 

which last no more than weeks in the 

atmosphere and only impact local or 

regional air quality. 

The FHWA also rejects commenters’ 

suggestion that rural States have limited 

options to reduce transportation GHG 

emissions. If these States determine that 

transit and other measures to reduce 

VMT are not effective means of 

influencing GHG emissions, they have a 

wide range of alternative strategies and 

funding programs available. This 

includes both formula funding and 

discretionary grants to deploy electric 

vehicle charging infrastructure and 

thereby increase EV adoption, funding 

to improve roadway operations, and 

asset management practices to maintain 


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roads and reduce excess fuel 

consumption from poor road condition 

surface. The FHWA reiterates that the 

final rule does not require rural States, 

or any State, set targets at a specific 

level or to reduce GHG emissions. The 

final rule also does not impose any 

penalties on a State for failing to meet 

its GHG targets. Therefore, there is no 

justification to exempt rural States, and 

doing so would run counter to the 

purpose of this rule, which is to provide 

consistent and timely information about 

on-road mobile source emissions on the 

NHS to support better informed 

planning choices to reduce GHG 

emissions or inform tradeoffs among 

competing policy choices. 

Comments on Benefits of a GHG 

Measure 

Comment: A large number of 

commenters addressed potential 

benefits from the proposed GHG 

measure. Several commenters, including 

State DOTs, that have independently 

measured and reported GHG emissions 

asserted that a GHG performance 

measure can inform planning and 

decision making, including project 

prioritization and statewide 

transportation planning processes. A 

few of these commenters additionally 

asserted that implementation of the 

proposed GHG measure as part of TPM 

would complement existing GHG 

reduction efforts. Additional benefits 

identified by commenters included: 

empowering State and local leaders to 

better align their transportation 

decisions with climate goals, enhancing 

transparency and accountability of 

investment decisions, supporting a 

consistent and coordinated approach to 

reducing GHG emissions across all 

levels of government, and supporting 

national GHG emission reduction goals 

in accordance with E.O. 13990 and E.O. 

14008. 

By contrast, several commenters 

questioned the benefits of the proposed 

measure. Several commenters asserted 

that DOTs and MPOs have limited 

influence over GHG emissions. One 

commenter asserted that the proposed 

measure would not help agencies 

identify projects to reduce GHG 

emissions and a couple of commenters 

asserted that the measure would not 

impact transportation decisions. 

Another commenter stated this is 

because the proposed rule does not 

propose a method for requiring 

continually decreasing GHG emissions 

and does not penalize noncompliance. 

Response: The FHWA is establishing 

a GHG emissions performance measure 

in response to an increasingly urgent 

climate crisis and to improve the 

transportation sector’s GHG 

performance, which has lagged behind 

other major U.S. sectors. The EPA 

estimates of GHG emissions date back to 

1990, and over that time the 

transportation sector has gone from 

being the third largest to the largest 

source of U.S. GHG emissions. The 

FHWA agrees with commenters that 

establishing a GHG performance 

measure is a critical step in improving 

transportation system performance and 

supporting national GHG reduction 

goals. A key premise underlying the 

GHG measure is that measuring and 

reporting complete, consistent, and 

timely information on CO2 emissions 

from on-road mobile sources will 

provide opportunities for all levels of 

government and the public to make 

more informed decisions that consider 

transportation’s contribution to climate 

change and opportunities to reduce 

GHG emissions. The FHWA believes 

that by establishing a uniform GHG 

measure, it is more likely that GHG 

emissions will be consistently and 

collaboratively considered by State 

DOTs and MPOs through transportation 

planning and performance management. 

The FHWA also agrees with the 

comments enumerating the benefits of 

establishing the GHG measure. 

The FHWA disagrees that State DOTs 

and MPOs have limited influence over 

GHG emissions. As noted earlier, BIL 

provides more than $27 billion in 

Federal funding to help State DOTs and 

MPOs achieve their GHG reduction 

targets, and States have additional 

ability to influence GHG emissions 

through highway operations and 

roadway maintenance. The FHWA also 

disagrees with commenters asserting 

that a GHG measure would not inform 

planning and investment decisions. As 

noted in comments from agencies that 

have implemented their own GHG 

measures, performance-based 

approaches that include GHG emissions 

have been successfully used to guide 

planning and investment decisions. 

Comments on Burden Posed by a GHG 

Measure 

Comment: Several commenters 

identified concerns about the impact of 

the proposed rule on State DOTs and 

MPOs. Several commenters asserted that 

the proposed rule would duplicate 

established and effective programs such 

as fuel economy standards established 

under the Corporate Average Fuel 

Economy (CAFE) Program, and 

transportation CO2 estimates published 

by EPA and the Department of Energy 

(DOE). Other commenters asserted the 

implementation of calculating and 

tracking GHG emissions would be 

overly burdensome, and that the costs of 

complying with declining targets would 

be significant for some States. A few 

commenters additionally asserted that 

the proposed GHG measure would not 

be sufficient for making program- and 

project-level investment decisions. 

Response: FHWA disagrees that the 

measure established under this rule 

would place undue burden on States 

and MPOs. The FHWA also disagrees 

that the GHG measure would duplicate 

other Federal programs addressing 

transportation GHG emissions. A key 

purpose of the GHG measure is to 

provide an information source to help 

State DOTs, MPOs and other agencies 

set targets, monitor trends, and evaluate 

the impact of transportation investments 

and other strategies to reduce on-road 

GHG emissions. This is a different 

function from the CAFE program, which 

regulates GHG emissions rates for new 

vehicles and is not intended to account 

for factors such as changes in travel 

demand, congestion, and other factors 

affecting total on-road GHG emissions. 

While Federal agencies such as EPA and 

DOE publish estimates of total 

transportation CO2 emissions, these data 

are not disaggregated to reflect on-road 

activity, and also lag the publication of 

FHWA fuel use data by up to a year. 

Since FHWA’s GHG measure 

specifically addresses CO2 on-road 

activity and utilizes FHWA’s data for 

the estimated fuel volumes distributed 

shortly after its publication, it will serve 

as a comprehensive and timely 

information source to support 

transportation decision making and to 

track progress toward national goals. 

Several State DOTs that have 

independently implemented their own 

on-road tailpipe CO2 measure observed 

that all State DOTs already compile the 

necessary data as part of existing 

reporting obligations. These 

commenters asserted that the labor hour 

assumptions from the RIA are 

reasonable, that neither the estimation 

of the measure nor target setting would 

result in significant burdens for State 

DOT staff. 

Lastly, FHWA disagrees that the cost 

of complying with declining targets will 

be burdensome to transportation 

agencies. The BIL provides over $27 

billion in Federal funding to help State 

DOTs and MPOs achieve the declining 

GHG targets that they will set under this 

rule. The rule does not impose 

compliance costs associated with 

achieving declining targets since the 

rule does not require that emissions 

actually decrease or establish any 

penalties in the event that declining 

targets are not achieved. 


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§ 490.101 Definitions 

Comments on the Measure’s 

Relationship to National GHG Goals 

Comment: A large number of 

commenters addressed the proposed 

performance measure’s relationship to 

the national GHG goals. Several 

commenters asserted that the proposed 

performance measure would support the 

national GHG goals and expressed 

support for this connection. A smaller 

number of commenters asserted that the 

proposed performance measure would 

not support the national goals, as 

meeting them through the targets is 

unattainable/unrealistic, would require 

actions beyond State DOT/MPO 

authority, and would not match the 

timeline needed to see improvements 

from BIL-funded projects. 

In addition, several of these 

commenters asked for clarifications 

related to the Administration’s national 

goals for reducing GHG emissions. One 

commenter asked whether the declining 

targets must demonstrate a 50–52 

percent reduction in on-road CO2

emissions relative to 2005 levels by 

2030 and net-zero on-road CO2

emissions by 2050, or whether the 

targets must only aid in meeting the 

Administration’s goals. One commenter 

requested additional guidance on how 

to set targets consistent with the 

national GHG goals for 2030 and 2050, 

and another requested guidance on how 

to translate the proposed GHG targets, 

which would be expressed relative to 

2021 levels, to the Administration’s 

goals, which are expressed relative to 

2005 levels. Another commenter 

requested clarification on the meaning 

of net-zero, and asked whether FHWA 

will provide mechanisms to offset 

remaining emissions to achieve net-zero 

by 2050. 

Response: Upon considering public 

comments, FHWA recognizes that the 

reference to net-zero targets and 

national GHG goals in the NPRM may 

have caused confusion, and FHWA has 

removed the definition of net-zero from 

23 CFR 490.101 and the requirement in 

23 CFR 490.105(e)(10) that targets for 

the GHG measure ‘‘demonstrate 

reductions toward net-zero targets.’’ In 

the final rule, FHWA is not requiring 

State DOTs and MPOs to set any 

specific declining targets or achieve 

national GHG goals. Declining targets 

are not required to align with the 

Administration’s goal for the U.S. to 

reduce CO2 emissions 50–52 percent 

below 2005 levels by 2030 and achieve 

net-zero emissions economywide by 

2050, in accordance with national 

policy established under E.O.s 13990 

and 14008. Rather, FHWA believes 

these national goals can provide a useful 

roadmap for State DOTs and MPOs as 

they consider how their targets fit into 

a longer timeframe of emission 

reductions. 

§ 490.105 Establishment of 

Performance Targets 

Comments on Establishing Declining 

Targets 

Comment: A large number of 

commenters addressed the requirement 

to establish declining targets. The 

majority of these commenters were 

opposed to this requirement. Most of 

these commenters asserted that a 

declining target is inconsistent with 23 

U.S.C. 150, which provides States with 

discretion in setting performance 

targets. Commenters asserted that States 

should set data-driven targets based on 

their own circumstances and analysis, 

which is not possible when declining 

targets are required. Commenters also 

asserted that a requirement for declining 

targets would reflect FHWA’s 

influencing the selection of projects, 

with States facing pressure to select 

projects to support declining targets 

without commensurate funding through 

BIL to implement this type of change. 

One commenter noted this would be 

the only measure to which MPOs would 

be expected to aid States in 

documenting declining targets, and 

requested that FHWA provide MPOs a 

5-year grace period before requiring the 

declining targets to be established. 

In contrast, several commenters 

supported the requirement to establish 

declining targets. These commenters 

asserted that such a requirement would 

require States to set targets that will 

result in improvement, as opposed to 

other performance measures, and 

support urgent progress on reducing 

GHG emissions from transportation. 

These commenters also asserted that the 

declining target requirement would not 

impinge on States’ authority to set their 

own targets. 

A few commenters recommended that 

FHWA require State DOTs and MPOs to 

provide their underlying assumptions 

and rationale for vehicle emissions rates 

and VMT, as well as to clarify in the 

final rule that targets should be based 

not only on projections for improvement 

in vehicle efficiency, but also on 

projections for reductions in emissions 

because of VMT-reducing investments, 

system efficiency enhancements, and/or 

other strategies. 

Response: After considering these 

comments, FHWA has retained the 

requirement for State DOTs and MPOs 

to set declining targets as proposed in 

the NPRM and as further discussed in 

this final rule. State DOTs and MPOs 

that have NHS mileage within their 

State geographic boundaries and 

metropolitan planning area boundaries, 

respectively, are required under the rule 

to establish declining targets for 

reducing CO2 emissions generated by 

on-road mobile sources. Given the 

urgency of responding to the climate 

crisis, FHWA believes it is 

inappropriate for State DOTs and MPOs 

to delay establishing targets. The FHWA 

also believes States and MPOs have the 

tools necessary to meet these timelines. 

State DOTs will establish targets no later 

than February 1, 2024, and MPOs are 

required to establish targets no later 

than 180 days after the State DOT 

establishes their targets. See 23 CFR 

490.105(e)(1)(ii) and 490.105(f)(1). 

The requirement for State DOTs and 

MPOs to establish declining targets for 

tailpipe CO2 emissions on the NHS is 

vital given the urgency of the climate 

crisis. Declining targets will help State 

DOTs and MPOs plan toward reductions 

in GHG emissions and make Federal 

infrastructure investment decisions that 

reduce climate pollution, a principle set 

forth in E.O. 14008 (86 FR 7626). As 

discussed in the NPRM, FHWA is not 

prescribing what declining targets 

would look like in each State or MPO. 

State DOTs and MPOs have the 

flexibility to set targets that work for 

their respective policies and priorities, 

so long as the targets are declining. 

Under the rule, State DOTs and MPOs 

have discretion in setting an appropriate 

declining target as informed by 

complete, consistent, and timely State 

and local information on GHG 

emissions from on-road mobile source 

emissions. The rule provides State 

DOTs and MPOs with the tools to 

consider GHG emissions in making 

transportation decisions and imposes no 

penalties on States and MPOs that do 

not meet their targets; therefore, FHWA 

rejects the characterization that State 

DOTs and MPOs are being pressured or 

otherwise required to select any specific 

project based on this measure. 

The FHWA disagrees with the 

assertion that States and MPOs cannot 

set data-driven targets based on their 

own circumstances and analyses when 

the targets must be declining. States and 

MPOs will use the appropriate data to 

set declining targets, as informed by 

their policies and priorities. State DOTs 

and MPOs will use the data to evaluate 

current performance and predict future 

performance when establishing 

declining targets. 

In addition, FHWA has removed the 

proposed requirement for declining 

targets to demonstrate reductions 

toward net-zero targets. For additional 


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information on FHWA’s decision not to 

include net-zero in the final rule, see the 

discussion under Comments on the 

Measure’s Relationship to National GHG 

goals, in the Section-by-Section 

Discussion of § 490.101. 

Comments on Alternative Target Setting 

Frequencies 

Comment: A large number of 

commenters provided feedback related 

to a question raised in the NPRM about 

introducing a new requirement for State 

DOTs and MPOs to establish 8- and 20- 

year targets at the beginning of each 4- 

year performance period. Many 

commenters favored adding long-term 

targets. Commenters in favor of the 

requirement noted that long-term targets 

can function as policy goals to allow for 

more forward-looking evaluation of 

emissions trajectories. The other 

commenters supporting this change 

asserted that long-term targets better 

align with FHWA planning 

requirements (Long Range 

Transportation Plan (LRTP), 

Metropolitan Transportation Plan 

(MTP), State Transportation 

Improvement Program (STIP), 

Transportation Improvement Program 

(TIP)), and would create greater 

visibility and accountability. 

In contrast, a small number of 

commenters opposed adding long-term 

targets. A few of these commenters 

noted that they support establishing 

long-term targets as a best practice, but 

not as a requirement. Others responded 

that long-term targets would be too 

burdensome to develop and would lead 

to speculative results that will not add 

value to the target setting process. 

Response: The FHWA considered the 

comments citing the benefits of 

establishing long-term targets but 

declines to do so at this time to remain 

consistent with the existing TPM 

framework used for the other NHPP 

measures. Providing consistency with 

other measures minimizes the 

complexity of the TPM requirements. It 

also allows the measures with biennial 

targets to be considered in relation to 

each other, which can help illustrate 

how these measure areas are part of a 

single transportation system. State DOTs 

and MPOs can voluntarily establish 

longer-term targets in the manner that 

best aligns with their individual policies 

and plans. 

Comments on MPO Joint Targets 

Comment: Several commenters 

expressed concern about the proposed 

requirement for joint UZA targets. 

Almost all of these commenters 

otherwise supported the proposed 

measure but recommended removing 

the joint UZA target from the final rule. 

They identified a variety of concerns, 

particularly that a joint UZA target 

would be duplicative of the requirement 

for metropolitan planning area targets, 

thereby adding administrative burden 

for both MPOs and State DOTs. They 

also asserted that a joint UZA target 

would be overly complex, especially for 

planning agencies that are part of 

multiple UZAs or for those that share 

borders with a planning agency that 

serves a different population, such as 

rural and urban. A few commenters 

suggested alternatives to the joint UZA 

target: removing the target based on 

MPO boundaries and only requiring 

targets based on UZA; only requiring 

targets on either MPO boundaries or 

those based on UZAs; or limiting the 

targets based on MPO boundaries and 

on UZA boundaries only to MPOs and 

UZAs of a certain size, regardless of if 

there is a joint target or only 

metropolitan planning area targets. 

Response: The FHWA has considered 

these comments and decided to retain 

the requirement for joint UZA targets. 

The FHWA disagrees with comments 

suggesting a joint UZA target is 

duplicative of the requirement for 

metropolitan planning area targets. The 

FHWA believes the requirement to 

establish a joint UZA target would 

encourage collaboration across MPO 

boundaries through coordinated systems 

and region-based approaches to 

reducing GHG emissions. The FHWA 

believes this collaboration is useful 

regardless of the MPO or UZA size. 

Therefore, FHWA has retained the 

requirement for MPOs to collectively 

establish a single joint 4-year target for 

each UZA that contains NHS mileage 

and that is overlapped by the 

boundaries of two or more metropolitan 

planning areas. As provided in 23 CFR 

490.105(f)(10), joint targets are also 

required to be declining targets for 

reducing CO2 emissions from on-road 

mobile sources, and these targets are 

established in addition to each MPO’s 

individual target for their metropolitan 

planning area. The targets established 

are required to be a quantifiable target, 

which means a value must be used. 

To support implementation of this 

final rule, FHWA is publishing in the 

docket applicability tables with the 

MPOs required to establish joint targets 

in accordance with 23 CFR 

490.105(d)(4) and 490.105(f)(10). As 

with all other MPO targets, and 

consistent with 23 CFR 490.105(f)(1), 

joint targets are to be established no 

later than 180 days after the MPOs’ 

respective State DOT(s) establish their 

targets. For additional information on 

the timeline for establishing joint 

targets, see the discussion under 

Comments on MPO Target Setting 

Frequency in this section. 

Comments on MPO Target Setting 

Frequency 

Comment: A small number of 

commenters provided feedback on the 

frequency of MPO targets. A couple of 

these commenters recommended that 

the final rule only include 4-year targets 

for MPOs. Another requested that the 

final rule add 2-year targets for MPOs to 

increase coordination with States on the 

same schedule. In addition, one 

commented that the final rule should 

leave out both the 2- and 4-year targets, 

and instead adopt 8- and 20-year targets. 

Response: Upon consideration of the 

comments, FHWA has retained the 

requirement for MPOs to establish 4- 

year targets as previously established in 

23 CFR 490.105(f). The FHWA believes 

the benefits associated with requiring 

MPOs to establish additional 2-year 

targets for the GHG measure would not 

exceed the additional burden to MPOs. 

The FHWA believes that introducing 8- 

and 20-year targets that would only 

apply to the MPOs and would only 

apply to a single measure would add 

confusion and complexity that would 

not be offset by meaningful benefits. 

The final rule makes no changes to 

the MPO target establishment schedule, 

and MPOs will continue to report their 

baseline performance and progress 

toward their targets in their system 

performance report. See 23 CFR 

490.107(c)(2). An MPO will establish 

targets for this measure, including any 

required joint targets, no later than 180 

days after their respective State DOT(s) 

establishes their 4-year target for the 

measure. See 23 CFR 490.105(f)(1). The 

MPOs will report their established GHG 

targets, including any joint targets, to 

the State DOT in a manner that is 

documented and mutually agreed upon 

by both parties. See 23 CFR 

490.107(c)(1). 

Comments on Technical Assistance 

Comment: A large number of 

commenters requested technical 

assistance from FHWA to assist in the 

implementation of the proposed 

performance measure. Examples cited 

by these commenters included tools and 

best practices for modeling the 

emissions impacts of various types of 

projects; strategies/pathways/roadmaps 

to reduce tailpipe CO2 emissions 

(especially those with other social and 

economic impacts, including for 

disadvantaged communities); factors to 

consider in setting targets; and 

recommended targets to meet national 

GHG reduction goals. 


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Response: The FHWA believes the 

existing technical assistance, technical 

tools, and guidance available through 

FHWA’s TPM and Energy and 

Emissions Websites, as well as resources 

provided by the National Highway 

Institute (NHI), AASHTO, AAMPO, and 

other publicly available sources provide 

the information necessary for State 

DOTs and MPOs to establish targets for 

the GHG measure. In addition to these 

existing resources, FHWA recently 

launched an Every Day Counts (EDC) 

innovation to help transportation 

agencies quantify GHG emissions and 

set targets for reducing GHG emissions 

through transportation planning. As this 

measure is implemented, FHWA will 

continue to consider how best to 

support State DOTs and MPOs in 

implementing all the TPM requirements 

in 23 CFR part 490 and will provide 

technical assistance on an ongoing 

basis. 

Comments on Benchmarks 

Comment: A few commenters 

suggested that FHWA provide 

intermediate benchmarks for States to 

use to ensure they are on track to meet 

the 2030 national GHG reduction goal. 

Response: As noted earlier, while 

FHWA encourages State DOTs and 

MPOs to consider the Administration’s 

GHG emissions reduction and net-zero 

goals when establishing targets, FHWA 

has removed the proposed requirement 

for State DOTs to align their declining 

targets with the Administration’s GHG 

reduction goals. State DOTs and MPOs 

have the flexibility to set targets that 

work for their respective policies and 

priorities, so long as the targets are 

declining. For example, a State DOT 

might set targets that would result in 

steady, incremental progress toward netzero emissions, or that achieve 

aggressive early GHG emissions 

reductions, or be more gradual at first 

and become more aggressive later. 

Therefore, FHWA declines to provide 

intermediate benchmarks at this time. 

However, State DOTs may voluntarily 

establish longer-term targets to serve as 

intermediate benchmarks to help them 

align their short-term emission 

reduction targets with their long-term 

GHG reduction goals. 

§ 490.107 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 fouryear targets in the next performance 

period. 

Response: Upon consideration of 

comments, FHWA determined that State 

DOTs and MPOs will establish or adjust 

targets every two years beginning in 

2024. Targets will first be established for 

this measure by State DOTs and 

reported to FHWA in a State Initial GHG 

Report, no later than February 1, 2024. 

See 490.105(e)(1)(ii) and 490.107(d). 

The information provided by State 

DOTs in the 2024 State Initial GHG 

Report will be considered the 2024 Mid 

Performance Period Progress Report. See 

490.107(b)(2)(i). State DOT reporting 

will follow an October 1st cycle 

beginning in 2026 to align with other 

measure reporting requirements. 

Recognizing the urgency of addressing 

the climate crisis, FHWA is establishing 

an initial date that is as early as 

practicable and will reflect the best 

available data. The FHWA is also 

establishing a February 1, 2024 

reporting date for the first GHG targets 

to increase the opportunities for the 

targets to be used to help guide overall 

Federal investments available through 

the many programs available in BIL that 

can reduce CO2 emissions. The February 

1, 2024 reporting date is supportive of 

a 2022 GHG measure reference year 

since the 2022 VMT data are expected 

to be finalized by November 30, 2023. 

The FHWA made changes throughout 

the regulation in response to the 

February 1, 2024 target establishment 

and reporting date, and they are 

summarized here. Consistent with all 

other NHPP measures, the GHG measure 

will have a 4-year performance period 

that will begin January 1, 2022. See 23 

CFR 490.105(e)(4)(i) and 

490.105(e)(4)(i)(C). The mid-point of the 

performance period is 2024, and the end 

of the performance period is 2026. The 

FHWA acknowledges that this date is in 

advance of this final rule’s effective 

date. However, the start of the 

performance period merely serves as the 

benchmark that begins the TPM 

schedule. This measure does not 

generate any requirements for State 

DOTs or MPOs in advance of the 

effective date. The first GHG targets will 

be due on February 1, 2024, after the 

effective date of this rulemaking. The 

FHWA believes it is appropriate to 

begin the performance period on 

January 1, 2022 to align with the TPM 

program and to facilitate a mid-point of 

the performance period in 2024, and to 

align with TPM’s existing 4-year 

performance period. 

Since initial targets will be 

established so close to the mid-point, 

FHWA determined that 2-year targets 

would not be required. See 23 CFR 

490.105(10)(i)(A) and 490.105(e)(4)(iii). 

Section 490.105(e)(10)(i)(B) requires that 

4-year targets for this measure be 

established, and section 490.105(e)(1)(ii) 

requires they be established no later 

than February 1, 2024. Section 

490.107(d) was added to create the State 

Initial GHG Report to receive the State 

DOT’s initial 4-year GHG target. 

The State Initial GHG Report 

requirements are similar to the Baseline 

Performance Period Report. In the State 

Initial GHG Report, State DOTs will 

provide the 4-year target, the basis for 

the target, the baseline data, which is 

the reference year for this performance 

period only, the relationship with other 

performance expectations, the data 

points used to calculate the GHG metric, 

described in 23 CFR 490.511(c), and the 

value calculated. The data used to 

calculate the metric for the reference 

year for the Initial GHG Report is 

specified in section 490.107(d)(2). 

Information on the GHG measure will be 

submitted as part of the biennial reports 

starting with the 2026 Full Performance 

Period Progress Report. See 23 CFR 

490.107(b)(1), (b)(2), and (b)(3). 

For additional information on how 

the initial target establishment 

requirements associated with February 

1, 2024 will impact the significant 

progress determination done after the 

2024 Mid Performance Period Progress 

Report, see the discussion under 

Comments on Significant Progress 

Timing, in the Section-by-Section 

Discussion of section 490.109. 


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Comments on MPO Reporting 

Frequency and Process 

Comment: Many commenters 

responded to the MPO reporting 

requirements and many proposed 

revisions to the requirements. Many of 

these commenters noted that the final 

rule should require MPOs to report 

every two years on progress towards the 

performance measure, asserting that 

MPOs have a significant impact on 

transportation investment decisions in 

metropolitan planning areas, and 

therefore, should be as transparent as 

States in this regard. Similarly, another 

commenter suggested that the final rule 

could encourage but not require MPO 

reporting every two years given the 

additional burden of biennial reporting. 

A couple of commenters requested 

that the final rule not require additional 

reporting by MPOs outside of the system 

performance report so as not to increase 

the reporting and tracking burden on 

MPOs and State DOTs. 

Response: The FHWA considered the 

comments and determined the existing 

reporting requirements for MPOs in 23 

CFR 490.107(c), which FHWA has 

successfully implemented for other 

performance measures, are appropriate 

for reporting on the GHG measure. The 

MPOs are required to report on 

performance within their metropolitan 

transportation plan (MTP), which are 

developed every 4 or 5 years. See 23 

CFR 450.324(d). Biennial reporting by 

MPOs would necessitate an additional 

report outside of the MTP. At this time, 

FHWA does not believe that adding a 

new process for reporting on 

performance specifically for the GHG 

measure would provide benefits that 

would exceed the increased burden 

from additional reporting requirements. 

Therefore, FHWA has not made any 

changes in the final rule based on the 

comments. The FHWA has retained the 

requirement for MPOs to report progress 

toward their GHG target in their system 

performance report in the metropolitan 

plan. 

For related information on the MPO 

target establishment timeline, see the 

discussion under Comments on MPO 

Target Setting Frequency in the SectionBy-Section Discussion for section 

490.105. 

For additional information related to 

MPO reporting, see the discussion 

under Comments on MPO Report 

Content in this section. 

Comments on MPO Report Content 

Comment: One commenter noted that 

there does not appear to be a 

requirement for the MPO to report the 

value of the measure (percent reduction 

in tailpipe CO2 emissions on the NHS) 

for their MPA or any required joint UZA 

targets (for those UZAs that overlap 

multiple MPOs). In addition, a 

commenter asked for clarification that 

reporting of the MPO metric calculation 

method is not required when an MPO 

supports the State targets. Another 

commenter noted that if an MPO 

chooses to support the State targets, 

reporting the MPO region total appears 

unnecessary. Commenters noted that for 

all the other performance measures (e.g., 

safety measures bridge and pavement 

condition measures, and system 

performance and reliability measures), 

there is no requirement for MPOs to 

calculate and report metric or measure 

values to the State DOT(s). 

Response: The FHWA has not made 

any changes in the final rule based on 

these comments. The FHWA believes 

that the requirement for MPOs to report 

the metrics used to calculate the 

measure and the metric calculation 

method is justified because MPOs can 

use a range of different approaches to 

calculate the metric, even if they choose 

to adopt State targets. For this measure, 

MPOs are required to report all targets 

they are required to establish, including 

any joint targets, to the State DOT in a 

manner that is documented and 

mutually agreed upon by both parties. 

See 23 CFR 490.107(c)(1). In the system 

performance report, MPOs will report 

baseline performance for this measure 

and progress toward the achievement of 

their targets. They will also report the 

calculation of annual tailpipe CO2

emissions for the NHS for the period 

between the reference year and the first 

system performance report that includes 

the GHG measure information. 

Subsequent reports will cover the 

period between the current report and 

the last report. In addition, the MPO 

will report a description of their metric 

calculation method(s). 

The FHWA has removed the proposed 

requirement for MPOs to report tailpipe 

CO2 emissions on all roads. The reason 

for removing this requirement is 

described in response to the comments 

on MPO metric reporting, in the 

discussion for section 490.511. 

As a new requirement of the rule, in 

the system performance report, FHWA 

is requiring MPOs using metric 

calculation methods not specified in 

section 490.511(d) to include 

information demonstrating the 

method(s) has valid and useful results 

for measuring transportation related 

CO2. The reason for this requirement is 

provided in the discussion under 

Comments on Mutual Agreement of 

Metric Calculation Method by State 

DOTs and MPOs, in the Section-bySection Discussion for section 490.511. 

Consistent with 23 CFR 450.226 and 

23 CFR 450.340, the MPO’s MTP and 

TIP must meet the Performance-Based 

Planning and Programming (PBPP) 

requirements of the planning rule for 

this performance measure by no later 

than 2 years after the effective date of 

this rule. 

Comments on Biennial Reporting Cycle 

Comment: A few commenters 

provided general feedback on the State 

DOT biennial reporting cycle and 

recommended that the final rule not 

require two-year reporting for State 

DOTs. 

Response: The FHWA has not made 

any changes in the final rule based on 

the comments. Section 150(e) of Title 

23, U.S.C., requires State DOTs to report 

on performance to FHWA on a biennial 

basis. The FHWA considered the 

comments and determined the existing 

biennial reporting cycle established in 

23 CFR 490.107(b), which FHWA has 

successfully implemented for other 

performance measures, will support 

State DOTs as they implement the new 

GHG measure within the context of the 

overall TPM program. This two-year 

reporting for State DOTs is consistent 

with other performance measures, 

which minimizes the incremental 

burden since State DOTs do not need to 

develop an additional reporting process 

and cycle for this one measure. Twoyear reporting is also useful in helping 

State DOTs progress toward a longerterm goal and can reflect short-term 

actions such as operational 

improvements. Such short-term actions 

are typically outside the control of 

MPOs, which consequently have 4-year 

reporting requirements. 

Comments on Alternative Progress 

Reporting Requirements 

Comment: A couple of commenters 

suggested additions to the reporting 

requirements. One requested a provision 

for qualitative reporting to describe 

progress on the measure, to be able to 

report trends and overall actions and 

strategies that contribute to lower sales 

of fossil fuel used for on-road vehicles. 

Another requested requiring State DOTs 

and MPOs to identify planned actions to 

reduce emissions and actions that have 

been implemented to reduce emissions. 

Response: The FHWA has not made 

any changes in the final rule based on 

the comments. The reporting 

requirements in 23 CFR 490.107 

represent the minimum requirements 

for State DOTs and MPOs under the 

TPM regulations. The requirements in 

the final rule do not prevent State DOTs 


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and MPOs from providing more detailed 

qualitative reporting on progress and 

planned actions at the State and local 

level. 

Comments on Publicizing GHG 

Reporting Information 

Comment: A large number of 

commenters provided recommendations 

intended to increase the transparency 

and accessibility of reporting on 

performance. Some commenters 

recommended that FHWA publish a 

regular report on State DOT and MPO 

progress, with a couple of these 

commenters suggesting that such a 

report should be issued within three 

months of FHWA receiving the data and 

be made available in an interactive 

format that allows viewers to see both 

detailed and summary data. 

Commenters noted that having the data 

publicly available would also help 

stakeholders to hold State DOTs and 

MPOs accountable for progress toward 

their GHG targets. 

Response: The FHWA has not made 

any changes in the final rule based on 

the comments. As part of FHWA’s 

commitment to transparency, FHWA 

regularly publishes the State DOT’s 

biennial reports and FHWA’s significant 

progress determinations on its website 

as part of the publicly available TPM 

Dashboards, and the GHG measure will 

be included in the TPM Dashboards. 

The State performance dashboards and 

reports are available at https://

www.fhwa.dot.gov/tpm/reporting/state/. 

State DOTs and MPOs are required to 

report on progress as outlined in this 

final rule and described in 23 CFR 

490.107. External reporting by the U.S. 

DOT on funds spent in specific areas is 

outside the scope of this rulemaking. 

§ 490.109 Assessing Significant 

Progress Toward Achieving the 

Performance Targets for the National 

Highway Performance Program and the 

National Highway Freight Program 

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-bySection Discussion of section 490.107. 


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17See Office of Highway Policy Information, 

Federal Highway Administration, Traffic Volume 

Trends December 2022, available at https://

www.fhwa.dot.gov/policyinformation/travel_

monitoring/22dectvt/; Traffic Volume Trends 

December 2019, available at https://

www.fhwa.dot.gov/policyinformation/travel_

monitoring/19dectvt/. 

18See EPA Inventory of U.S. Greenhouse Gas 

Emissions and Sinks: 1990–2021, table 2–13, 

available at https://www.epa.gov/ghgemissions/ 

inventory-us-greenhouse-gas-emissions-and-sinks1990-2021. EPA’s estimates weight CO2 and other 

greenhouse gases on their 100-year global warming 

potentials, as specified in the Intergovernmental 

Panel on Climate Change Fifth Assessment Report. 

§ 490.503 Applicability 

Comments on Roadway Applicability 

Comment: A large number of 

commenters recommended that State 

DOTs and MPOs be required to set 

targets and track GHG emissions from 

travel on all public roads and not just 

the NHS. These comments asserted that 

the NHS represents only about 5 percent 

of total U.S. roadways, and just over 50 

percent of vehicle miles traveled. They 

also asserted that setting targets and 

tracking emissions from travel on all 

public roads would provide a more 

comprehensive understanding of 

transportation emissions and allow for 

more comprehensive solutions. 

Response: The FHWA is finalizing as 

proposed that this measure will assess 

performance on the NHS. The FHWA 

acknowledges that the NHS only 

represents a limited set of U.S. 

roadways, and a measure for all public 

roads would capture more emissions 

from the transportation sector. However, 

as detailed in Section III of this 

preamble, FHWA is promulgating this 

rulemaking under 23 U.S.C. 

150(c)(3)(A)(ii)(IV)–(V), which requires 

that the Secretary establish measures for 

States to use to assess the performance 

of the Interstate System and the nonInterstate NHS. The statute does not 

provide authority to measure 

performance on public roads other than 

the Interstate and non-Interstate NHS. 

Thus, the GHG measure under 23 CFR 

490.105(c)(5), and associated 

requirements, must be based on 

performance on the Interstate System 

and non-Interstate NHS. However, State 

DOTs and MPOs can choose to 

implement other measures to support 

their programs, including measures that 

apply to all roads, in a manner that best 

aligns with their individual policies and 

plans. 

§ 490.505 Definitions 

Comments on Reference Year 

Comment: Many commenters, 

including those both supporting and 

opposed to the proposed measure, 

provided feedback on the use of 

calendar year (CY) 2021 as the reference 

year, with all asserting that it would not 

be appropriate because of the lingering 

effects of the COVID–19 pandemic on 

travel in 2021. Commenters noted that 

using CY 2021 would set the baseline 

artificially low as VMT and fuels sales 

continue to rebound and would make it 

difficult for States to meet declining 

targets. Commenters provided one or 

more of the following suggestions as an 

alternative to using CY 2021 as the 

reference year: 2022 or a year further in 

the future; 2019 as a pre-pandemic year; 

2005 as a reference to the national GHG 

targets; or the 5-year average as the 

baseline. 

Response: The FHWA agrees with the 

commenters’ observation that the 

COVID–19 pandemic reduced travel 

demand, motor fuel consumption, and 

CO2 emissions in 2021 as compared to 

pre-pandemic levels, and that using 

2021 as a reference year would establish 

a lower-than-normal basis for evaluating 

future performance. In response to these 

concerns, FHWA is establishing 2022 as 

the reference year for the GHG measure. 

In 2022, travel activity is estimated to 

have nearly rebounded to pre-pandemic 

levels, with FHWA’s December 2022 

Traffic Volume Trends report showing 

cumulative mileage of 3.17 trillion miles 

in 2022, compared with 3.27 trillion 

miles in 2019.17 2022 is also the most 

recent year for which finalized VMT 

estimates will be available to use in 

calculating the State DOTs’ GHG metric 

and measure. 

Comments on Definition of GHG 

Emissions 

Comment: Several commenters 

requested clarification on the definition 

of GHG emissions provided in the 

NPRM. These commenters asserted that 

definition proposed at 23 CFR 490.505 

goes beyond tailpipe CO2 emissions to 

include methane, nitrous oxides, and 

hydrofluorocarbons. Commenters 

asserted that this broader definition 

could open the door to further 

regulation without a rulemaking. 

Response: The definition of GHG 

included in the NPRM is a common, 

scientific definition of GHG emissions, 

which include CO2 in addition to other 

gases such as methane (CH4), nitrous 

oxide (N2O), and hydrofluorocarbons 

(HFCs). According to EPA data, CO2

accounts for approximately 97 percent 

of on-road GHG emissions when 

weighting the 100-year global warming 

potential of CO2 and other greenhouse 

gases.18 The FHWA concluded that 

because approximately 97 percent of onroad GHG emissions are from CO2, 

including non-CO2 gases in the measure 

would not yield significant benefits. 

Any changes to the GHG measure, 

including any expansion to the 

applicability of this measure beyond 

tailpipe CO2 emissions, would follow 

notice and comment rulemaking. 

§ 490.509 Data Requirements 

Comments on CO2 Emissions Factor 

Comment: Several commenters 

provided feedback on the proposal for 

FHWA to provide a standard CO2

emissions factor for each fuel type. A 

few of the commenters said FHWA 

should establish CO2 emissions factors, 

with one recommending that FHWA 

provide optional supplemental fuel 

blend information and State-specific 

carbon intensity values based on Low 

Carbon Fuel Standards reporting. 

Several commenters requested that 

FHWA consider accommodating 

alternative emissions factors for fuel 

blends when States and MPOs provide 

credible alternatives. A few commenters 

requested additional clarity on CO2

emissions factors, including what they 

will look like, how they will change 

over time, how they will be accessed, 

whether they will vary based on 

location, and for some specific 

examples. One commenter stated there 

is a need to incorporate the biogenic 

nature of CO2 from bioethanol into the 

emissions factor calculation, with one 

commenter expressing general concerns 

about the inputs to EPA’s Motor Vehicle 

Emissions Simulator (MOVES) Model. 

Response: As proposed in the NPRM, 

FHWA will publish uniform CO2

emissions factors for each fuel type to be 

used by all States in calculating the 

State DOT’s metric for the GHG 

measure. The FHWA believes that the 

requirement for States to use a uniform 

factor, for each fuel type will ensure 

consistency and comparability of States’ 

estimates of tailpipe CO2 emissions. 

The FHWA recognizes that some 

States have implemented or are 

considering the implementation of low 

carbon fuels programs to reduce the 

overall carbon intensity of 

transportation fuels. However, since 

these programs often target reductions 

in the GHG emissions from well-topump processes, FHWA believes that 

including emission factors for 

alternative fuel blends as part of a 

tailpipe-only measure would be overly 

complex. The FHWA recognizes that 

CO2 emissions estimates for the 

transportation sector as reported in the 

EPA’s Inventory of U.S. GHG Emissions 

and Sinks do not include CO2 emissions 

associated with biofuels, such as the 

ethanol component of E10 and other 

gasoline blends, since it is assumed that 


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the combustion of the biogenic 

component of these fuels is recycled as 

biofuel crops and forests regenerate. The 

FHWA will consider EPA’s accounting 

practice for addressing biofuel CO2

emissions as it develops the standard 

CO2 emissions factors to support this 

final rule. The FHWA will publish these 

factors on its website by August 15th of 

each biennial reporting year. 

Comments on Data Availability Date 

Comment: A small number of 

commenters requested that FHWA 

provide data to calculate the system 

performance earlier than the annual 

date of August 15, with a few specifying 

that this should be no later than May 1 

of each year or, if no joint UZA target 

is required, then no later than July 1. 

One commenter indicated that the 

prior year’s data in Table VM–3— 

Annual Vehicle Miles and Table MF– 

21—Motor-Fuel Use has been published 

in mid-late October in the past, which 

would conflict with an October 1 

deadline for report submissions. 

Response: The FHWA appreciates 

commenters’ interest in having data 

available as early as possible to support 

State biennial reporting on October 1 of 

each even year. While estimates of 

annual motor fuel volumes distributed 

are not expected to be finalized by 

FHWA until August 15th, States and 

MPOs can develop preliminary 

estimates and forecasts of GHG 

emissions using the values in FHWA’s 

Monthly Motor Fuel Reported by States 

publication, available on the website of 

FHWA’s Office of Highway Policy 

Information, and the State-reported fuel 

sale information. 

In response to the comments 

requesting data earlier than proposed 

and FHWA’s reexamination of when the 

VMT data will be available, FHWA 

revised 23 CFR 490.509(h) as well as 23 

CFR 490.109(d)(1)(vi) and (d)(1)(vii) to 

ensure that State DOTs are able to use 

their most accurate VMT data to 

estimate the NHS share of total on-road 

tailpipe CO2 emissions when reporting 

actual performance and discussing 

progress. These changes were made in 

response to a comment noting that 

HPMS VMT data may not be finalized 

by August 15, as proposed in the NPRM. 

The final rule allows State DOTs to 

use their best available VMT data that 

represents the prior calendar year when 

reporting performance and their GHG 

measure and metric information in the 

biennial reports. See 23 CFR 490.509(h). 

Related changes were made to the State 

DOT metric reporting requirements the 

biennial reports. See 

490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and 

(b)(3)(ii)(I). Because the VMT data used 

by the State DOT when preparing the 

biennial report may not be known to 

FHWA, State DOTs are required to 

provide the values they use to calculate 

the reported metric, and a description of 

the data source(s) used for the VMT 

information they report. Section 

490.511(f)(2) was revised to be 

consistent with the metric reporting 

requirements in 23 CFR 

490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and 

(b)(3)(ii)(I). 

The change to 23 CFR 490.509(h) 

necessitated changes to the data FHWA 

will use in the significant progress 

determination. In 23 CFR 

490.109(d)(1)(vi) and (d)(1)(vii) FHWA 

has specified that for the significant 

progress determination, baseline 

performance will be based on data from 

HPMS as of November 30th of the 

baseline report year, and the reference 

year will be based on HPMS data as of 

November 30, 2023. The FHWA also 

added section 490.109(e)(4)(vii) to 

clarify that the data used must be 

accepted by FHWA by the dates 

specified in section 490.109(d)(1). 

Comments on Accessibility of Fuel 

Sales Data 

Comment: A small number of 

commenters expressed concern at 

MPOs’ inability to access the Fuels & 

FASH dataset and requested more 

guidance on how the data could be 

accessed. One commenter suggested 

using publicly available State data 

instead. Another requested clarification 

on how a State will calculate the 

aggregate fuel consumption by fuel type. 

Response: States are responsible for 

submitting preliminary estimated totals 

of monthly fuel volumes distributed for 

gasoline and ‘‘special fuel’’ (which 

primarily consists of diesel) which are 

due to FHWA 90 days following the end 

of a given month. These estimates are 

made publicly available for each State 

as part of FHWA’s Monthly Motor Fuel 

Report, accessible on the Office of 

Highway Policy Information website. 

Final estimated fuel for a given year are 

adjusted to account for: (1) updated 

monthly fuel volumes distributed for 

gasoline and ‘‘special fuel’’ provided by 

the States, and (2) non-highway use of 

fuels. These estimates will be available 

by August 15 of each reporting year (i.e., 

the following year). 

Comments on Non-Highway Fuel Use 

Comment: A couple of commenters 

asserted a portion of fuel sales are 

consumed off the roadway network, 

which is a circumstance that is likely 

more prevalent in rural areas. These 

commenters asserted that off-highway 

use of fuels would not be accounted for 

in fuel use data provided by FHWA. 

Response: The FHWA uses a 

modeling process to estimate the 

portion of gasoline that is distributed 

and used for non-highway purposes. 

These data are then used to adjust the 

gasoline volume data submitted by the 

States to identify the volumes that are 

used specifically for on-highway 

purposes. In addition, FHWA instructs 

all States not to report non-highway use 

of special fuels, including red dyed 

diesel and kerosene that is untaxed and 

intended for non-highway applications. 

Comments on GHG Emissions Analysis 

Techniques 

Comment: A commenter asserted that 

the effectiveness of the proposed rule 

would be limited by current traffic 

modeling practices. The commenter 

asserted that the final rule would benefit 

from improved data collection and 

analysis techniques, a more 

standardized approach to documenting 

projects within the STIP/TIP and 

ensuring a requirement that emissions 

from induced demand be included in 

modeling. 

Response: The FHWA believes the 

data and methods specified in the 

NPRM are appropriate to evaluate 

performance related to the GHG 

measure. State CO2 estimates are 

calculated by multiplying gallons of fuel 

taxed by each State by the CO2

emissions for each fuel type. The 

FHWA’s Fuels & FASH database-will 

serve as the source of fuel use data since 

it is a national, established, and 

validated source of fuel use information 

as reported by States. The FHWA 

believes that Fuels & FASH provides 

advantages for estimating fuel 

consumption and CO2 emissions 

compared to model-based approaches, 

which by necessity are built on 

simplified mathematical representations 

of transportation networks, travel 

choices, vehicle fuel efficiency, and 

other factors. Fuels sales data implicitly 

accounts for travel demand and fuel 

consumption resulting from 

transportation policies and investments, 

including behavioral changes following 

highway construction (sometimes 

referred to as ‘‘induced demand’’). The 

FHWA recognizes that fuel sales may 

not precisely align with the amount of 

fuel combustion and CO2 emissions 

within the boundaries of a State, 

particularly since drivers may cross 

State lines to purchase fuel. However, 

FHWA believes the data and methods 

for the State DOT metric calculation 

achieve an appropriate balance between 

simplicity and accuracy and will 


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provide a useful way to monitor trends 

over time. 

The FHWA recognizes that MPOs lack 

a data source comparable to Fuels & 

FASH and therefore must estimate CO2

emissions using an approach different 

from the States. The FHWA believes 

that it is appropriate to leave the data 

and metric calculation methods to the 

discretion of MPOs, and that it would be 

unreasonable to specify data collection 

standards or modeling practices, 

particularly since some MPOs do not 

employ technical staff or support travel 

and emissions models. However, FHWA 

has updated the final rule to require 

MPOs that choose a metric calculation 

approach not enumerated in section 

490.511(d) to demonstrate the method 

has valid and useful results. 

Finally, State DOTs and MPOs may 

employ travel models, emissions 

models, and other analytics to support 

transportation planning, programming, 

and the development of GHG reduction 

targets. In so doing, they can consider 

the degree to which their models are 

sensitive to the travel and emissions 

impacts of GHG reduction strategies and 

other decisions, such as future highway 

capacity. However, FHWA believes it is 

not appropriate to specify the models or 

other practices that States and MPOs 

use for these purposes as part of the 

final rule. 

For additional information related to 

the CO2 factor, see the discussion under 

Comments on CO2 Emissions Factor, in 

this section. 

§ 490.511 Calculation of National 

Highway System Performance Metrics 

Comments on State DOT GHG Metric 

Calculation Method 

Comment: Several commenters 

provided input on the calculation of the 

proposed GHG performance measure. A 

few commenters expressed support for 

using existing national data sets for fuel 

sales and VMT data, while a few 

comments offered proposed revisions. 

Alternatives suggested included 

allowing States to propose alternative or 

additional data sets or methodologies 

and requiring States to use one of the 

methods offered for MPOs in the 

proposed rule (i.e., MOVES or FHWA’s 

Energy and Emissions Reduction Policy 

Analysis Tool (EERPAT)). 

Response: The FHWA has retained 

the State DOT metric calculation 

method proposed in the NPRM. This 

approach is based on fuel use data that 

is already collected by States and 

reported to FHWA, ensuring 

comparability between State estimates. 

As noted in response to the previous 

comment, FHWA believes this approach 

provides a more accurate estimate of 

total fuel use and CO2 emissions than 

model-based approaches. The FHWA 

recognizes that this approach includes 

some simplifying assumptions, 

particularly by assuming a similar rate 

of GHG emissions on NHS and non-NHS 

facilities per VMT. While it is expected 

that emissions rates would differ 

somewhat between NHS- and non-NHS 

facilities, FHWA believes that this 

simplifying assumption is justified since 

the difference between emissions rates 

on NHS- and non-NHS facilities would 

be largely constant from year-to-year 

and similar across States, providing a 

consistent way to monitor performance. 

For additional information on how 

the MPO’s metric calculation method is 

selected and documented, see the 

discussion under Comments on Mutual 

Agreement on MPO Metric Calculation 

Method by State DOTs and MPOs, 

which is part of this section. 

Comments on MPO GHG Metric 

Calculation Method 

Comment: Several commenters 

addressed MPO metric calculation 

methodology and reporting. 

Approximately half of these 

commenters supported preserving 

MPOs’ flexibility in calculating the GHG 

metric. In contrast, a couple of 

commenters supported requiring MPOs 

to use the MOVES model to calculate 

GHG emissions, while one asserted that 

FHWA should provide the data needed 

for MPOs to calculate a metric for the 

GHG measure. In addition, one 

commenter questioned the requirement 

for MPOs to calculate and report 

tailpipe CO2 emissions on all roads, 

noting the MPO may choose a 

methodology that allows for calculating 

the GHG metric for NHS roads directly. 

Response: Upon consideration of 

comments, FHWA is preserving MPOs’ 

flexibility to use a range of different 

approaches in calculating the metric for 

the GHG measure. The FHWA 

recognizes that technical capabilities 

vary across MPOs and that some MPOs 

may not support a travel demand model 

or be required to use EPA’s MOVES 

model. The FHWA also appreciates the 

observation that some MPOs may 

choose to calculate tailpipe CO2

emissions on the NHS facilities directly. 

This is inherently different from State 

DOTs, which are required to calculate 

CO2 emissions for all roads before 

estimating the proportion of emissions 

associated with the NHS. Accordingly, 

in the final rule, FHWA has removed 

the requirement for MPOs to report 

tailpipe CO2 emissions for all roads. 

Comments on Mutual Agreement on 

MPO Metric Calculation Method by 

State DOTs and MPOs 

Comment: A small number of 

commenters addressed the requirement 

for the MPO metric calculation method 

to be mutually agreed upon by both the 

State DOT and the MPO. A few 

commenters opposed the requirement 

for the MPO to obtain concurrence on 

the metric calculation method. 

Similarly, one commenter 

recommended that an MPO be allowed 

to use, without the need to obtain 

additional approvals, any regional data, 

models, and methodologies that is 

already used to measure GHG for 

purposes of air quality conformity 

modeling or other GHG performance 

measures. One commenter 

recommended the metric calculation 

method be covered in the ‘‘written 

provisions’’ section of the system 

performance report. 

Response: The FHWA agrees with 

commenters that the requirement for 

MPOs and States to agree on the MPO’s 

metric calculation method creates 

burden for both groups. In response to 

the comments, FHWA is not requiring 

the MPO’s metric calculation method to 

be mutually agreed upon by the State 

DOT and MPO, but MPOs are 

encouraged to coordinate with the State 

DOT on the data used to the maximum 

extent practicable. 

The FHWA has instead added a 

requirement to section 490.107(c)(2)(ii) 

that if the metric calculation method 

used by the MPO is not specified in 

section 490.511(d), the MPO must 

demonstrate the method’s validity and 

usefulness in measuring transportationrelated CO2 emissions in the system 

performance report. The FHWA believes 

that this change will be sufficient to 

ensure accountability in the methods 

MPOs use to calculate the GHG metric, 

absent the requirement for mutual 

agreement on the method with State 

DOTs. Consistent with FHWA’s 

collaboration and coordination 

requirements in 23 CFR part 450, FHWA 

encourages MPOs and the State DOTs to 

work together in identifying methods, 

tools, and data the MPO’s can use to 

calculate the MPO’s metric for the GHG 

measure. 

For additional information related to 

reporting of the MPO’s metric, see the 

discussion under Comments on MPO 

Report Content, in the Section-bySection Discussion for section 490.107. 


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19 Interagency Working Group on Social Cost of 

Greenhouse Gases, U.S. Government. ‘‘Technical 

Support Document: Social Cost of Carbon, Methane, 

and Nitrous Oxide Interim Estimates under 

Executive Order 13990’’ (February 2021), available 

at https://www.whitehouse.gov/wp-content/ 

uploads/2021/02/TechnicalSupportDocument_

SocialCostofCarbonMethaneNitrousOxide.pdf. 

20 Interagency Working Group on Social Cost of 

Greenhouse Gases, U.S. Government. ‘‘Technical 

Support Document: Social Cost of Carbon, Methane, 

and Nitrous Oxide Interim Estimates under 

Executive Order 13990’’ (February 2021), available 

at https://www.whitehouse.gov/wp-content/ 

uploads/2021/02/TechnicalSupportDocument_

SocialCostofCarbonMethaneNitrousOxide.pdf. 

Comments on the RIA 

Comments on the Estimated Cost of the 

Regulation 

Comment: Many commenters 

discussed cost estimates from the RIA. 

Many commenters asserted that the RIA 

underestimated direct implementation 

costs of the measure and provided 

examples of costs that they believe were 

underestimated. Examples cited include 

the time and level of expertise needed 

to establish targets, conduct biennial 

reporting, conduct stakeholder 

engagement, develop and maintain 

models, and achieve coordination 

between DOTs, MPOs, and State 

agencies. Several commenters also 

asserted that achieving national GHG 

reduction goals would require 

significant changes to transportation 

investments that would carry significant 

monetary costs and would require 

significant time to implement. A few 

commenters also asserted that achieving 

GHG reductions through strategies to 

reduce on-road travel activity would 

create further social and economic costs 

including increased congestion and 

travel times. Another commenter 

asserted that reducing on-road GHG 

emissions would reduce the 

consumption of traditionally taxed fuels 

and require the establishment of a 

different highway finance revenue 

model that is not based on the 

consumption of fossil fuels. 

In contrast, several commenters 

asserted that the burdens of the 

proposed performance measure would 

be negligible. These commenters noted 

that States and MPOs have already 

established processes and partnerships 

under the TPM framework and that staff 

efforts to quantify and report GHG 

emissions on the NHS would not be 

expected to create significant cost 

burden and are in line with existing 

performance measures. 

Other commenters noted that work 

performed in support of the GHG 

measure would not support other 

aspects State DOTs’ and MPOs’ 

missions in ways that would mitigate 

net costs of the proposed rule. One State 

DOT also asked for clarification on how 

the total costs of compliance in time and 

cost is calculated. 

Response: The FHWA has reexamined 

the RIA considering public comments 

and any updated information, and 

FHWA has determined that the RIA cost 

estimates should be primarily 

unchanged from the RIA in support of 

the NPRM, with a small reduction in 

estimated burden based on the 

elimination of the NPRM requirement 

for States and MPOs to estimate CO2

emissions for all roads in addition to the 

NHS. The FHWA recognizes 

commenters’ observations that many 

State DOTs and MPOs will need to 

develop capacity to address GHG 

emissions through interagency 

coordination, stakeholder engagement, 

and the consideration of strategies to 

support GHG reduction targets. The 

FHWA believes that these examples of 

costs were addressed through the NPRM 

RIA labor hour estimates for section 

490.105, which assume that the level of 

effort for setting targets in the first 

reporting period will be approximately 

twice that of subsequent reporting 

periods. The FHWA has included in the 

RIA a break-even analysis of the CO2

reductions from the rule that would be 

necessary to equal its costs. This 

analysis determined that the required 

reductions would represent a very small 

proportion of total transportation CO2

emissions. 

In addition, FHWA reiterates State 

DOTs and MPOs will not experience 

costs from achieving GHG reduction 

targets since FHWA is not requiring 

specific declining target values be 

established, nor is it mandating 

penalties for failing to meet the targets 

established. 

The FHWA recognizes that changes in 

fuel use may impact highway funding. 

However, as this rulemaking does not 

require any reductions in fuel use, this 

issue is outside of the scope of this 

rulemaking, nor does FHWA have any 

authority to change the statutory 

funding scheme established by 

Congress. 

Comments on the Use of the Social Cost 

of Carbon 

Comment: Several commenters raised 

concerns about the use of the social cost 

of carbon dioxide (SC–CO2) to conduct 

a ‘‘break-even’’ analysis of CO2

reductions required for the proposed 

measure to equal its costs. These 

commenters asserted that use of the 

Interagency Working Group (IWG) on 

Social Cost of Greenhouse Gases 19

‘‘interim’’ social costs of GHGs overstate 

damages from GHG emissions. In 

contrast, several commenters noted the 

social cost of carbon likely significantly 

underestimates the actual cost of 

climate damages caused by GHG 

emissions because important categories 

of climate damages cannot be 

quantified. 

Response: As discussed further in the 

RIA for the final rule, the IWG on Social 

Cost of Greenhouse Gases published 

interim estimated for the SC–CO2 per 

ton of carbon emissions for each year 

from 2020 to 2050. As noted by the 

IWG’s technical support document 

prepared under E.O. 13990, the SC–CO2

framework in principle can capture all 

climate change impacts, including (but 

not limited to) changes in net 

agricultural productivity, human health 

effects, property damage from increased 

flood risk natural disasters, disruption 

of energy systems, risk of conflict, 

environmental migration, and the value 

of ecosystem services. The SC–CO2

estimates used in the break-even 

analysis for this rule were developed 

over many years, using transparent 

process, peer-reviewed methodologies, 

the best science available at the time of 

that process, and with input from the 

public. However, many important 

categories of climate damages cannot 

currently be fully quantified and 

monetized, and so the SC–CO2 values 

very likely underestimate the climate 

damages caused by GHG pollution. The 

IWG’s technical support document 

further notes that the SC–CO2 as 

estimated should reflect the societal 

value of reducing CO2 emissions by one 

metric ton, and that the SC–CO2 is the 

theoretically appropriate value to use in 

conducting economic analyses of 

policies that affect CO2 emissions.20 The 

DOT is an IWG member, and FHWA has 

reviewed the technical support 

document and has determined that the 

recommended values are appropriate for 

use in the break-even analysis in the 

RIA. 

VIII. Rulemaking Analyses and Notices 

A. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

13563 (Improving Regulation and 

Regulatory Review), and DOT 

Regulatory Policies and Procedures 

The Office of Management and Budget 

(OMB) has determined that this 

rulemaking is a significant regulatory 

action within the meaning of E.O. 

12866, as amended by E.O. 14094 

(‘‘Modernizing Regulatory Review’’), 

because it raises legal or policy issues 

for which centralized review would 

meaningfully further the President’s 


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priorities or the principles set forth E.O. 

12866. The rule will not have an annual 

effect on the economy of $200 million 

or more. The rule will not adversely 

affect in a material way the economy, 

any sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

territorial, or tribal governments or 

communities. In addition, the changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. As described 

above, FHWA estimates that total costs 

associated with this rule, between 2023 

and 2032, will be $10.8 million, 

discounted at 7 percent, and $12.7 

million discounted at 3 percent (these 

figures are estimated in 2020 dollars). 

On an annual basis, the total costs 

would be $1,535,045 discounted at 7 

percent and $1,494,406 discounted at 3 

percent. The FHWA is unable to 

quantify the benefits of the rulemaking; 

consequently, FHWA describes the 

expected benefits qualitatively in the 

preamble and the RIA. These benefits 

include potentially significant 

reductions in GHG emissions resulting 

from decisions and actions based on 

greater consideration of GHG emissions 

in transportation planning, public 

awareness of GHG emissions trends, and 

better information on the impact of 

transportation decisions on GHG 

emissions. While many of the benefits 

in the proposed rule are difficult to 

quantify, FHWA believes that the 

benefits justify the costs. As discussed 

in greater detail in the RIA, FHWA 

estimates that benefits of this rule 

would exceed its costs with a reduction 

of less than 0.01 percent of the average 

annual amount of CO2 emissions from 

U.S. transportation sources in 2019, 

based on a range of discount rates used 

to estimate the social cost of CO2 and 

the 7 and 3 percent discount rates used 

to estimate the total costs of the final 

rule. The full RIA is available in the 

docket. 

B. Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612), FHWA has evaluated the 

effects of this rule on small entities and 

has determined that it is not anticipated 

to have a significant economic impact 

on a substantial number of small 

entities. The rule will affect two types 

of entities: State governments and 

MPOs. State governments are not 

included in the definition of small 

entity set forth in 5 U.S.C. 601. 

Metropolitan planning organizations are 

considered governmental jurisdictions, 

and to qualify as a small entity they 

would need to serve fewer than 50,000 

people. See 5 U.S.C. 601(5). 

Metropolitan planning organizations are 

designated to serve UZAs with 

populations of 50,000 or more. See 23 

U.S.C. 134(d)(1). Therefore, FHWA 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

C. Unfunded Mandates Reform Act of 

1995 

This rule would not impose unfunded 

mandates as defined by the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4, 109 Stat. 48). The Unfunded 

Mandates Reform Act of 1995 (section 

202(a)) requires us to prepare a written 

statement, which includes estimates of 

anticipated impacts, before proposing 

‘‘any rule that includes any Federal 

mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

(adjusted annually for inflation) in any 

one year.’’ The current threshold after 

adjustment for inflation is $177 million, 

using the most current (2022) Implicit 

Price Deflator for the Gross Domestic 

Product. This rule will not result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $177 million or more 

in any one year (2 U.S.C. 1532). In 

addition, the definition of ‘‘Federal 

Mandate’’ in the Unfunded Mandates 

Reform Act excludes financial 

assistance of the type in which State, 

local, or Tribal governments have 

authority to adjust their participation in 

the program in accordance with changes 

made in the program by the Federal 

Government. The Federal-aid highway 

program permits this type of flexibility. 

D. Executive Order 13132 (Federalism 

Assessment) 

This rule has been analyzed in 

accordance with the principles and 

criteria contained in E.O. 13132, and 

FHWA has determined that this rule 

will not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. The FHWA 

also has determined that this rule will 

not preempt any State law or State 

regulation or affect the States’ ability to 

discharge traditional State governmental 

functions. 

E. Paperwork Reduction Act of 1995 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from OMB for each collection of 

information they conduct, sponsor, or 

require through regulations. The FHWA 

has determined that this rule contains 

collection of information requirements 

for the purposes of the PRA. This rule 

introduces a GHG performance measure 

that will be implemented as part of the 

overarching TPM regulations in 23 CFR 

part 490, which includes State DOT 

reporting on performance. The 

collection of State DOT reports in 

support of 23 CFR 490.107 is covered by 

OMB Control No. 2125–0656. 

The FHWA has analyzed this rule 

under the PRA and has determined the 

following: 

Respondents: 52 State DOTs. 

Frequency: Single State Initial GHG 

Report, and ongoing biennial reporting. 

Estimated Average Burden per 

Response: Approximately 88 hours to 

complete and submit the required 

report, or 44 hours annually. 

Estimated Total Annual Burden 

Hours: Approximately 2,288 hours 

annually. 

In addition, MPO coordination and 

reporting activities are covered by OMB 

Control No. 2132–0529, Metropolitan 

and Statewide and Nonmetropolitan 

Transportation Planning. 

F. National Environmental Policy Act 

The FHWA has analyzed this rule 

pursuant to the NEPA and has 

determined that it is categorically 

excluded under 23 CFR 771.117(c)(20), 

which applies to the promulgation of 

rules, regulations, and directives. 

Categorically excluded actions meet the 

criteria for categorical exclusions under 

the Council on Environmental Quality 

regulations and under 23 CFR 

771.117(a) and normally do not require 

any further NEPA approvals by FHWA. 

This rule will establish in FHWA 

regulations a performance measure for 

on-road CO2 emissions on the NHS for 

use by States and MPOs in measuring 

transportation performance. The FHWA 

does not anticipate any adverse 

environmental impacts from this rule, 

the purpose of which is to inform 

decisionmaking about the transportation 

sector’s contribution to GHG emissions, 

and thereby contribute to environmental 

sustainability; moreover, no unusual 

circumstances are present under 23 CFR 

771.117(b). 

G. Executive Order 13175 (Tribal 

Consultation) 

The FHWA has analyzed this rule in 

accordance with the principles and 

criteria contained in E.O. 13175, 

‘‘Consultation and Coordination with 

Indian Tribal Governments.’’ The rule 

will implement statutory requirements 

under 23 U.S.C. 150(c)(3)(A)(ii)(IV)–(V) 

to establish measures for States to assess 

the performance of the Interstate and 


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non-Interstate NHS, which FHWA 

interprets to include environmental 

performance. This measure establishes 

requirements only for States and MPOs 

that receive Title 23 Federal-aid 

highway funds and have NHS mileage 

within their jurisdictions; it would not 

have direct effects on one or more 

Indian Tribes, would not impose 

substantial direct compliance costs on 

Indian Tribal governments, and would 

not preempt Tribal laws. Accordingly, 

the funding and consultation 

requirements of E.O. 13175 do not apply 

and a Tribal summary impact statement 

is not required. 

As noted above, FHWA anticipates 

the benefits from this rulemaking 

include potentially significant 

reductions in GHG emissions resulting 

from decisions and actions based on 

greater consideration of GHG emissions 

in transportation planning by States and 

MPOs, public awareness of GHG 

emissions trends, and better information 

on the impact of transportation 

decisions on GHG emissions. Although 

this rulemaking does not apply to 

Tribes, FHWA expects that Tribes 

would benefit from potential reductions 

in GHG emissions that result from State 

and MPO implementation of this 

rulemaking. 

H. Executive Order 12898 

(Environmental Justice) 

The E.O. 12898 requires that each 

Federal Agency make achieving 

environmental justice part of its mission 

by identifying and addressing, as 

appropriate, disproportionately high 

and adverse human health or 

environmental effects of its programs, 

policies, and activities on minorities 

and low-income populations. The 

FHWA has determined that this rule 

does not raise any environmental justice 

issues. 

I. Regulation Identifier Number 

A RIN is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross reference this action with 

the Unified Agenda. 

List of Subjects in 23 CFR Part 490 

Bridges, Highway safety, Highways 

and roads, Reporting and recordkeeping 

requirements. 

Issued under authority delegated in 49 CFR 

1.81 and 1.85. 

Shailen P. Bhatt, 

Administrator, Federal Highway 

Administration. 

In consideration of the foregoing, 

FHWA amends Title 23, Code of Federal 

Regulations by revising part 490, to read 

as follows: 

PART 490—NATIONAL 

PERFORMANCE MANAGEMENT 

MEASURES 

■ 1. The authority citation for part 490 

continues to read as follows: 

Authority: 23 U.S.C. 134, 135, 148(i), and 

150; 49 CFR 1.85. 

■ 2. Amend § 490.101 by adding in 

alphabetical order the definition of 

‘‘Fuels and Financial Analysis System— 

Highways (Fuels & FASH)’’ to read as 

follows: 

§ 490.101 Definitions. 

* * * * * 

Fuels and Financial Analysis 

System—Highways (Fuels & FASH) as 

used in this part means FHWA’s system 

of record for motor fuel, highway 

program funding, licensed drivers, and 

registered vehicles data. 

* * * * * 

■ 3. Amend § 490.105 by: 

■ a. Adding paragraph (c)(5); 

■ b. Revising paragraph (d) introductory 

text, and adding paragraphs (d)(1)(v) 

and (d)(4); 

■ c. Adding paragraphs (e)(1)(i), 

(e)(1)(ii), and (e)(4)(i)(C), revising 

paragraph (e)(4)(iii), and adding 

paragraph (e)(10); and 

■ d. Revising paragraphs (f)(1)(i) and 

(f)(3), and adding paragraph (f)(10). 

The additions and revisions read as 

follows: 

§ 490.105 Establishment of performance 

targets. 

* * * * * 

(c) * * * 

(5) 490.507(b) for greenhouse gas 

(GHG) emissions on the NHS; 

* * * * * 

(d) Target scope. Targets established 

by State DOTs and MPOs shall, 

regardless of ownership, represent the 

transportation network or geographic 

area, including bridges that cross State 

borders, that are applicable to the 

measures as specified in paragraphs 

(d)(1), (2), and (4) of this section. 

(1) * * * 

(v) 490.503(a)(2) for the GHG measure 

specified in § 490.507(b); 

* * * * * 

(4) MPOs shall establish a joint target 

for the GHG measure specified in 

§ 490.507(b), for each urbanized area 

that meets the criteria specified in 

paragraph (f)(10) of this section. The 

joint target shall represent the 

performance of the transportation 

network specified in § 490.503(a)(2). 

(e) * * * 

(1) Schedule. State DOTs shall 

establish targets not later than the dates 

provided in paragraphs (e)(1)(i) and 

(e)(1)(ii) of this section, and for each 

performance period thereafter, in a 

manner that allows for the time needed 

to meet the requirements specified in 

this section and so that the final targets 

are submitted to FHWA by the due date 

provided in § 490.107(b). 

(i) State DOTs shall establish initial 

targets not later than May 20, 2018, 

except as provided in paragraph 

(e)(1)(ii) of this section. 

(ii) State DOTs shall establish initial 

targets for the GHG measure identified 

in § 490.507(b) not later than February 

1, 2024. 

* * * * * 

(4) * * * 

(i) * * * 

(C) For the GHG measure in 

§ 490.105(c)(5), the performance period 

will begin on January 1, 2022 and will 

extend for a duration of 4-years. 

Subsequent performance periods will 

begin as described in paragraph (4)(i)(A) 

of this section. 

* * * * * 

(iii) Except as provided in paragraphs 

(e)(7) and (e)(8)(v), and (e)(10)(i) of this 

section, State DOTs shall establish 2- 

year targets that reflect the anticipated 

condition/performance level at the 

midpoint of each performance period 

for the measures in paragraphs (c)(1) 

through (7) of this section, and the 

anticipated cumulative emissions 

reduction to be reported for the first 2 

years of a performance period by 

applicable criteria pollutant and 

precursor for the measure in paragraph 

(c)(8) of this section. 

* * * * * 

(10) Targets for the GHG measure. 

Targets established for the GHG measure 

in paragraph (c)(5) of this section shall 

be declining targets for reducing tailpipe 

CO2 emissions on the NHS. 

(i) The following requirements apply 

only to the targets established for the 

State Initial GHG Report, described in 

§ 490.107(d), and 2026 Full Performance 

Period Progress Report, described in 

§ 490.107(b)(3), for the measure in 

§ 490.507(b): 

(A) State DOTs are exempt from the 

required 2-year target described in 

paragraph (e)(4)(iii) of this section. 

(B) State DOTs shall establish a 4-year 

target, required under paragraph 


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Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 85391 

(e)(4)(iv) of this section, and report this 

target in their 2024 State Initial GHG 

Report, required under § 490.107(d). 

(C) The performance for the reference 

year shall be used as the baseline 

performance. 

(f) * * * 

(1) * * * 

(i) The MPOs shall establish 4-year 

targets, described in paragraph (e)(4)(iv) 

of this section, for all applicable 

measures, described in paragraphs (c) 

and (d) of this section. For the GHG 

measure described in (c)(5) of this 

section, the targets established shall be 

declining targets for reducing tailpipe 

CO2 emissions on the NHS. 

* * * * * 

(3) Target establishment options. For 

each performance measure identified in 

paragraph (c) of this section, except the 

CMAQ Traffic Congestion measures in 

paragraph (f)(5) of this section, MPOs 

meeting the criteria under paragraph 

(f)(6)(iii) of this section for Total 

Emissions Reduction measure, the 

MPOs shall establish targets for the 

metropolitan planning area by either: 

(i) Agreeing to plan and program 

projects so that they contribute toward 

the accomplishment of the relevant 

State DOT target for that performance 

measure; or 

(ii) Committing to a quantifiable target 

for that performance measure for their 

metropolitan planning area. 

* * * * * 

(10) Joint Targets for the GHG 

Measure. Where an urbanized area 

contains mainline highways on the 

NHS, and any portion of that urbanized 

area is overlapped by the metropolitan 

planning area boundaries of two or more 

MPOs, those MPOs shall collectively 

establish a single joint 4-year target for 

that urbanized area, described in 

paragraph (e)(4)(iv) of this section. The 

target established shall be a declining 

target for reducing tailpipe CO2

emissions on the NHS. This joint target 

is in addition to the targets for the 

metropolitan planning area required in 

paragraph (f)(1)(i) of this section. 

(i) The NHS designations and 

urbanized area data shall be from the 

data contained in HPMS 1 year before 

the State DOT Baseline Performance 

Period Report is due to FHWA. 

(ii) Only one target shall be 

established for the entirety of each 

applicable urbanized area regardless of 

roadway ownership. In accordance with 

paragraph (f)(9) of this section, each 

MPO shall report the same joint target 

for the urbanized area. 

(iii) The target established for each 

urbanized area shall represent a 

quantifiable target for that urbanized 

area. 

■ 4. Amend § 490.107 by 

■ a. Revising paragraphs (a)(1) and 

(b)(1)(i), and adding paragraph 

(b)(1)(ii)(H); 

■ b. Revising paragraph (b)(2)(i) and 

adding paragraph (b)(2)(ii)(J); 

■ c. Revising paragraph (b)(3)(i) and 

adding paragraph (b)(3)(ii)(I); 

■ d. Revising paragraph (c)(2); and 

■ e. Adding paragraph (d). 

The additions and revisions read as 

follows: 

§ 490.107 Reporting on performance 

targets. 

(a) * * * 

(1) All State DOTs and MPOs shall 

report in accordance with the schedule 

and content requirements under 

paragraphs (b), (c), and (d) of this 

section, respectively. 

* * * * * 

(b) * * * 

(1) * * * 

(i) Schedule. State DOTs shall submit 

a Baseline Performance Period Report to 

FHWA by October 1st of the first year 

in a performance period. State DOTs 

shall submit their first Baseline 

Performance Period Report to FHWA by 

October 1, 2018, and subsequent 

Baseline Performance Period Reports to 

FHWA by October 1st every 4 years 

thereafter, except for the GHG measure 

specified in § 490.105(c)(5). For the 

Baseline Performance Period Report, 

State DOTs shall submit information 

related to the GHG measure in the report 

due to FHWA by October 1, 2026, and 

every 4 years thereafter. 

(ii) * * * 

(H) GHG metric and metric 

information for the GHG measure. The 

metric and the individual values used to 

calculate the GHG metric, as described 

in § 490.511(c), for the calendar year 

preceding the reporting year, and a 

description of the data source(s) used 

for the VMT information. 

* * * * * 

(2) * * * 

(i) Schedule. State DOTs shall submit 

a Mid Performance Period Progress 

Report to FHWA by October 1st of the 

third year in a performance period. State 

DOTs shall submit their first Mid 

Performance Period Progress Report to 

FHWA by October 1, 2020, and 

subsequent Mid Performance Period 

Progress Reports to FHWA by October 

1st every 4 years thereafter, except for 

the GHG measure specified in 

§ 490.105(c)(5). For the Mid 

Performance Period Progress Report, the 

State DOTs shall submit information 

related to the GHG measure in the report 

due to FHWA by October 1, 2028, and 

every 4 years thereafter. 

(ii) * * * 

(J) GHG metric and metric information 

for the GHG measure. The metric and 

the individual values used to calculate 

the GHG metric, as described in 

§ 490.511(c), for the calendar year 

preceding the reporting year, and a 

description of the data source(s) used 

for the VMT information. 

* * * * * 

(b) * * * 

(3) * * * 

(i) Schedule. State DOTs shall submit 

a progress report on the full 

performance period to FHWA by 

October 1st of the first year following 

the reference performance period. State 

DOTs shall submit their first Full 

Performance Period Progress Report to 

FHWA by October 1, 2022, and 

subsequent Full Performance Period 

Progress Reports to FHWA by October 

1st every 4 years thereafter, except for 

the GHG measure specified in 

§ 490.105(c)(5). For the Full 

Performance Period Progress Report, 

State DOTs shall submit information 

related to the GHG measure in the report 

due to FHWA by October 1, 2026, and 

every 4 years thereafter. 

(ii) * * * 

(I) GHG metric and metric 

information for the GHG measure. The 

metric and the individual values used to 

calculate the GHG metric, as described 

in § 490.511(c), for the calendar year 

preceding the reporting year, and a 

description of the data source(s) used 

for the VMT information. 

(c) * * * 

(2) The MPOs shall report baseline 

condition/performance and progress 

toward the achievement of their targets 

in the system performance report in the 

metropolitan transportation plan in 

accordance with part 450 of this 

chapter. For the GHG measure in 

§ 490.105(c)(5), the MPOs shall also 

report: 

(i) The calculation of annual tailpipe 

CO2 emissions for the NHS, and may 

include all public roads, described in 

§ 490.511(f), for the period between the 

current and previous system 

performance report, and the reference 

year. 

(ii) A description of the metric 

calculation method(s) used, as described 

in § 490.511(d). When the method(s) 

used are not specified in § 490.511(d), 

the MPO must include information 

demonstrating the method(s) has valid 

and useful results for measuring 

transportation related CO2. 

* * * * * 

(d) State Initial GHG Report. For the 

GHG measure in § 490.105(c)(5), State 

DOTs shall submit an Initial GHG 

Report by February 1, 2024. 


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(1) The State Initial GHG Report shall 

include: 

(i) Targets. The 4-year target for the 

performance period, as required in 

§ 490.105(e), and a discussion, to the 

maximum extent practicable, of the 

basis for the established target; 

(ii) Baseline performance. 

Performance derived from the data 

collected for the reference year, for the 

4-year target required under paragraph 

(d)(1) of this section; 

(iii) Relationship with other 

performance expectations. A 

discussion, to the maximum extent 

practicable, on how the established 

target in paragraph (d)(1) of this section 

support expectations documented in 

longer range plans, such as the State 

asset management plan required by 23 

U.S.C. 119(e) and the long-range 

statewide transportation plan provided 

in part 450 of this chapter; and 

(iv) GHG metric and metric 

information for the GHG measure. The 

metric and the individual values used to 

calculate the GHG metric, as described 

in § 490.511(c), for the reference year. 

(2) For the State Initial GHG Report, 

the State DOT shall use the following 

data to calculate the GHG metric, 

described in § 490.511(c), for the 

reference year. 

(i) Data published by FHWA for the 

CO2 factors for each on-road fuel type 

associated with the reference year. 

(ii) The fuel consumed data shall meet 

the requirements in § 490.509(g) for the 

reference year. 

(iii) The VMT data shall meet the 

requirements of § 490.509(h) for the 

reference year. 

■ 5. Amend § 490.109 by adding 

paragraph (d)(1)(v), revising paragraph 

(d)(1)(vi), and adding paragraphs 

(d)(1)(vii) and (viii), (e)(4)(vi) and (vii), 

(e)(6), and (f)(1)(v) to read as follows: 

§ 490.109 Assessing significant progress 

toward achieving the performance targets 

for the National Highway Performance 

Program and the National Highway Freight 

Program. 

* * * * * 

(d) * * * 

(1) * * * 

(v) Data contained within Fuels & 

FASH on August 15th of the year in 

which the significant progress 

determination is made that represents 

performance from the prior year for 

targets established for the GHG measure 

in § 490.105(c)(5), and data from Fuels 

& FASH that represents performance for 

the reference year. 

(vi) Baseline condition/performance 

data contained in Fuels & FASH, HPMS, 

and NBI of the year in which the 

Baseline Period Performance Report is 

due to FHWA that represents baseline 

conditions/performances for the 

performance period for the measures in 

§§ 490.105(c)(1) through (5). For the 

GHG measure, specified in 

§ 490.105(c)(5), the baseline 

performance data from HPMS shall be 

the data contained within HPMS on 

November 30th of the year the Baseline 

Period Performance Report is due to 

FHWA. 

(vii) Data contained within the HPMS 

on November 30th of the year in which 

the significant progress determination is 

made that represents performance from 

the prior year for targets established for 

the GHG measure specified in 

§ 490.105(c)(5), and HPMS data as of 

November 30, 2023 that represents 

performance for the reference year. 

(viii) The CO2 factor specified in 

§ 490.509(f) for the baseline 

performance, prior year, and reference 

year for targets established for the GHG 

measure specified in § 490.105(c)(5). 

* * * * * 

(e) * * * 

(4) * * * 

(vi) A State DOT’s reported data are 

not accepted in the Fuels & FASH, by 

the data extraction date specified in 

paragraph (d)(1) of this section for the 

GHG measure in § 490.105(c)(5). 

(vii) A State DOT’s reported data are 

not accepted in the HPMS by the data 

extraction date specified in paragraph 

(d)(1) of this section for the GHG 

measure in § 490.105(c)(5). 

* * * * * 

(6) Phase-in of new requirements for 

the GHG Measure. The following 

requirements shall only apply to the 

GHG targets, described in § 490.513(d), 

and the significant progress 

determination conducted immediately 

after the submittal of the 2024 Mid 

Performance Period Progress Report, 

described in § 490.107(b)(2): 

(i) Consistent with § 490.105(e)(10)(i), 

State DOTs are not required to establish 

a 2-year target, and, consistent with 

490.107(b)(2), State DOTs will not 

submit information related to the GHG 

measure in the 2024 Mid Performance 

Period Progress Report. 

(ii) At the midpoint of the 

performance period, FHWA shall not 

make a determination of significant 

progress toward the achievement of 2- 

year targets for the GHG measure; and 

(iii) The FHWA will classify the 

assessment of progress toward the 

achievement of targets in paragraph 

(e)(6)(ii) of this section as ‘‘progress not 

determined’’ and they will be excluded 

from the requirement under paragraph 

(e)(2) of this section. 

(f) * * * 

(1) * * * 

(v) If significant progress is not made 

for the target established for the GHG 

measure in § 490.105(c)(5), then the 

State DOT shall document the actions it 

will take to achieve the GHG 

performance target. 

* * * * * 

Subpart E—National Performance 

Management Measures To Assess 

Performance of the National Highway 

System 

■ 6. Amend § 490.503 by adding 

paragraph (a)(2) to read as follows: 

§ 490.503 Applicability. 

(a) * * * 

(2) The Greenhouse Gas (GHG) 

measure in § 490.507(b) is applicable to 

all mainline highways on the Interstate 

and non-Interstate NHS. 

* * * * * 

■ 7. Amend § 490.505 by adding in 

alphabetical order definitions of 

‘‘Greenhouse gas’’, and ‘‘Reference year’’ 

to read as follows: 

§ 490.505 Definitions. 

* * * * * 

Greenhouse gas (GHG) is any gas that 

absorbs infrared radiation (traps heat) in 

the atmosphere. Approximately 97 

percent of on-road GHG emissions are 

carbon dioxide (CO2) from burning 

fossil fuel. Other transportation GHGs 

are methane (CH4), nitrous oxide (N2O), 

and hydrofluorocarbons (HFCs). 

* * * * * 

Reference year is calendar year 2022 

for the purpose of the GHG measure. 

* * * * * 

■ 8. Amend § 490.507 by revising the 

introductory text and adding paragraph 

(b) to read as follows: 

§ 490.507 National performance 

management measures for system 

performance. 

There are three performance measures 

to assess the performance of the 

Interstate System and the performance 

of the non-Interstate NHS for the 

purpose of carrying out the National 

Highway Performance Program (referred 

to collectively as the NHS Performance 

measures). 

* * * * * 

(b) One measure is used to assess 

GHG emissions, which is the percent 

change in tailpipe CO2 emissions on the 

NHS compared to the reference year 

(referred to as the GHG measure). 

■ 9. Amend § 490.509 by adding 

paragraphs (f) through (h) to read as 

follows: 


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Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 85393 

§ 490.509 Data requirements. 

* * * * * 

(f) The FHWA will post on the FHWA 

website, no later than August 15th of 

each reporting year, the CO2 factors for 

each on-road fuel type that will be used 

to calculate the GHG metric for the GHG 

measure in § 490.105(c)(5). 

(g) Fuel sales information needed to 

calculate the fuel consumed for the GHG 

measure in § 490.507(b) shall: 

(1) Represent the total number of 

gallons of fuel consumed by fuel type; 

and 

(2) Be based on fuels sales data for the 

prior calendar year, and reported to 

Fuels & FASH. 

(h) Annual vehicle miles traveled 

(VMT) needed to calculate the GHG 

measure in § 490.507(b) shall come from 

the best available data that represents 

the prior calendar year and is 

consistent, to the maximum extent 

practicable, with data submitted to 

HPMS. The VMT data needed to 

calculate the GHG metric in § 490.511(c) 

for the reference year, shall be the 

HPMS data as of November 30, 2023. 

■ 10. Amend § 490.511 by adding 

paragraphs (a)(2), (c), (d), and (f) to read 

as follows: 

§ 490.511 Calculation of National Highway 

System performance metrics. 

(a) * * * 

(2) Annual Total Tailpipe CO2

Emissions on the NHS for the GHG 

measure in § 490.507(b) (referred to as 

the GHG metric). 

* * * * * 

(c) Tailpipe CO2 emissions on the 

NHS for a given year shall be computed 

in million metric tons (mmt) and 

rounded to the nearest hundredth as 

follows: 

Where: 

(Tailpipe CO2 Emissions on NHS)CY = Total 

tailpipe CO2 emissions on the NHS in a 

calendar year (expressed in mmt, and 

rounded to the nearest hundredth); 

T = the total number of on-road fuel types; 

t = an on-road fuel type; 

(Fuel Consumed)t = the quantity of total 

annual fuel consumed for on-road fuel 

type ’’t’’ (to the nearest thousand 

gallons); 

(CO2 Factor)t = is the amount of CO2 released 

per unit of fuel consumed for on-road 

fuel type ‘‘t’’; 

NHS VMT = annual total vehicle-miles 

traveled on NHS (to the nearest one 

million vehicle-miles); and 

Total VMT = annual total vehicle-miles 

traveled on all public roads (to the 

nearest one million vehicle-miles). 

(d) For the GHG measure specified in 

§ 490.507(b), MPOs are granted 

additional flexibility in how they 

calculate the GHG metric, described in 

§ 490.511(a)(2). MPOs may use the MPO 

share of the State’s VMT as a proxy for 

the MPO share of CO2 emissions in the 

State, VMT estimates along with 

MOVES 1 emissions factors, FHWA’s 

Energy and Emissions Reduction Policy 

Analysis Tool (EERPAT) model, or other 

method the MPO can demonstrate has 

valid and useful results for CO2

measurement. 

* * * * * 

(f) Tailpipe CO2 emissions generated 

by on-road sources travelling on the 

NHS (the GHG metric), and generated by 

on-road sources travelling on all 

roadways (the step in the calculation 

prior to computing the GHG metric) 

shall be calculated as specified in 

paragraph (c) of this section. The 

calculations shall be reported in the 

State Biennial Performance Reports, as 

required in § 490.107, and shall address 

the following time periods. 

(1) The reference year, as required in 

§ 490.107(b)(1)(ii)(H); and 

(2) The calendar year preceding the 

reporting year, as required in 

§ 490.107(b)(1)(ii)(H), (b)(2)(ii)(J) and 

(b)(3)(ii)(I). 

1MOVES (Motor Vehicle Emission 

Simulator) is EPA’s emission modeling 

system that estimates emissions for mobile 

sources at the national, county, and project 

level for criteria air pollutants, GHGs, and air 

toxics. See https://www.epa.gov/moves. The 

EMFAC model is used in California for 

emissions analysis. 

■ 11. Amend § 490.513 by adding 

paragraph (d) to read as follows: 

§ 490.513 Calculation of National Highway 

System performance measures. 

* * * * * 

(d) The GHG measure specified in 

§ 490.507(b) shall be computed to the 

nearest tenth of a percent as follows: 

Where: 

(Tailpipe CO2 Emissions on NHS)CY = total 

tailpipe CO2 emissions on the NHS in a 

calendar year (expressed in million 

metric tons (mmt), and rounded to the 

nearest hundredth); and 

(Tailpipe CO2 Emissions on NHS)reference year

= total tailpipe CO2 emissions on the 

NHS in calendar year 2022 (expressed in 

million metric tons (mmt), and rounded 

to the nearest hundredth). 

■ 12. Add § 490.515 to read as follows: 


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Equation 1 to paragraph ( c) 

(Tailpipe CO2 Emissions on NHS)cy = (I~= 1 (Fuel Consumed)t X (C02Factor)t) X 

( NHSVMT) 

Total VMT 

Equation 3 to paragraph ( d) 

(Tailpipe CO2Emissions on NHS)cy - (Tailpipe CO2Emissions on NHS) , re,erence year l 00 

(Tailpipe CO2Emissions on NHS\eferenceyear x 
85394 Federal Register / Vol. 88, No. 234 / Thursday, December 7, 2023 / Rules and Regulations 

§ 490.515 Severability. 

The provisions of §§ 490.105(c)(5), 

105(d), 105(d)(1)(v), 105(d)(4), 

105(e)(1)(i), 105(e)(1)(ii), 105(e)(4)(i)(C), 

105(e)(4)(iii), 105(e)(10), 105(f)(1)(i), 

105(f)(3), 105(f)(10), 107(a)(1), 

107(b)(1)(i), 107(b)(1)(ii)(H), 107(b)(2)(i), 

107(b)(2)(ii)(J), 107(b)(3)(i), 

107(b)(3)(ii)(I), 107(c)(2), 107(d), 

109(d)(1)(v), 109(d)(1)(vi), 109(d)(1)(vii), 

109(d)(1)(viii), 109(e)(4)(vi), 

109(e)(4)(vii), 109(e)(6), 109(f)(1)(v), 

503(a)(2), 505, 507(b), 509(f), 509(g), 

509(h), 511(a)(2), 511(c), 511(d) 511(f), 

and 513(d) are separate and severable 

from one another and from the other 

provisions of this part. If any provision 

is stayed or determined to be invalid, 

the remaining provisions shall continue 

in effect. 

[FR Doc. 2023–26019 Filed 12–6–23; 8:45 am] 

BILLING CODE 4910–22–P 


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