[Federal Register Volume 87, Number 135 (Friday, July 15, 2022)]
[Proposed Rules]
[Pages 42401-42422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14679]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 490

[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: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: Extreme weather due to climate change threatens the safety and 
mobility of Americans and challenges the stability of supply chains. To 
help address the climate crisis, FHWA proposes to amend its regulations 
governing national performance management measures to require State 
departments of transportation (State DOTs) and metropolitan planning 
organizations (MPOs) to establish declining carbon dioxide 
(CO<INF>2</INF>) targets and to establish a method for the measurement 
and reporting of greenhouse gas (GHG) emissions associated with 
transportation under the Highways title of the United States Code 
(U.S.C.). The proposed rule would not mandate the level of the targets. 
Rather, State DOTs and MPOs would 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 would reduce emissions over time. Specifically, the proposed 
rule would require State DOTs and MPOs that have National Highway 
System (NHS) mileage within their State geographic boundaries and 
metropolitan planning area boundaries, respectively, to establish 
declining CO<INF>2</INF> emissions targets to reduce CO<INF>2</INF> 
emissions generated by on-road mobile sources relative to a reference 
year defined as calendar year 2021, that align with the 
Administration's net-zero targets as outlined in the national policy 
established under Executive orders entitled ``Protecting Public Health 
and the Environment and Restoring Science to Tackle the Climate 
Crisis'' and ``Tackling the Climate Crisis at Home and Abroad'' and at 
the Leaders Summit on Climate. The proposed rule would require MPOs 
serving urbanized areas with multiple MPOs to establish additional 
joint targets. The proposed rule also would require State DOTs and MPOs 
to biennially report on their progress in meeting the targets and 
require FHWA to assess significant progress toward achieving the 
targets.

DATES: Comments must be received on or before October 13, 2022.

ADDRESSES: To ensure that you do not duplicate your docket submissions, 
please submit comments by only one of the following means:

    <bullet> Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for submitting 
comments.
    <bullet> Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
    <bullet> Hand Delivery: U.S. Department of Transportation, Docket 
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. The telephone number is (202) 
366-9329.

All submissions should include the agency name and the docket number 
that appears in the heading of this document or the Regulation 
Identifier Number (RIN) for the rulemaking. All comments received will 
be posted without change to https://www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Mr. John Davies, Office of Planning, 
Environment, and Realty, (202) 366-6039, or via email at 
<a href="/cdn-cgi/l/email-protection#0e4461666049204a6f78676b7d4e6a617a20696178"><span class="__cf_email__" data-cfemail="e5af8a8d8ba2cba184938c8096a5818a91cb828a93">[email protected]</span></a>, or Mr. Lev Gabrilovich, Office of the Chief 
Counsel (HCC-30), (202) 366-3813, or via email at 
<a href="/cdn-cgi/l/email-protection#2f634a5901684e4d5d46434059464c476f4b405b01484059"><span class="__cf_email__" data-cfemail="81cde4f7afc6e0e3f3e8edeef7e8e2e9c1e5eef5afe6eef7">[email protected]</span></a>. Office hours are from 8:00 a.m. to 4:30 p.m., 
E.T., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    This document and all comments received may be viewed online 
through the Federal eRulemaking portal at www.regulations.gov using the 
docket number listed above. Electronic retrieval help and guidelines 
are also available at www.regulations.gov. 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.
    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. In addition to late comments, 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the comment period closing date and 
interested persons should continue to examine the docket for new 
material. A final rule may be published at any time after close of the 
comment period and after DOT has had the opportunity to review the 
comments submitted.

Table of Contents for Supplementary Information

I. Executive Summary
II. Background and Regulatory History
III. Statement of the Problem, Legal Authority, and Rationale
    A. Confronting the Climate Crisis
    B. Legal Authority for the Proposed GHG Measure
    C. Additional Rationale for the Proposed GHG Measure
    1. Costs and Benefits
    2. Duplication of Efforts
    D. Expected Schedule for Implementation
IV. Section-by-Section Discussion of the Proposed Changes
    A. Subpart A--General Information
    B. Subpart E--National Performance Management Measures to Assess

[[Page 42402]]

Performance of the National Highway System
V. Additional Requests for Comments
    A. Establishing Targets That Lead to Improved Environmental 
Performance
    B. Summary of and Request for Comments on the Regulatory Impact 
Analysis
VI. Rulemaking Analyses and Notices

I. Executive Summary

    FHWA proposes to amend its regulations on national performance 
management measures to establish a method for the measurement and 
reporting of GHG emissions associated with transportation under Title 
23, U.S.C. The environmental sustainability, and specifically the 
carbon footprint, of the transportation system is a critically 
important attribute that State DOTs can and should use to assess the 
performance of the Interstate and non-Interstate National Highway 
System (NHS). 23 U.S.C. 150(c) directs FHWA to establish performance 
measures that the State DOTs can use to assess performance of the 
Interstate and non-Interstate NHS. Although the statute does not define 
the meaning of ``performance'' of the Interstate and non-Interstate NHS 
under 23 U.S.C. 150(c), Congress identified national goals under 23 
U.S.C. 150(b), which include environmental sustainability. To support 
the environmental sustainability national goal, FHWA is proposing that 
``performance'' of the Interstate and non-Interstate NHS under 23 
U.S.C. 150(c) includes environmental performance. This definition of 
``performance'' is also consistent with other Title 23, U.S.C. 
provisions, such as 23 U.S.C. 119, as discussed later in this preamble.
    The proposed GHG measure would be codified among the National 
Highway Performance Program (NHPP) performance measures that FHWA 
established in 23 CFR part 490 (part 490) through prior rulemakings. 
The proposed rule would require State DOTs and MPOs that have NHS 
mileage within their State geographic boundaries and metropolitan 
planning area boundaries, respectively, to establish declining targets 
that reduce CO<INF>2</INF> emissions \1\ generated by on-road mobile 
sources relative to a reference year defined as calendar year 2021, 
that align with the Administration's target of net-zero emissions, 
economy-wide, by 2050, as outlined in 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'', E.O. 
14008, and ``Tackling the Climate Crisis at Home and Abroad'', and at 
the Leaders Summit on Climate. Declining targets also indicate a 
reduction in CO<INF>2</INF> emissions from one performance period to a 
subsequent performance period. The proposed rule uses ``NHS'' to mean 
the mainline highways of the NHS, consistent with the applicability of 
the measure described in proposed Sec.  490.503(a)(2). 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, the proposed rule would 
require certain MPOs serving urbanized areas 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. 23 CFR 450.104; see 23 U.S.C. 101(a)(34). Specifically, when 
the metropolitan planning area boundaries of two or more MPOs overlap 
any portion of an urbanized area, and the urbanized area contains NHS 
mileage, those MPOs would establish joint 4-year targets for that 
urbanized area. This joint target would be established in addition to 
each MPO's target for their metropolitan planning area. Further, the 
proposed rule would require State DOTs and MPOs to set declining 
targets for reducing tailpipe CO<INF>2</INF> emissions on the NHS. 
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 are in line with the net-zero goals by 2050 
set forth in this rule. The proposed rule also would require State DOTs 
and MPOs to report on their progress in meeting the targets. 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).
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    \1\ The proposed GHG measure specifically applies to 
CO<INF>2</INF> emissions, which is the predominant human-produced 
greenhouse gas. CO<INF>2</INF> is also the predominant GHG from on-
road mobile sources, accounting for 97 percent of total greenhouse 
gas emissions weighted by global warming potential in 2019. See EPA 
Inventory of U.S. Greenhouse Gas Emissions and Sinks, available at 
https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
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    The proposed GHG measure would help the United States 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 2,000 years.\2\ 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.\3\ These changes in extreme events, along 
with anticipated future changes in these events due to 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. The National Oceanic and Atmospheric Administration (NOAA) has 
documented billion-dollar weather and climate disasters since 1980. 
According to the NOAA data, which are adjusted for inflation, five of 
the six years with the greatest total annual costs occurred between 
2012 and 2021.\4\ Many of these disasters have impacted a variety of 
Federal, State, and local resources, including FHWA funding programs, 
in a number of ways, including recovery and response. Action to 
significantly reduce global GHG emissions can reduce climate-related 
risks to communities. At the same time, transportation contributes 
significantly to the causes of climate change,\5\ and each additional 
ton of CO<INF>2</INF> produced by the combustion of fossil fuels 
contributes to future warming and other climate impacts.
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    \2\ See IPCC, 2021: Summary for Policymakers. In: Climate Change 
2021: The Physical Science Basis. Contribution of Working Group I to 
the Sixth Assessment Report of the Intergovernmental Panel on 
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
    \3\ 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. P[eacute]an, S. Berger, N. 
Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. 
Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. 
Yelek[ccedil]i, R. Yu, and B. Zhou (eds.)]. Cambridge University 
Press. In Press.
    \4\ NOAA National Centers for Environmental Information (NCEI) 
U.S. Billion-Dollar Weather and Climate Disasters (2022). https://www.ncei.noaa.gov/access/billions/, DOI: 10.25921/stkw-7w73.
    \5\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. Choate, 
S. DesRoches, S. Douglass, and R. Miller, 2018: Transportation. In 
Impacts, Risks, and Adaptation in the United States: Fourth National 
Climate Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R. 
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C. 
Stewart (eds.)]. U.S. Global Change Research Program, Washington, 
DC, USA, pp. 479-511. doi: 10.7930/NCA4.2018.CH12.
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    The proposed GHG measure would align with recent Executive Orders 
described later in this preamble and a U.S. target of achieving a 50 to 
52 percent reduction from 2005 levels of economy-wide net GHG pollution 
in

[[Page 42403]]

2030, on a course toward reaching net-zero emissions economy-wide by no 
later than 2050.\6\ The first step toward reducing GHG emissions in 
every sector involves inventorying and monitoring those emissions. The 
transportation sector is both the largest source of U.S. CO<INF>2</INF> 
emissions \7\ and increasingly vulnerable to the higher temperatures, 
more frequent and intense precipitation, and sea level rise associated 
with the changing climate.
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    \6\ White House Fact Sheet: President Biden Sets 2030 Greenhouse 
Gas Pollution Reduction Target Aimed at Creating Good-Paying Union 
Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr. 
22, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; White House Fact Sheet: President Biden's Leaders 
Summit on Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/; see U.S. 
Department of Transportation Strategic Plan FY 2022-2026, available 
at https://www.transportation.gov/sites/dot.gov/files/2022-04/US_DOT_FY2022-26_Strategic_Plan.pdf.
    \7\ See EPA Inventory of U.S. Greenhouse Gas Emissions and 
Sinks, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
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    Accordingly, as a matter of transportation policy, DOT considers 
the proposed GHG performance management measure essential not only to 
improve transportation sector GHG 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 on GHG emissions from 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 choices about the role of transportation 
investments and other strategies in achieving GHG reduction targets. In 
addition, a requirement for State DOTs and MPOs to establish declining 
targets for reductions in tailpipe CO<INF>2</INF> emissions on the NHS, 
informed by complete, consistent, and timely information on GHG 
emissions from on-road mobile source emissions, is vital to achieving 
50 to 52 percent reductions by 2030 and net-zero emissions economy-wide 
by 2050.
    Furthermore, the proposed rule responds to the direction in 
sections 1 and 2 of Executive Order 13990 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. 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.
    FHWA has the legal authority to establish the proposed GHG measure 
under 23 U.S.C. 150. Specifically, FHWA is directed under 23 U.S.C. 
150(c)(A)(ii) 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. To address this national goal, 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) includes environmental performance. The 
proposed GHG measure is also appropriate in light of other provisions 
of Title 23, U.S.C., notably the National highway performance program 
provisions at 23 U.S.C. 119, which include requirements for State asset 
management plans that support progress toward the achievement of the 
environmental sustainability 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). In addition, several other 
provisions support the measure, including: 23 U.S.C. 101(b)(3)(G) 
(transportation policy); 134(a)(1) (transportation planning policy); 
134(c)(1) (metropolitan planning); and 135(d)(1) and (d)(2) (statewide 
planning process and a performance-based approach).
    The proposed GHG measure does not conflict with the on-road mobile 
source emissions provision in 23 U.S.C. 150(c)(5), which requires that 
the Secretary establish performance measures to carry out the 
Congestion Mitigation and Air Quality Improvement (CMAQ) Program to 
reduce criteria pollutants under 23 U.S.C. 149. As discussed below, 
performance measures may overlap to achieve the national goals set 
forth in the statute.
    In addition, there are two other lines of support for the proposed 
GHG measure. First, the proposed measure would inform transportation 
planning at all levels of government, including by State DOTs, MPOs, 
and FHWA. By providing consistent and timely information about on-road 
mobile source emissions on the NHS, the proposed GHG measure has the 
potential to yield benefits including greater public awareness of GHG 
emissions trends, increased transparency and improved decision-making 
at all levels of government, and planning choices to reduce GHG 
emissions or inform tradeoffs among competing policy choices.
    Second and related, the establishment of a national GHG measure 
would provide a new source of information that would be valuable to 
State DOTs, MPOs, and the Federal government as they pursue GHG 
reduction goals and targets. The potential for duplication of efforts 
by other government entities was one reason FHWA cited in 2018 when 
repealing the 2017 GHG measure. Upon further consideration, FHWA 
rejects the notion that the proposed GHG measure would duplicate other 
efforts and therefore is inappropriate. While the U.S. Department of 
Energy (DOE) and the U.S. Environmental Protection Agency (EPA) publish 
State-by-State CO<INF>2</INF> estimates for the transportation sector, 
this data is not disaggregated to reflect CO<INF>2</INF> emissions from 
on-road sources, and can reflect significant fluctuations in 
CO<INF>2</INF> emissions from other transportation sources (such as 
aircraft, boats, and rail). The DOE and EPA data also lag FHWA's 
publication of fuel use data by up to a year. The proposed GHG measure 
would utilize FHWA's fuel use data very shortly after its publication 
and provide a more timely information source that is better suited for 
setting targets, monitoring trends, and evaluating the impact of 
strategies across various levels of government to reduce GHG emissions. 
In these capacities the proposed GHG measure is integral to a whole-of-
Government approach to address climate change and its effects, and 
would provide State DOTs with valuable information that is not already 
addressed by other Federal agencies.
    FHWA proposes changes to two subparts of part 490: Subpart A--
General Information, and Subpart E--National Performance Management 
Measures to Assess Performance of the National Highway System. The 
proposed changes to subpart A include a new definition in Sec.  490.101 
and the addition of references to the proposed GHG measure and new 
provisions in the following sections: Sec.  490.105 Establishment of 
performance targets; Sec.  490.107 Reporting on performance targets; 
and Sec.  490.109 Assessing significant progress toward achieving the 
performance targets for the National Highway Performance Program and 
the National Highway Freight Program. The

[[Page 42404]]

proposed changes to subpart E would incorporate the GHG measure into 
existing regulations on NHPP performance measures. Specifically, the 
proposed changes would affect the following sections: Sec.  490.503 
Applicability; Sec.  490.505 Definitions; Sec.  490.507 National 
performance management measures for system performance; Sec.  490.509 
Data requirements; Sec.  490.511 Calculation of National Highway System 
performance metrics; and Sec.  490.513 Calculation of National Highway 
System performance measures.
    The draft regulatory impact analysis (RIA) prepared pursuant to 
Executive Order 12866, and which is available in the rulemaking docket 
(Docket No. FHWA-2021-0004), 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 (2022-2031). Total costs over this period are 
estimated to be $11.0 million, discounted at 7 percent, and $12.9 
million, discounted at 3 percent. The RIA discusses anticipated 
benefits of the rule qualitatively; they are not quantified because 
they are difficult to forecast and monetize.

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. FHWA has technical and policy experts on staff to provide 
State DOTs and MPOs assistance implementing performance management, and 
to oversee program requirements.
    FHWA conducted several rulemakings to implement the new performance 
management framework. The rulemakings established in 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 transportation performance management requirements provide 
increased accountability and transparency, and facilitate efficient 
investment of Federal transportation funds through a focus on 
performance outcomes for the seven national 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 longer-term 
national 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 new 
Transportation Performance Management (TPM) requirements established in 
MAP-21 changed this paradigm by requiring State DOTs and MPOs to 
measure condition or performance, establish targets, assess progress 
towards targets, and report on condition or performance in a nationally 
consistent manner for the first time (23 U.S.C. 150(e) and 23 CFR 
490.107).
    As previously noted, FHWA conducted several rulemakings 
implementing the performance management framework. Most relevant to 
this proposed rule are three related national performance management 
measure rulemakings in which FHWA established various measures for 
State DOTs and MPOs to use to assess performance, found at 23 CFR part 
490. The first rulemaking focused on Safety Performance Management 
(PM1), and a final rule published on March 15, 2016 (81 FR 13882), 
established performance measures for State DOTs to use to carry out the 
Highway Safety Improvement Program (HSIP). The second rulemaking on 
Infrastructure Performance Management (PM2) resulted in a final rule 
published on January 18, 2017 (82 FR 5886), that established 
performance measures for assessing pavement condition and bridge 
condition for the NHPP. The third rulemaking, System Performance 
Management (PM3), established measures for State DOTs and MPOs to use 
to assess the performance of the Interstate and non-Interstate NHS for 
the purpose of carrying out the NHPP; to assess freight movement on the 
Interstate System; and to assess traffic congestion and on-road mobile 
source emissions for the purpose of carrying out the CMAQ Program. The 
PM3 final rule was published on January 18, 2017 (82 FR 5970).
    The PM3 rule addressed a broad set of performance issues and some 
of the national transportation goals, such as environmental 
sustainability, that were not addressed in the earlier rulemakings 
focused solely on safety and infrastructure condition. In the preamble 
to the PM3 proposed rule, published on April 22, 2016 (81 FR 23806), 
FHWA requested public comment on whether to establish a CO<INF>2</INF> 
emissions measure in the final rule and, if so, how to do so. FHWA 
acknowledged the contribution of on-road sources to over 80 percent of 
U.S. transportation sector GHG emissions, and the historic Paris 
Agreement in which the United States and more than 190 other countries 
agreed in December 2015 to reduce GHG emissions, with the goal of 
limiting global temperature rise to less than 2 degrees Celsius above 
pre-industrial levels by 2050. 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. 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. 82 FR 23831.
    In the PM3 final rule, FHWA established a GHG emissions performance 
measure to measure environmental performance in accordance with 23 
U.S.C. 150(c)(3) after considering extensive public comments on whether 
and how FHWA should establish such a measure. Specifically, the GHG 
measure involved the percent change in CO<INF>2</INF> emissions from 
the reference year 2017, generated by on-road mobile sources on the 
NHS. Had the GHG measure remained in effect, State DOTs would have been 
required to estimate CO<INF>2</INF> emissions based on annual fuel 
sales, Energy Information Agency (EIA) published emission conversion 
factors, and the proportion of statewide vehicle miles

[[Page 42405]]

traveled (VMT) that occurs on the NHS. MPOs would have been given 
options as to how they would calculate CO<INF>2</INF> emissions. All 
State DOTs and MPOs with NHS mileage in their State geographic 
boundaries and metropolitan planning areas, respectively, would have 
been required to establish targets and report on progress. A State DOT 
would have reported annual CO<INF>2</INF> emissions every 2 years to 
FHWA in its Biennial Performance Report. FHWA would have assessed and 
determined every 2 years whether a State DOT had made significant 
progress toward achieving its targets. See 82 FR 5974 and 5981.
    On October 5, 2017 (82 FR 46427), however, FHWA proposed to repeal 
the 2017 GHG measure. FHWA requested public comment on whether to 
retain or revise the 2017 GHG measure. See 82 FR 46430. In light of 
policy direction 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. FHWA 
identified three main reasons for the repeal: (1) reconsideration of 
the underlying legal authority; (2) the cost of the GHG measure in 
relation to the lack of demonstrated benefits; and (3) potential 
duplication of information produced by the GHG measure and information 
produced by other initiatives related to measuring CO<INF>2</INF> 
emissions.
    All other performance management measures remained in place and 
implementation is underway. FHWA continues to expect that State DOTs 
and MPOs will use the information and data generated in response to 
part 490 to inform State or local planning and programming decisions. 
FHWA, in turn, will continue to use the information and data to improve 
national performance on all of the statutory goals and to assess more 
reliably the impacts of Federal funding investments.

III. Statement of the Problem, Legal Authority, and Rationale

    FHWA believes that establishment of performance management 
requirements remains a powerful tool for achieving all seven of the 
statutory national transportation goals, including environmental 
sustainability. As FHWA acknowledged in the preamble to the PM3 final 
rule, implementation of the performance management requirements should 
evolve over time for various reasons, including shifts in national 
priorities for the focus on a goal area. See 82 FR 5974. In light of 
the Agency's policy emphasis on using its available authorities to 
confront worsening climate change--as well as the new facts identified 
in reports issued between 2018 and 2021 that expand our knowledge of 
the severe consequences of climate change--FHWA reconsidered its legal 
authority, reexamined the assumptions regarding potential costs and 
potential duplication that underlay the repeal of the 2017 measure, and 
proposes adopting a GHG performance measure. Consistent with the 
purpose and text of the statute, FHWA believes establishing a GHG 
performance measure could be an effective means for supporting the 
environmental sustainability of the Federal-aid highway program.

A. Confronting the Climate Crisis

    Scientific literature published since the 2018 GHG measure repeal 
provides greater certainty on the impact of human activities on the 
earth's current and future climate, as well as the urgency of actions 
to reduce human GHG emissions. The IPCC Sixth Assessment Report states 
that it is now unequivocal that human activities have increased 
atmospheric GHG emissions concentrations and resulted in warming of the 
atmosphere, ocean, and land, with average surface temperature having 
increased by approximately 2 degrees Fahrenheit since the 1800s.\8\ The 
IPCC Sixth Assessment Report also points to growing evidence linking 
human production of GHG emissions to extreme events such as heatwaves, 
heavy precipitation, droughts, and hurricanes. The report warns that 
human-produced GHG emissions already in the atmosphere have assured 
that global surface temperatures will continue to increase until at 
least the mid-century, even with significant reductions in 
CO<INF>2</INF> emissions. This warming will result in other changes 
that are irreversible for centuries to millennia, including the 
continued melting of mountain and polar glaciers, the loss of ice from 
the Greenland Ice Sheet, and the continued rise in global mean sea 
level. The IPCC Sixth Assessment Report further notes that every ton of 
CO<INF>2</INF> emissions contributes to climate change.
---------------------------------------------------------------------------

    \8\ See IPCC, 2021: Summary for Policymakers. In: Climate Change 
2021: The Physical Science Basis. Contribution of Working Group I to 
the Sixth Assessment Report of the Intergovernmental Panel on 
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
---------------------------------------------------------------------------

    Other research also shows that CO<INF>2</INF> and other GHG 
emissions have accumulated rapidly as the world has industrialized, 
with concentrations of atmospheric CO<INF>2</INF> increasing from 
roughly 278 parts per million in 1750 \9\ to 414 parts per million in 
2020.\10\ Human-produced GHG emissions have increased over this time 
period, with larger absolute increases since 2000 despite a growing 
number of climate change mitigation policies.\11\ Since GHGs, such as 
CO<INF>2,</INF> methane (CH<INF>4</INF>), and nitrous oxide 
(N<INF>2</INF>O), have atmospheric lifetimes ranging from a decade to a 
century or more,\12\ atmospheric concentrations have increased every 
year measurements have been recorded since 1959, even when GHG 
emissions have decreased on a year-over-year basis.\13\ This phenomenon 
was demonstrated in 2020 when global mean CO<INF>2</INF> concentration 
increased by 2.7 parts per million (ppm) relative to 2019 \14\ despite 
a 5.8 percent decrease in global energy-related CO<INF>2</INF> 
emissions, which represented the largest percentage decline since World 
War II.\15\
---------------------------------------------------------------------------

    \9\ Wuebbles, D.J., D.R. Easterling, K. Hayhoe, T. Knutson, R.E. 
Kopp, J.P. Kossin, K.E. Kunkel, A.N. LeGrande, C. Mears, W.V. Sweet, 
P.C. Taylor, R.S. Vose, and M.F. Wehner, 2017: Climate Science 
Special Report: Fourth National Climate Assessment, Volume I 
[Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, D.J. Dokken, B.C. 
Stewart, and T.K. Maycock (eds.)]. U.S. Global Change Research 
Program, Washington, DC, USA, (U.S. GCRP 2017 Climate Science 
Special Report) pp. 82, doi: 10.7930/J08S4N35, available at https://science2017.globalchange.gov/.
    \10\ National Oceanic and Atmospheric Administration (2021). 
Trends in Atmospheric Carbon Dioxide (NOAA 2021 Trends in 
Atmospheric Carbon Dioxide), available at https://www.esrl.noaa.gov/gmd/ccgg/trends/.
    \11\ Intergovernmental Panel on Climate Change. Climate Change 
2014 Synthesis Report Summary for Policymakers (IPCC 2014 Report), 
available at https://www.ipcc.ch/site/assets/uploads/2018/02/AR5_SYR_FINAL_SPM.pdf.
    \12\ U.S. GCRP 2017 Climate Science Special Report at 80.
    \13\ NOAA 2021 Trends in Atmospheric Carbon Dioxide.
    \14\ Id.
    \15\ International Energy Agency (2021) Global Energy Review: 
CO<INF>2</INF> Emissions in 2020.
---------------------------------------------------------------------------

    Scientists have warned that significant and potentially dangerous 
shifts in climate and weather are possible with climate change of 2 
degrees Celsius (3.6 degrees Fahrenheit) beyond preindustrial 
levels.\16\ Stabilizing at this level would likely require atmospheric 
CO<INF>2</INF> concentrations of approximately 450 ppm or lower; \17\ 
achieving this concentration would likely require a decrease in global 
net anthropogenic CO<INF>2</INF> emissions of about 25 percent below 
2010 levels by 2030, leading to net-zero CO<INF>2</INF> emissions by

[[Page 42406]]

2070.\18\ The Paris Agreement goal is to limit global warming well 
below that level, and preferably to 1.5 degrees Celsius (2.7 degrees 
Fahrenheit),\19\ which the IPCC estimates would likely require 
decreasing global net anthropogenic CO<INF>2</INF> emissions 45 percent 
below 2010 levels by 2030, reaching net-zero around 2050.\20\ The IPCC 
Sixth Assessment Report includes new estimates of the likelihood of 
crossing the 1.5 degree Celsius threshold, concluding that without 
immediate, rapid and large-scale reductions in GHG emissions, it will 
no longer be possible to limit warming to 1.5 degrees or even 2 degrees 
Celsius.\21\
---------------------------------------------------------------------------

    \16\ See Intergovernmental Panel on Climate Change (2018) 
Summary for Policymakers. In Global Warming of 1.5 Deg. C. An IPCC 
Special Report, available at https://www.ipcc.ch/sr15/chapter/spm.
    \17\ IPCC 2014 Report.
    \18\ Intergovernmental Panel on Climate Change. Climate Change 
2018: Summary for Policymakers. (IPCC 2018 Report), available at 
https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf.
    \19\ U.S. Department of State (2021). U.S.--China Joint 
Statement Addressing the Climate Crisis, available at https://www.state.gov/u-s-china-joint-statement-addressing-the-climate-crisis/.
    \20\ Intergovernmental Panel on Climate Change (2018). Special 
Report: Global Warming of 1.5 Degrees. Summary for Policymakers. 
https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf.
    \21\ See IPCC, 2021: Summary for Policymakers. In: Climate 
Change 2021: The Physical Science Basis. Contribution of Working 
Group I to the Sixth Assessment Report of the Intergovernmental 
Panel on Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
---------------------------------------------------------------------------

    Given the urgency of the climate crisis, several recent Executive 
orders and other commitments prioritize actions throughout the 
Government to address climate change. Section 1 of E.O. 13990, 
``Protecting Public Health and the Environment and Restoring Science to 
Tackle the Climate Crisis,'' 86 FR 7037 (Jan. 25, 2021), 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. E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad,'' 
86 FR 7619 (Feb. 1, 2021), recommits the United States to the Paris 
Agreement and calls on the United States to begin the process of 
developing its nationally determined contribution to global GHG 
reductions with analysis and input from executive departments and 
agencies and outreach to domestic stakeholders. 86 FR 7620. Under that 
nationally determined contribution, the U.S. will target reducing 
emissions by 50 to 52 percent by 2030 compared to 2005 levels.\22\
---------------------------------------------------------------------------

    \22\ White House Fact Sheet: President Biden's Leaders Summit on 
Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/. In addition, E.O. 14057, 
``Catalyzing Clean Energy Industries and Jobs Through Federal 
Sustainability,'' 86 FR 70935 (Dec. 13, 2021), highlights the 
Federal Government's role in transforming the ways the Government 
builds, buys, and manages electricity, vehicles, buildings, and 
other operations to be clean and sustainable.
---------------------------------------------------------------------------

    E.O. 14008 also calls for a Government-wide approach to the climate 
crisis and acknowledges opportunities to create jobs to build a modern, 
sustainable infrastructure, to provide an equitable, clean energy 
future, and to put the United States on a path to achieve net-zero 
emissions, economywide, no later than 2050. 86 FR 7622. Notably, 
section 201 of E.O. 14008 calls on the Federal Government to drive 
assessment, disclosure, and mitigation of climate pollution and 
envisions Federal actions combined with efforts from every level of 
government and every economic sector. 86 FR 7622. It also supports the 
principle set forth in section 213 ``to ensure that Federal 
infrastructure investment reduces climate pollution.'' 86 FR 7626. This 
principle affirms that reducing GHGs is part of the expected 
performance of transportation infrastructure, making it an appropriate 
and necessary metric for the NHS.
    In addition, sections 1 and 2 of E.O. 13990 direct that all 
agencies immediately review Federal regulations promulgated and other 
actions taken between January 20, 2017, and January 20, 2021, and, 
consistent with applicable law, take action to address regulations that 
conflict with the national objectives stated in section 1 of E.O. 13990 
and to begin work immediately to address the climate crisis. 86 FR 
7037. In response to this direction, FHWA has reviewed the May 2018 
final rule that repealed the 2017 GHG measure and has concluded that 
the repeal conflicts with those national objectives, which include 
reducing GHG emissions. Because reducing GHG emissions is clearly 
established as a national priority and national goal in section 1 of 
E.O. 13990 and E.O. 14008, FHWA has concluded that it is appropriate to 
propose to reestablish a GHG performance measure for the reasons set 
forth in this preamble. The proposed measure is similar to the repealed 
2017 GHG measure. However, FHWA is updating analyses and proposing 
updated requirements associated with the measure. Additionally, FHWA is 
proposing to require State DOTs and MPOs to set declining targets for 
reducing tailpipe CO<INF>2</INF> emissions on the NHS that align with 
the 2030 and 2050 targets set out in the Executive Orders discussed 
previously in this section.
    By establishing the proposed GHG measure, FHWA would be taking 
action to address the largest source of U.S. CO<INF>2</INF> emissions. 
In 2019, the transportation sector accounted for 34.6 percent of total 
U.S. CO<INF>2</INF> emissions, with 83.2 percent of the sector's total 
CO<INF>2</INF> emissions coming from on-road sources.\23\ The 
transportation sector is expected to remain the largest source of U.S. 
CO<INF>2</INF> emissions through 2050, increasing at an average annual 
rate of 0.3 percent per year despite improvements in the energy 
efficiency of light-duty vehicles, trucks, and aircraft.\24\ 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.\25\
---------------------------------------------------------------------------

    \23\ U.S. Environmental Protection Agency (2021). Inventory of 
U.S. Greenhouse Gas Emissions and Sinks: 1990-2019, available at 
https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
    \24\ U.S. Energy Information Administration (2021). Annual 
Energy Outlook 2021, available at https://www.eia.gov/outlooks/aeo/tables_ref.php.
    \25\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. 
Choate, S. DesRoches, S. Douglass, and R. Miller, 2018: 
Transportation. In Impacts, Risks, and Adaption 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. 
Mayock, 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/.
---------------------------------------------------------------------------

    In addition to being the largest source of U.S. CO<INF>2</INF> 
emissions, the transportation sector is increasingly vulnerable to the 
effects of climate change. As highlighted in FHWA's 2013 Conditions and 
Performance Report \26\ and in A Performance-Based Approach to 
Addressing Greenhouse Gas Emissions through Transportation 
Planning,<SUP>27</SUP> there are two main types of climate change risk 
affecting transportation infrastructure: continued emissions of GHGs, 
such as CO<INF>2</INF>, that adversely affect the atmosphere, leading 
to climate change effects; and threats to the transportation system 
posed by climate change impacts (e.g., damaged

[[Page 42407]]

or flooded facilities).\28\ In other words, the transportation system 
both contributes to climate change and suffers from the impacts of 
climate change.
---------------------------------------------------------------------------

    \26\ FHWA 2013 Conditions and Performance Report (PDF Version), 
``Advancing Environmental Sustainability'' at 5-6 through 5-7, 
available at https://www.fhwa.dot.gov/policy/2013cpr/pdfs.cfm.
    \27\ A Performance-Based Approach to Addressing Greenhouse Gas 
Emissions through Transportation Planning, FHWA (December 2013) at 
iii-iv, available at https://www.fhwa.dot.gov/environment/ 
climate_change/mitigation/publications/ghg_planning/index.cfm.
    \28\ Extreme weather and other impacts related to GHG emissions, 
such as sea level rise, can harm, disrupt, and damage transportation 
systems, particularly through flooding, resulting in costly 
disruptions. For discussions of the potential disruptive effects of 
climate change on the transportation system, see also Impacts of 
Climate Change and Variability on Transportation Systems and 
Infrastructure: The Gulf Coast Phase 2, Task 3.2 Engineering 
Assessments of Climate Change Impacts and Adaptation Measures (FHWA 
and DOT Climate Change Center) (August 2014) at 273 (available as of 
September 14, 2016, at http://www.fhwa.dot.gov/environment/ 
climate_change/adaptation/ongoing_and_current_research/
gulf_coast_study/phase2_task3/task_3.2/task2phase3.pdf); and Hampton 
Roads Climate Impact Quantification Initiative, Baseline Assessment 
of the Transportation Assets and Overview of Economic Analyses 
Useful in Quantifying Impacts, DOT (September 13, 2016) (available 
as of November 1, 2016 at https://rosap.ntl.bts.gov/view/dot/12379).
---------------------------------------------------------------------------

    Transportation infrastructure is increasingly at risk from 
increased intensity and frequency of precipitation, sea level rise and 
resulting coastal flooding, heat, wildfires, and other extreme events 
associated with a changing climate. These impacts threaten to increase 
the cost of maintaining, repairing, and replacing infrastructure, 
particularly assets that are approaching or beyond their design life. 
Climate impacts also threaten the performance of the entire network, as 
defined by national goals identified in 23 U.S.C. 150(b). Basic 
mobility and economic needs will be compromised by both short-term and 
long-term impacts of climate change. Potential consequences include 
effects on safety, environmental sustainability, economic vitality and 
mobility, congestion, and system reliability. Given the increased 
severity of extreme weather events resulting from climate change, 
ensuring safe and effective emergency evacuation routes will become 
increasingly difficult. These effects may disproportionately affect 
vulnerable populations and urban transportation assets.\29\
---------------------------------------------------------------------------

    \29\ 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.
---------------------------------------------------------------------------

    In the face of these climate challenges, establishing a GHG measure 
in FHWA's Transportation Performance Management Program would provide a 
consistent basis for addressing the environmental sustainability of the 
system and estimating on-road GHG emissions. The measure would aid 
State DOTs and MPOs in planning GHG emissions reductions and evaluating 
progress toward national, State, and local GHG targets. Comprehensive 
transportation planning processes require consideration of strategies 
that protect and enhance the environment, promote energy conservation, 
improve the quality of life, and improve the resiliency and reliability 
of the transportation system. See 23 U.S.C 134(h)(1)(E) and (I) and 23 
U.S.C 135(d)(1)(E) and (I). Statewide and metropolitan transportation 
planning processes are required to use a performance-based approach to 
transportation decision-making to support the national goals described 
in 23 U.S.C. 150(b). Such an approach includes establishing performance 
targets that address the performance measures established by FHWA under 
23 U.S.C. 150(c), where applicable, to track progress toward attainment 
of critical outcomes for the State or MPO region. 23 U.S.C. 
134(h)(2)(A)-(B) and 135(d)(2)(A)-(B). Further, States and MPOs are 
required to integrate the goals, objectives, performance measures, and 
targets into their transportation planning processes, and States 
consider them when developing policies, programs, and investment 
priorities reflected in the statewide transportation plan and the 
Statewide Transportation Improvement Program (STIP). 23 U.S.C. 
134(h)(2)(D) and 135(d)(2)(C) and (D); see 23 CFR 450.218(q) and 
450.326(d).
    Establishing a GHG measure also would result in a consistent set of 
data that could inform the future investment decisions of the Federal 
Government, State DOTs, and MPOs towards achieving their targets or 
goals. In addition, an on-road GHG emissions measure would advance the 
Federal-aid highway program's national goal for environmental 
sustainability identified under 23 U.S.C. 150(b)(6). In implementing 
the proposed measure, FHWA intends to consider a wide range of data and 
tools from EPA, the DOE National Laboratories, and other Federal 
agencies.
    An on-road GHG emissions measure would allow State DOTs, MPOs, and 
FHWA to analyze transportation GHG trends and could facilitate DOT 
contributions to the National Climate Task Force established in section 
203 of E.O. 14008 to facilitate the organization and deployment of a 
Government-wide approach to the climate crisis. See 86 FR 7623. The 
proposed GHG measure would inform DOT-wide efforts to engage with 
domestic stakeholders and to identify U.S. contributions to needed 
reductions under the Paris Agreement and the U.S. target of reducing 
emissions by 50 to 52 percent by 2030 compared to 2005 levels, as well. 
While on-road tailpipe CO<INF>2</INF> emissions on the NHS represent 
one discrete component of U.S. transportation sector GHG emissions, 
measuring and reporting on-road tailpipe CO<INF>2</INF> emissions on 
the NHS under the proposed GHG measure would be useful for all of these 
reasons.

B. Legal Authority for the Proposed GHG Measure

    FHWA is proposing to establish a GHG emissions performance measure 
under 23 U.S.C. 150(c)(3), which calls for 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. 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V). Since Congress did not define 
the term ``performance,'' as used in 23 U.S.C. 150(c)(3), FHWA must 
interpret this term in the context of the statute. Accordingly, FHWA is 
interpreting ``performance'' of the Interstate and non-Interstate NHS 
under 23 U.S.C. 150(c) to include the system's environmental 
performance, an interpretation that is consistent with the national 
goals established under 23 U.S.C. 150(b). Assessing environmental 
performance will further the environmental sustainability national goal 
to enhance the performance of the transportation system while 
protecting and enhancing the natural environment. 23 U.S.C. 150(b)(6). 
This national goal is incorporated into the NHPP under 23 U.S.C. 
119(e), which calls for a performance-driven asset management plan that 
would ``support progress toward the achievement of the national goals 
identified in section 150(b).'' Assessing environmental performance 
also 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, which 
is one of the purposes of the NHPP. 23 U.S.C. 119(b)(4). This measure 
would only apply to the Interstate and non-Interstate NHS. Since 23 
U.S.C. 150(c)(3)(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. This interpretation is also consistent with 23 U.S.C. 150(c)(2), 
as further described in this preamble.
    In the May 2018 final rule repealing the GHG performance 
requirements in the PM3 rule, FHWA reconsidered its interpretation of 
the statute and determined that the statute did not

[[Page 42408]]

specifically direct or require FHWA to adopt a GHG measure. In deciding 
to repeal the GHG measure in 2018, FHWA adopted a narrow interpretation 
of the statute. FHWA has reconsidered its interpretation of the statute 
and believes that adopting a GHG measure is both consistent with the 
Agency's statutory authority and the implementation of sections 1 and 2 
of E.O. 13990.
    First, 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 ``enhance[ing] the 
performance of the transportation system while protecting and enhancing 
the natural environment.'' 23 U.S.C. 150(b)(6). In light of this 
explicit goal and FHWA's past practice, as described further in this 
section, FHWA believes that it is appropriate to interpret the meaning 
of performance of the Interstate System and the NHS under 23 U.S.C. 
150(c)(3)(A)(ii)(IV)-(V) to include environmental performance. When 
FHWA enacted a GHG performance measure in the PM3 final rule, the 
Agency determined that it is appropriate to adopt the measure under 23 
U.S.C. 150(c)(3), as that section does not impose any limitation on 
what type of NHS performance may be measured in rules promulgated under 
23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V), and because environmental 
performance is an integral part of the Federal-aid highway program, as 
reflected by the national goal of environmental sustainability in 23 
U.S.C. 150(b)(6), transportation planning provisions in 23 U.S.C. 134 
and 135, and environmental provisions in 23 U.S.C. 109(c), (g), (h), 
(i), and (j). The Agency also noted that this interpretation is 
supported by the many FHWA actions to treat the environment, and 
specifically sustainability and climate change, as part of system 
performance. 82 FR 5970, 5995. When FHWA repealed the GHG performance 
measure, the Agency took a 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.
    FHWA has reexamined this determination from the 2018 repeal final 
rule and is proposing to reassert FHWA's earlier determination in the 
PM3 final rule that FHWA has authority under 23 U.S.C. 150(c)(3) to 
establish a GHG performance measure. Congress has not directly 
addressed the meaning of ``performance'' under the NHPP. Rather, FHWA 
is proposing that Congress has 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). Accordingly, FHWA is proposing 
that the performance of the Interstate System and the NHS includes 
environmental performance. This interpretation is reasonable in light 
of FHWA's statutory mandate to address the national goal of 
environmental sustainability under 23 U.S.C. 150(b)(6), as well as 
resilience under 23 U.S.C. 119, as further described in this preamble. 
Notably, 23 U.S.C. 150(c)(2)(C) limits performance measures to those 
described in 23 U.S.C. 150(c). The provision limits FHWA's authority to 
establish measures States use to assess performance only to the 
Interstate System and the NHS. However, the provision does not 
otherwise limit the meaning of ``performance''.
    Second, FHWA's proposed adoption of the GHG measure is consistent 
with other parts of Title 23 of the U.S.C., notably 23 U.S.C. 119. In 
the PM3 final rule, the Agency identified that 23 U.S.C. 119 provides 
additional statutory support for the GHG measure. 82 FR 5995. Section 
119 of Title 23, U.S.C. sets forth the purposes of the NHPP, 
eligibilities for NHPP funding, purposes and requirements for State 
performance management (including asset management, significant 
progress and reporting requirements for performance measures), 
Interstate and bridge condition penalty provisions for falling below 
minimum conditions established by the Secretary, and environmental 
mitigation. FHWA noted that the performance management provisions in 23 
U.S.C. 119(e) call for a performance-driven asset management plan that 
would ``support progress toward the achievement of the national goals 
identified in section 150(b).'' The 2017 GHG measure was developed to 
enhance the performance of the transportation system while protecting 
and enhancing the natural environment, consistent with the national 
goal under 23 U.S.C. 150(b)(6). Thus, by supporting the achievement of 
the national performance goals, the 2017 GHG measure, and by extension 
this proposed rule, supports FHWA's implementation of 23 U.S.C. 119. 
Additionally, the Infrastructure Investment and Jobs Act (IIJA) (Pub. 
L. 117-58, also known as the ``Bipartisan Infrastructure Law''), 
amended 23 U.S.C. 119 to indicate that one of the purposes of the NHPP 
is ``to provide support for activities to increase the resiliency of 
the National Highway System to mitigate the cost of damages from sea 
level rise, extreme weather events, flooding, wildfires, or other 
natural disasters.'' IIJA Section 11105. By addressing the performance 
of the transportation system related to the largest source of U.S. 
CO<INF>2</INF> emissions, FHWA is implementing Congress's express 
direction regarding NHPP goals. As described in this proposal, 
measuring environmental performance though the GHG performance measure 
will assist States to consider CO<INF>2</INF> emissions from 
transportation in the performance management framework and help frame 
responses to the growing climate crisis. Reducing GHG emissions that 
are causing increases in temperature, sea level, extreme weather 
events, flooding, wildfires, and other natural disasters should then 
decrease the severity and impact of those conditions in the future. 
This NPRM will provide support for activities to increase the 
resilience of the NHS.
    When FHWA repealed the 2017 GHG measure, the Agency exercised its 
discretion to reinterpret the definition of performance to exclude 
environmental performance due, in part, to the eligibility criteria for 
projects under the NHPP 23 U.S.C. 119(d). Under 23 U.S.C. 119(d)(1)(A), 
eligible projects must be ``a project or part of a program of projects 
supporting progress toward the achievement of national performance 
goals for improving infrastructure condition, safety, congestion 
reduction, system reliability, or freight movement on the National 
Highway System.'' FHWA determined that these goals are consistent with 
an interpretation of ``performance'' that focuses on the physical 
condition of the system and the efficiency of transportation operations 
across the system, and do not support FHWA's prior, broader 
interpretation of ``performance'' under 23 U.S.C. 150(c)(3), which 
encompassed environmental performance. 83 FR 24924.
    FHWA has reexamined the rationale in the May 2018 repeal final rule 
and has determined that performance measures under 23 U.S.C. 150(c)(3) 
are not limited only to the national performance goals identified in 23 
U.S.C. 119(d)(1). Section 119(d)(1), Title

[[Page 42409]]

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). 
As previously noted, 23 U.S.C. 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)'', which 
includes the environmental sustainability national goal under 23 U.S.C. 
150(b)(6). Risk-based asset management planning under 23 U.S.C. 119(e) 
includes consideration of life-cycle costs and risk management, 
financial planning, and investment strategies. As previously discussed, 
rapidly changing climate and increased weather extremes due to fossil 
fuel combustion directly impact the condition and performance of 
transportation facilities due to increases in heavy precipitation, 
coastal flooding, heat, wildfires, and other extreme events. Extreme 
events will lead to increasing transportation challenges, inducing 
societal and economic consequences. The number of billion-dollar 
climate disaster events has been much higher over the last five years 
than the annual average over the last 30 years.\30\ Low-income and 
vulnerable populations are disproportionately affected by the impacts 
of climate change.\31\ 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. Measuring environmental 
performance though the GHG performance measure will assist States to 
consider CO<INF>2</INF> emissions from transportation in the 
performance management framework and help frame responses to the 
growing climate crisis. Therefore, the GHG performance measure is 
appropriate in light of 23 U.S.C. 119. FHWA therefore has determined 
that the Agency's interpretation of ``performance'' to include 
``environmental performance'' is consistent with 23 U.S.C. 119.
---------------------------------------------------------------------------

    \30\ NOAA National Centers for Environmental Information (NCEI) 
U.S. Billion-Dollar Weather and Climate Disasters (2022). https://www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw-7w73.
    \31\ Ebi, K.L., J.M. Balbus, G. Luber, A. Bole, A. Crimmins, G. 
Glass, S. Saha, M.M. Shimamoto, J. Trtanj, and J.L. White-Newsome, 
2018: Human Health. In Impacts, Risks, and Adaptation in the United 
States: Fourth National Climate Assessment, Volume II [Reidmiller, 
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. 
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research 
Program, Washington, DC, USA, pp. 539-571. doi: 10.7930/
NCA4.2018.CH14.
---------------------------------------------------------------------------

    FHWA also reiterates the Agency's statements in the PM3 final rule 
that several other provisions in Title 23, U.S.C., support FHWA's 
proposal to address GHG emissions in this rulemaking:
    <bullet> 23 U.S.C. 101(b)(3)(G) is a transportation policy 
declaration that ``. . . transportation should play a significant role 
in promoting economic growth, improving the environment, and sustaining 
the quality of life . . .''.
    <bullet> 23 U.S.C. 134(a)(1) is a congressional statement of 
transportation planning policy that it is in the national interest ``. 
. . to encourage and promote the safe and efficient management, 
operation, and development of surface transportation systems . . . 
while minimizing transportation-related fuel consumption and air 
pollution through metropolitan and statewide transportation planning 
processes identified in this chapter . . .''.
    <bullet> 23 U.S.C. 134(c)(1) requires MPOs to develop long range 
plans and transportation improvement programs to achieve the objectives 
in 23 U.S.C. 134(a)(1) through a performance-driven, outcome-based 
approach to planning.
    <bullet> 23 U.S.C. 134(h) defines the scope of the metropolitan 
planning process. Paragraphs (h)(1)(E) and (I), respectively, require 
consideration of projects and strategies that will ``. . . protect and 
enhance the environment, promote energy conservation, improve the 
quality of life . . .'' and ``. . . improve the resiliency and 
reliability of the transportation system . . .''.
    <bullet> 23 U.S.C. 135(d)(1) defines the scope of the statewide 
planning process. Paragraphs (d)(1)(E) and (I), respectively, require 
consideration of projects, strategies, and services that will ``. . . 
protect and enhance the environment, promote energy conservation, 
improve the quality of life . . .'', and ``. . . improve the resiliency 
and reliability of the transportation system . . .''.
    <bullet> 23 U.S.C. 135(d)(2) requires the statewide transportation 
planning process to ``. . . provide for the establishment and use of a 
performance-based approach to transportation decision-making to support 
the national goals described in section 150(b) of this title . . .''.
    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 assessment of environmental performance, 
including GHG emissions and other climate-related matters. As noted in 
FHWA's May 2018 repeal of the 2017 GHG measure, nothing in the statute 
specifically requires FHWA to adopt a GHG emissions measure. 83 FR 
24923. However, consistent with all of the statutory provisions cited 
above, no provision of law prohibits FHWA from adopting a GHG emissions 
measure.
    Third, FHWA's decision to adopt the GHG measure under 23 U.S.C. 
150(c)(3) does not conflict with the on-road mobile source emissions 
provision in 23 U.S.C. 150(c)(5). Section 150(c)(5), Title 23, U.S.C., 
requires that the Secretary establish performance measures for the 
purposes to carrying out the CMAQ Program under 23 U.S.C. 149. FHWA has 
established performance measures pursuant to 23 U.S.C. 150(c)(5) to 
assess traffic congestion and on-road mobile source emissions under 23 
CFR 490.701 through 490.811. In the May 2018 repeal final rule, FHWA 
stated its belief that because Congress specifically designated a part 
of 23 U.S.C. 150(c) for on-road mobile source emissions measures, it is 
reasonable to conclude that Congress did not intend the other parts of 
23 U.S.C. 150(c) to be used to address other similar or related 
performance measures, such as the GHG measure, and that by placing the 
on-road mobile source emissions provision in 23 U.S.C. 150(c)(5), 
Congress limited the types of emissions that could be the subject of a 
performance measure to those listed in the CMAQ statute. 83 FR 23924. 
FHWA has reexamined this reasoning and has determined that 23 U.S.C. 
150(c)(5) is consistent with FHWA's proposal to adopt performance 
measures related to emissions if they support the achievement of the 
national performance goals.
    Under 23 U.S.C. 150(c), Congress requires FHWA to establish 
performance measures for a number of programs, including the CMAQ 
Program under 23 U.S.C. 149. This language indicates congressional 
intent that FHWA establish a performance measure for on-road mobile 
source emissions for the purposes of carrying out the CMAQ Program. 
However, 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. FHWA is proposing 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.

[[Page 42410]]

    Notably, Congress's inclusion of a specific CMAQ measure indicates 
that Congress was contemplating CMAQ and its coverage in terms of 
geography and types of emissions when drafting 23 U.S.C. 150. Since 
Congress did not expressly limit emissions measures to those related to 
CMAQ, it is reasonable to conclude that Congress intended FHWA to 
retain the discretion to adopt other emissions measures, such as the 
GHG measure.
    In addition, the measures described in 23 U.S.C. 150(c) inherently 
include overlapping topics. For example, freight movement in 23 U.S.C. 
150(c)(6) (see also 23 CFR part 490, subpart F) clearly involves 
congestion reduction or management, but CMAQ measures under 23 U.S.C. 
150(c)(5) do not foreclose a congestion-related measure. Therefore, the 
best interpretation of 23 U.S.C. 150 contemplates measures that may 
overlap to achieve the national goals.
    For all of these reasons, upon reexamination of FHWA's repeal of 
the 2017 GHG measure, FHWA asserts the proposed measure is consistent 
FHWA's authority under 23 U.S.C. 150(c).

C. Additional Rationale for the Proposed GHG Measure

    FHWA is proposing to establish a GHG emissions measure for 
environmental performance in accordance with 23 U.S.C. 150(c)(3). This 
measure will incorporate an important environmental aspect of system 
performance into the set of national performance measures and support 
the national transportation goal of environmental sustainability in the 
Federal-aid highway program and the national performance management 
program established in 23 U.S.C. 150. FHWA has previously identified 
that a GHG performance measure will help address transportation GHG 
emissions. In the 2017 PM3 final rule, FHWA noted that reducing GHG 
emissions involves strategies to reduce the growth in future travel 
activity, such as the shift of travel to public transportation and non-
motorized options, and improve system efficiency, such as optimizing 
the operation, use, and maintenance of transportation networks. The PM3 
final rule noted that these activities are influenced by the planning 
activities and investment decisions of State DOTs and MPOs. 82 FR 8997. 
FHWA is reasserting that establishing a GHG measure in FHWA's 
Transportation Performance Management Program would help implement a 
national policy to reduce GHG emissions. As discussed in Section III(A) 
of this NPRM, the GHG performance measure would provide a consistent 
basis for estimating on-road GHG emissions and would aid States and 
MPOs in planning GHG emissions reductions and evaluating progress 
toward national, State, and local GHG goals. In addition, establishing 
a GHG measure also would inform the future investment decisions of the 
Federal Government, State DOTs, and MPOs towards achieving their 
targets or goals.
    As discussed in Section III(A) of this NPRM, FHWA anticipates this 
measure will assist with comprehensive transportation planning. Current 
performance measures are integrated into the planning process and used 
to track progress and attainment of critical outcomes of the goals. 23 
U.S.C. 135(d)(2) and 23 U.S.C. 134(h)(2). Establishment of the GHG 
emissions performance measure aligns with current requirements, goals, 
and processes under the planning requirements. Through these processes, 
the GHG performance measure would advance the Federal-aid highway 
program's national goal for environmental sustainability identified 
under 23 U.S.C. 150(b)(6). In addition, transportation investments 
advanced to achieve GHG performance measure targets can have co-
benefits that would assist States and MPOs make progress towards other 
performance measures listed in 23 U.S.C. 119(d)(1)(A). For instance, 
the construction of a new grade-separated transit facility has the 
potential to reduce travel on neighboring roadways, which in turn would 
reduce congestion, improve safety, and reduce criteria pollutant 
emissions in addition to reducing on-road GHG emissions.
    FHWA acknowledges that in proposing to establish this measure, FHWA 
would be largely reestablishing the measure repealed in 2018. 83 FR 
24920. FHWA expects that States and MPOs have no reliance interests 
resulting from the repeal or, for that matter, from the 2017 GHG 
measure. FHWA repealed the 2017 GHG measure before the respective due 
dates for target setting or reporting, and FHWA assumes that no State 
DOTs or MPOs incurred any costs due to 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 
proposed 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. The proposed 
measure would be a new one. As a result, FHWA expects that States or 
MPOs would not have any reliance interests based on the repeal of the 
2017 GHG measure. Moreover, it is FHWA's policy judgment that 
implementation of the proposed GHG measure, which would advance the 
national policy objectives stated in section 1 of E.O. 13990 and E.O. 
14008 and the Department's strategic goal of reducing GHG emissions 
from transportation and would increase accountability through reporting 
requirements, would outweigh any minimal reliance interests, to the 
extent they exist.
1. Costs and Benefits
    The May 2018 repeal final rule determined that ``the measure 
imposes unnecessary regulatory burdens on State DOTs and MPOs with no 
predictable benefits,'' and stated that ``FHWA does not believe the 
speculative and uncertain benefits are a sufficient reason to retain 
the GHG measure, especially given the very definite costs associated 
with the measure.'' 83 FR 24924-25. FHWA previously noted that since 
benefits that may possibly flow from the GHG measure came from its 
potential to influence State DOT and MPO investment decisions, and it 
is not possible to conclude with certainty the GHG measure would cause 
State DOTs and MPOs to make decisions that change CO<INF>2</INF> 
emissions levels. 83 FR 24925. Thus, FHWA concluded that it was not 
possible to predict, with any reasonable degree of certainty, the 
extent to which the influence effects of the GHG measure might result 
in actual changes in emissions levels.
    FHWA has reexamined this approach and anticipates that this 
proposed rule would result in substantial benefits that are neither 
speculative nor uncertain. This measure would create environmental 
sustainability benefits by supporting more informed choices about 
transportation investments and other policies to help achieve net-zero 
emissions economy-wide by 2050. Reporting GHG emissions and setting GHG 
emissions targets would increase public awareness of GHG emissions 
trends, promote the consideration of GHG emissions in transportation 
planning decisions, and more transparently characterize the impact of 
these decisions on GHG emissions. These benefits are not easily 
quantifiable.
    Climate change results from the incremental addition of GHG 
emissions from millions of individual sources, which collectively have 
a large impact on a global scale. The totality of climate change 
impacts is not attributable to any single action, but is exacerbated 
(or

[[Page 42411]]

reduced) by a series of actions, including actions taken under the 
Federal-aid highway program. Policies to reduce GHG pollution from 
transportation align with environmental performance and are essential 
to minimize the impacts from climate change discussed in the Fourth 
National Climate Assessment, which include sea level rise and increased 
frequency and severity of heat waves and heavy precipitation, coastal 
flooding, wildfires, and other extreme events.\32\
---------------------------------------------------------------------------

    \32\ See U.S. GCRP 2017 Climate Science Special Report, at 12-
34.
---------------------------------------------------------------------------

    As stated in section 101 of E.O. 14008, U.S. engagement to address 
the climate crisis is both necessary and urgent to avoid ``a dangerous, 
potentially catastrophic, climate trajectory.'' Significant short-term 
global reductions in GHG emissions and net-zero global emissions by 
2050 or before will be important. 86 FR 7619.
    Achieving CO<INF>2</INF> reductions of this magnitude will depend 
on actions such as increasing the adoption of zero emission vehicles, 
improving system efficiency, and reducing the growth in future on-road 
travel activity through the shift from single occupant vehicles and 
other measures that reduce on-road travel demand. Actions such as these 
are significantly influenced by the planning activities and investment 
decisions of State DOTs and MPOs. A GHG measure emerged as a leading 
candidate for measuring the environmental aspect of the performance of 
the highway system during FHWA and stakeholder discussions in 2009. 
Subsequently, FHWA initiated a research project to investigate GHG 
measures that would align with performance-based planning and 
programming, as well as how State DOTs and MPOs could go about 
implementing such a measure.\33\
---------------------------------------------------------------------------

    \33\ A Performance-Based Approach to Addressing Greenhouse Gas 
Emissions through Transportation Planning, FHWA 2013, available at 
https://www.fhwa.dot.gov/environment/sustainability/energy/publications/ghg_planning/ghg_planning.pdf.
---------------------------------------------------------------------------

    The proposed GHG measure aligns with the national goal of reducing 
CO<INF>2</INF> emissions 50 to 52 percent below 2005 levels by 2030 in 
support of the Paris Agreement. The proposed GHG measure could be 
utilized to drive decisions that help to meet or exceed the national 
goals under that agreement and create transparency for policy maker 
decisions to achieve those goals and as a means to measure progress. 
The process of setting targets creates transparency, allowing 
stakeholders and the public to see what goals are being set, how they 
are being pursued, and results produced by the measure. The proposed 
GHG measure also provides greater visibility and accountability for GHG 
emissions due to mandatory reporting requirements.
    FHWA has also re-evaluated the costs of compliance with the 
proposed measure and estimated total 10-year costs of $11,022,835 at a 
7% discount rate and $12,887,491 at a 3% discount rate. These costs, 
which reflect 2020 loaded wage rates,\34\ are marginally greater than 
costs calculated in the 2018 repeal final rule, which used 2014 loaded 
wage rates, and estimated total costs of $10,891,892 at a 7% discount 
rate and $12,805,709 at a 3% discount rate. FHWA has determined that 
implementation of a GHG measure would require fewer hours of State DOT 
and MPO staff time than estimated for the 2018 repeal final rule, 
primarily since the cost analysis for this proposed rule no longer 
assumes that MPOs will adjust their targets during mid-performance 
periods of 2024 and 2028. The reduction in estimated labor hours from 
this revised assumption is partly offset by additional estimated labor 
hours that would be required to address the new requirement for joint 
urbanized area targets.
---------------------------------------------------------------------------

    \34\ A loaded wage rate reflects an annual salary, including 
benefits, that is converted to an hourly wage rate.
---------------------------------------------------------------------------

2. Duplication of Efforts
    The 2018 repeal final rule evaluated whether the 2017 GHG measure 
was potentially duplicative of other government efforts, both at the 
Federal and State level, based on direction from previously applicable 
E.O.s to reduce regulatory costs and burdens.\35\ FHWA concluded at 
that time that the data needed to support the 2017 GHG measure was at 
least somewhat duplicative of the EPA and DOE data on CO<INF>2</INF> 
emissions, and this duplication was a concern and a factor that 
supported repeal of the GHG measure. However, FHWA has reexamined this 
duplication in light of recent E.O.s prioritizing actions to address 
climate change.\36\ FHWA has determined that the GHG measure is 
appropriate even if DOE and EPA data or other government efforts 
provide some information about CO<INF>2</INF> emissions trends in the 
transportation sector, for the reasons discussed below.
---------------------------------------------------------------------------

    \35\ See E.O. 13771, ``Reducing Regulation and Controlling 
Regulatory Costs,'' E.O. 13777, ``Enforcing the Regulatory Reform 
Agenda,'' E.O. 13783, ``Promoting Energy Independence and Economic 
Growth.''
    \36\ E.O. 13990, ``Executive Order on Protecting Public Health 
and the Environment and Restoring Science to Tackle the Climate 
Crisis,'' section 1; see E.O. 13992, ``Revocation of Certain 
Executive Orders Concerning Federal Regulation'' (revoking E.O. 
13771 and E.O. 13777).
---------------------------------------------------------------------------

    Specifically, the 2018 repeal final rule identified that several 
States and MPOs were already tracking CO<INF>2</INF> emissions 
voluntarily or to comply with State requirements. However, FHWA has 
examined a 2018 survey of 52 State DOTs to evaluate whether States are 
tracking CO<INF>2</INF> emissions. The survey indicates that relatively 
few State DOTs are currently addressing GHG emissions, and even fewer 
are using performance measures and quantitative approaches to do 
so.\37\ In response to the survey, nine States reported they 
``externally communicate progress regarding plans or projects which 
contribute to achieving GHG targets or goals'' (Question 8). A smaller 
subset of this group reported they have established quantitative or 
performance-based approaches related to GHG emissions, with three 
States reporting the implementation of quantitative measures with 
reduction targets, and one reporting the implementation of quantitative 
measures without a reduction target (Question 5). Similarly, four 
States indicated that they have developed an inventory and/or forecast 
specifically to support performance metrics (Question 4). Therefore, 
FHWA now concludes that the proposed GHG measure would not be 
duplicative of existing efforts as the majority of State DOTs are not 
currently tracking and addressing GHG emissions.
---------------------------------------------------------------------------

    \37\ National Cooperative Highway Research Program (NCHRP) 
Report 25-56, Methods for State DOTs to Reduce Greenhouse Gas 
Emissions from the Transportation Sector. Currently under pre-
publication review by the Transportation Research Board.
---------------------------------------------------------------------------

    In addition, the 2018 repeal final rule asserted that other Federal 
agencies, such as the EPA and the DOE, had undertaken regulatory and 
other efforts to address CO<INF>2</INF> emissions, including the annual 
DOE publication of State-by-State data on CO<INF>2</INF> emissions for 
the transportation sector, which includes data on CO<INF>2</INF> 
emissions from all mobile sources (e.g., aviation, highway), not just 
motor vehicles (although the published table does not break the 
CO<INF>2</INF> emissions data into subcategories, such as 
CO<INF>2</INF> emissions on the NHS). The 2018 repeal final rule 
concluded that this information, while not precisely identical to the 
information provided by the 2017 GHG measure, provides States with 
trend information on CO<INF>2</INF> emissions from mobile sources in 
each State, and the highway component is based on the same fuel sales 
information used for the GHG measure. However, upon reevaluation, FHWA 
has determined that the proposed GHG

[[Page 42412]]

measure would provide State DOTs with valuable information that is not 
already covered by other Federal agencies. Data published by DOE and 
the EPA do not specifically cover the NHS. In addition, while the 2018 
repeal final rule identified that DOE publishes State-level 
CO<INF>2</INF> estimates for the transportation sector, this data is 
not disaggregated to reflect CO<INF>2</INF> emissions from on-road 
mobile sources. Sector-level data is not ideal for evaluating 
CO<INF>2</INF> emissions trends associated with roadways or the NHS, 
since fluctuations in CO<INF>2</INF> emissions from other 
transportation sources (such as aircraft, boats and rail) can 
significantly influence year-over-year changes. Finally, transportation 
sector CO<INF>2</INF> emissions trends published by DOE and the EPA lag 
FHWA's publication of fuel use data by up to a year, and accordingly 
the GHG measure will be more useful for setting targets, identifying 
CO<INF>2</INF> reduction strategies, and monitoring outcomes. For these 
reasons, FHWA has determined that the GHG measure would provide a 
valuable source of data and is not duplicative of the DOE and EPA data 
discussed in this section of the preamble. Indeed, FHWA believes that 
the GHG measure is an integral part of the whole-of-Government approach 
to the climate crisis as described in E.O. 14008.

D. Establishing Targets and Schedule for Implementation

    The 2017 rule did not include any language about how the State DOTs 
and MPOs were to establish GHG performance targets. Since that time, 
however, the United States has committed to achieving net-zero GHG 
emissions by 2050 and established an aggressive national goal of 
reducing CO<INF>2</INF> emissions 50 to 52 percent below 2005 levels by 
2030 in support of the Paris Agreement. As noted above, in 2019 the 
transportation sector accounted for 34.6 percent of total U.S. 
CO<INF>2</INF> emissions, with 83.2 percent of the sector's total 
CO<INF>2</INF> emissions coming from on-road sources, and the sector is 
expected to remain the largest source of U.S. CO<INF>2</INF> emissions 
through 2050. This proposed measure would require State DOTs and MPOs 
to establish declining targets for GHG emissions from such sources to 
achieve the national goals for 2030 and 2050. The declining targets 
should be consistent with national, State, and local GHG emission 
reduction goals for 2030 and 2050. However, State DOTs and MPOs would 
have flexibility in setting targets. For example, a State DOT might set 
targets that would result in steady, incremental progress toward net-
zero emissions, or that achieve aggressive early GHG emissions 
reductions, or be more gradual at first and become more aggressive 
later. When setting targets, a State DOT also could draw on any 
relevant work by State environmental agencies or other State bodies. 
FHWA is not proposing to prescribe what declining targets would look 
like in each State. However, the States should be able to demonstrate 
how their targets fit into a longer timeframe of emissions reductions 
that will reach the national GHG goals for 2030 and 2050.
    In addition, FHWA is proposing to require that MPOs establish a 
single joint target for each urbanized area that contains NHS mileage 
and that is overlapped by the boundaries of two or more metropolitan 
planning areas. This requirement would help ensure a coordinated 
approach to GHG emission reductions in areas where multiple MPOs serve 
a single urbanized area. For example, the urbanized area for Boston, 
Massachusetts-New Hampshire-Rhode Island is overlapped by 11 MPOs, and 
the urbanized area for Tampa-St Petersburg, Florida, is overlapped by 4 
MPOs. Coordinated systems and region-based approaches to reduce GHG 
emissions are intended to ensure the collaboration necessary to achieve 
meaningful reductions in GHG emissions. FHWA has not proposed joint 
targets with State DOTs because State DOTs and MPOs are already 
required to coordinate on the establishment of targets to the maximum 
extent practicable. 23 CFR 450.206(c) and 450.306(d)(2)(ii); see also 
23 CFR 490.105(f)(2). As discussed in Part V of this preamble, FHWA is 
seeking comment on the efficacy of the proposed approach and how it 
could best be implemented.
    As the recent IPCC report emphasizes, time is of the essence in 
addressing GHG emissions, including those from the transportation 
sector. FHWA also anticipates that States should have adequate time to 
establish targets for the proposed GHG measure before targets are 
reported in the State Biennial Performance Report due to FHWA by 
October 1, 2022. This expedited schedule is proposed to allow this new 
measure to be in place at the start of TPM's 4-year reporting period, 
represented by the baseline performance period report due by October 1, 
2022. FHWA recognizes that it is possible the due date to report State 
DOT initial targets for the proposed GHG measure may need to be 
adjusted. FHWA requests comment on what the due date should be in the 
event a final rule is not effective in advance of the October 1, 2022, 
reporting date. As stated elsewhere in this proposal, FHWA also will 
consider public comments to establish a GHG measure for States and MPOs 
in a final rule based on this proposed rule.
    For the proposed measure, State DOTs would be required to establish 
2- and 4-year targets, and report on progress biennially. MPOs would be 
required to establish 4-year targets for their metropolitan planning 
area. MPOs would establish additional 4-year targets for select 
urbanized areas. MPOs would report progress toward the achievement of 
targets every 4 years to the State DOT in a manner that is documented 
and mutually agreed upon. Pursuant to 23 U.S.C. 135(d)(2)(B)(i)(II), 
the proposed measure would be subject to 23 CFR 490.105(e)(2), which 
requires State DOTs to coordinate with relevant MPOs to establish 
targets, to the maximum extent practicable. The coordination would be 
accomplished in accordance with the transportation planning process set 
forth in 23 CFR part 450. FHWA recognizes the need for State DOTs and 
MPOs to have a shared vision on expectations for future condition/
performance and target establishment process, one that is consistent 
with national, State, and local policies and targets for total GHG 
emission reductions.

IV. Section-by-Section Discussion of the Proposed Changes

    FHWA proposes changes to two subparts of 23 CFR part 490: Subpart 
A--General Information, which applies to all of the regulations 
throughout part 490; and Subpart E--National Performance Management 
Measures to Assess Performance of the National Highway System, where 
FHWA proposes to locate the GHG measure. This section of the preamble 
describes the proposed changes and the reasons behind them. 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). FHWA also invites comments on the proposed changes 
and identifies areas where comments may be particularly useful in 
facilitating implementation of the GHG measure.

Subpart A--General Information

Section 490.101 Definitions
    FHWA proposes to amend Sec.  490.101 by adding a new definition of 
the term Fuels and Financial Analysis System-Highways (FUELS/FASH) for 
purposes of part 490. The term refers to FHWA's system of record for 
motor fuel, highway program funding, licensed drivers, and registered 
vehicles data. The FUELS/

[[Page 42413]]

FASH system is used to facilitate the collection, validation, review, 
analysis, and finalization of data reported by State agencies. 
Currently, FHWA uses the FUELS/FASH data to respond to legislative 
requests or prepare reports to the Congress; analyze existing and 
proposed Federal-aid funding methods and levels and the assignment of 
user cost responsibility; maintain a critical information base on fuel 
availability, use, and revenues generated; and calculate apportionment 
factors. The system is used to facilitate the collection, validation, 
review, analysis, and finalization of data reported by State agencies 
on an annual or monthly basis. Including the definition in Sec.  
490.101 is consistent with the inclusion in this section of definitions 
of other systems and databases used in performance management 
reporting, including Highway Performance Monitoring System (HPMS) and 
National Bridge Inventory (NBI).
Section 490.105 Establishment of Performance Targets
    FHWA proposes to add five new paragraphs to Sec.  490.105 regarding 
the establishment of performance targets and proposes adjustments to 
five existing paragraphs due to the proposed GHG measure. First, 
proposed new Sec.  490.105(c)(5) would add a reference to proposed 
Sec.  490.507(b) for the GHG performance measure to the existing list 
of applicable performance measures for State DOTs and MPOs that 
include, within their respective geographic boundaries, any portion of 
the applicable transportation network (i.e., for the GHG measure, all 
mainline highways on the Interstate and non-Interstate NHS). Second, 
proposed changes would affect the target scope provisions of Sec.  
490.105(d). Proposed new Sec.  490.105(d)(1)(v) would require that 
State DOTs and MPOs establish statewide and metropolitan planning area 
wide targets, respectively, that represent the condition/performance of 
the NHS as specified in proposed Sec.  490.503(a)(2) for the GHG 
measure for the NHS specified in proposed Sec.  490.507(b). Proposed 
new Sec.  490.105(d)(4) would require that certain MPOs also establish 
joint targets for the GHG measure for select urbanized areas specified 
in proposed new Sec.  490.105(f)(10). Additionally, FHWA proposes to 
revise the introductory text of Sec.  490.105(d) to include the scope 
of urbanized areas, consistent with proposed Sec.  490.105(d)(4). In 
Part V of this preamble, FHWA encourages submission of comments on the 
type of target setting requirements that would best help MPOs improve 
the environmental performance of their transportation systems with 
respect to GHG emissions.
    Furthermore, FHWA proposes changes to Sec.  490.105(e) regarding 
the establishment of targets. FHWA proposes to revise existing Sec.  
490.105(e)(1), which addresses the schedule by which States are 
required to establish performance targets. The proposed revisions would 
clarify that State DOTs are required to establish initial targets for 
the GHG measure identified in proposed Sec.  490.507(b) no later than 
October 1, 2022. The structure of the paragraph also would change to 
clarify the distinct deadline for performance targets for the GHG 
measure.
    In addition, the proposed revisions would clarify the existing 
requirement that State DOTs were to establish initial targets for all 
other performance measures no later than February 20, 2018, by 
correcting the date to May 20, 2018. Under 23 U.S.C. 150(d)(1), State 
DOTs are required to establish such targets not later than one year 
after the promulgation of FHWA's final rule establishing performance 
measures. As discussed previously, FHWA promulgated the PM3 final rule 
establishing NHPP performance measures on January 18, 2017 (82 FR 
5970), with an effective date of February 17, 2017. That effective date 
corresponds to the February 20, 2018, deadline for target establishment 
in the current regulations. However, FHWA later delayed the effective 
date of the PM3 final rule until May 20, 2017 (82 FR 14438), which 
corresponds to an initial date of May 20, 2018, for establishing 
targets for NHPP performance measures other than the proposed GHG 
measure. The proposed rule would codify the May 20, 2018, date in Sec.  
490.105(e)(1) for accuracy, even though the date has passed.
    FHWA proposes to require that State DOTs establish initial targets 
for the GHG measure no later than October 1, 2022, to facilitate 
implementation of the GHG measure on the same schedule as the other 
NHPP performance measures. The proposed initial target establishment 
date is expected to synchronize this new GHG measure with the reporting 
cycle in part 490 for NHPP measures. FHWA believes that such a schedule 
will increase the potential for efficiencies and ease administrative 
efforts on the part of State DOTs and MPOs. FHWA anticipates that State 
DOTs would be able to establish targets to be reported in the State 
DOT's Biennial Performance Report due to FHWA by October 1, 2022. 
However, the proposed GHG measure is important to advancing the 
national policies discussed in the ``Statement of the Problem, Legal 
Authority, and Rationale'' section of this preamble to confront the 
climate crisis. FHWA encourages State DOTs to consider preparing for 
implementation of the proposed GHG measure to help advance those 
national policies.
    Proposed new Sec.  490.105(e)(10) would require declining targets 
for reductions in tailpipe CO<INF>2</INF> emissions on the NHS that 
align with the 2030 and net-zero by 2050 emissions reduction targets 
discussed earlier. In addition, FHWA proposes revising Sec.  
490.105(f)(1)(i) to include the requirement that the targets 
established by an MPO for the GHG measure will also be declining 
targets for reducing tailpipe CO<INF>2</INF> emissions on the NHS.
    FHWA also proposes revisions to Sec.  490.105(f) regarding MPO 
establishment of targets. FHWA proposes to revise Sec.  490.105(f)(3) 
to clarify that the existing target establishment options for MPOs 
apply to the targets established for the metropolitan planning area. 
Specifically, FHWA proposes to add language clarifying that the MPOs 
shall establish targets ``for the metropolitan planning area'' by 
either of the two options described. No other changes to Sec.  
490.105(f)(3) are proposed, but the entire provision is included for 
convenience. In Part V(A) of this preamble, FHWA encourages submission 
of comments on the important issue of how targets established by State 
DOTs and MPOs for reduced emissions might be implemented in order to 
lead to improved environmental performance.
    Proposed new Sec.  490.105(f)(10) would require that certain MPOs 
establish joint targets for the GHG measure for select urbanized areas. 
These targets would be in addition to the targets for the metropolitan 
planning area required in Sec.  490.105(f)(1)(i). FHWA proposes that 
when an urbanized area that contains mainline highways on the 
Interstate or non-Interstate NHS, and any portion of that urbanized 
area is overlapped by the metropolitan planning area boundaries of two 
or more MPOs, those MPOs would need to coordinate to establish a 
single, joint target for that urbanized area. FHWA proposes to require 
a joint target for select urbanized areas in recognition of the 
importance of all MPOs that serve the same urbanized area working 
together regionally to solve common transportation problems in order to 
address GHG emissions.
    FHWA proposes in Sec.  490.105(f)(10)(i) that NHS designations and 
urbanized

[[Page 42414]]

areas shall be determined from the data, contained in HPMS, one year 
before the State DOT Baseline Performance Period Report is due to FHWA. 
This is consistent with existing requirements in Sec.  
490.105(f)(5)(iii)(E) and would not add additional burden. FHWA 
proposes to specify in Sec.  490.105(f)(10)(ii) that only one target 
shall be established for the entire urbanized area regardless of 
roadway ownership and that each MPO shall report the joint target for 
the urbanized area. In Sec.  490.105(f)(10)(iii), FHWA proposes that 
any joint target established for an urbanized area would be a 
quantifiable target. This is different than the existing options in 
Sec.  490.105(f)(3) that allow MPOs to agree to plan and program 
projects so that they contribute toward the accomplishment of the 
relevant State DOT target. For the MPOs' joint urbanized area targets, 
MPOs would need to establish a quantifiable value for the joint target. 
Under the proposed rule, that value could be the same as the State 
DOT's target. MPOs would not be required to adjust their joint target 
if the State DOT adjusts its target.
Section 490.107 Reporting on Performance Targets
    The proposed GHG measure would be subject to the biennial reporting 
requirements in Sec.  490.107, which includes reporting targets and 
performance. Proposed Sec.  490.107 would revise existing regulations 
governing biennial performance period progress reporting to provide the 
date for State DOTs to submit initial reports to FHWA that contain the 
GHG measure information, and would add references to the GHG measure 
identified in Sec.  490.507(b). Proposed Sec.  490.107 would add metric 
reporting requirements as part of the biennial reports State DOTs 
submit to FHWA that would be unique to the GHG measure. In addition, 
proposed Sec.  490.107 would add that MPOs report to the State DOT 
their metric calculation method, along with the calculation of tailpipe 
CO<INF>2</INF> emissions for the NHS (the metric used in calculating 
the measure) and all public roads within the MPO (the step before 
calculating the metric).
    As proposed, revised Sec.  490.107(b)(1) would update the existing 
requirement that State DOTs submit their first Baseline Performance 
Period Report (Baseline PPR) to FHWA by October 1, 2018, by providing 
that for the GHG measure, State DOTs are required to submit their first 
Baseline PPR containing information for the proposed GHG measure by 
October 1, 2022. This provision also would require State DOTs to submit 
subsequent Baseline PPRs to FHWA by October 1 every 4 years thereafter, 
which is consistent with other measures in 23 CFR part 490. FHWA 
proposes corresponding revisions to Sec.  490.107(b)(2) and (3) to 
provide the first time information for the GHG measure would be 
included in the Mid Performance Period Progress Report (Mid PPPR) would 
be October 1, 2024, and October 1, 2026, for the Full Performance 
Period Progress Report (Full PPPR). These additions would fold 
performance reporting for the proposed GHG measure into the existing 
reporting requirement and schedule for other performance measures in 23 
CFR part 490.
    Proposed new Sec.  490.107(b)(1)(ii)(H) would revise the existing 
regulations governing the content of Baseline PPRs to include a 
requirement that the State DOT report the GHG metric for the GHG 
measure and tailpipe CO<INF>2</INF> emissions on all public roads in 
each Baseline PPR. Specifically, such reporting would cover tailpipe 
CO<INF>2</INF> emissions on the NHS for the reference year and the two 
calendar years preceding the Baseline PPR and tailpipe CO<INF>2</INF> 
emissions on all public roads for the same time periods. Similarly, 
proposed Sec.  490.107(b)(2) would amend the existing regulations 
governing Mid PPPRs to provide the schedule for State DOTs to submit 
the first such reports to FHWA for the proposed GHG measure and to 
include information pertaining to the proposed GHG measure in the 
required content of such reports. First, proposed revisions to the 
second sentence of Sec.  490.107(b)(2)(i) would update the existing 
requirement that State DOTs submit their first Mid PPPR to FHWA by 
October 1, 2020, to require that the first Mid PPPR containing the 
proposed GHG measure information be submitted to FHWA by October 1, 
2024. This provision also would require State DOTs to submit subsequent 
Mid PPPRs containing the proposed GHG measure information to FHWA by 
October 1 every 4 years thereafter, which is consistent with other 
measures in 23 CFR part 490.
    Proposed new Sec.  490.107(b)(2)(ii)(J) would revise the 
requirements for the content of Mid PPPRs to include the GHG metric for 
the GHG measure and tailpipe CO<INF>2</INF> emissions for all public 
roads in each Mid PPPR. Such reporting would cover tailpipe 
CO<INF>2</INF> emissions for the NHS and all public roads for the two 
calendar years preceding the Mid PPPR.
    Proposed Sec.  490.107(b)(3) would amend the existing regulations 
governing Full PPPRs to provide the schedule for State DOTs to submit 
the first such reports to FHWA containing the proposed GHG measure and 
to include information pertaining to the proposed GHG measure in the 
required content of such reports. Proposed revisions to the second 
sentence of Sec.  490.107(b)(3)(i) would update the existing schedule 
requiring that State DOTs submit their first Full PPPR to FHWA by 
October 1, 2022, to require that the first Full PPPR containing the 
proposed GHG measure information be submitted to FHWA by October 1, 
2026. This provision also would require State DOTs to submit subsequent 
Full PPPRs containing the proposed GHG measure information to FHWA by 
October 1 every 4 years thereafter, which is consistent with other 
measures in part 490.
    Proposed new Sec.  490.107(b)(3)(ii)(I) would revise the content 
requirements for the Full PPPRs to include the GHG metric for the GHG 
measure and tailpipe CO<INF>2</INF> emissions for all public roads in 
each Full PPPR. Such reporting would cover tailpipe CO<INF>2</INF> 
emissions for the NHS and all public roads for the two calendar years 
preceding the Full PPPR.
    Finally, proposed revisions to Sec.  490.107(c)(1) would require 
each MPO to report in the system performance report in the metropolitan 
transportation plan, a description of its GHG metric calculation 
method, described in Sec.  490.511(d), including the calculation of 
tailpipe CO<INF>2</INF> emissions for the NHS and all public roads. 
FHWA considers documenting the method used to calculate the metric used 
in calculating the measure itself important for achieving consistency, 
providing transparency, and maintaining quality control in the reported 
measure calculations. FHWA also expects that MPO reporting of tailpipe 
CO<INF>2</INF> emissions on the NHS would provide useful information 
for State DOTs since these estimates would be expressed in absolute 
terms and could be easily summed to evaluate progress across MPOs. FHWA 
requests comment on whether MPOs should be required to provide the 
metric calculation method and their tailpipe CO<INF>2</INF> emissions 
to the State DOT outside of the system performance report to provide 
for more frequent information sharing. FHWA also requests comment on 
whether to specify a uniform metric calculation method for MPOs, as 
opposed to allowing a range of approaches that are referenced in the 
description of Sec.  490.511.

[[Page 42415]]

Section 490.109 Assessing Significant Progress Toward Achieving the 
Performance Targets for the National Highway Performance Program and 
the National Highway Freight Program
    FHWA proposes to amend Sec.  490.109 to update the sources of 
information that FHWA will use to assess NHPP target achievement and 
condition/performance progress for the GHG measure.\38\ First, FHWA 
proposes to add new Sec.  490.109(d)(1)(v), to provide that FHWA will 
extract data contained within FUELS/FASH on August 15 of the year in 
which the significant progress determination is made. This data would 
account for fuel use from the prior calendar year and the reference 
year. FUELS/FASH is proposed as the source of this information because 
it is a national, established, and validated data source for total fuel 
use as reported annually to FHWA by the States, Washington, DC, and 
Puerto Rico. FUELS/FASH is also the most accurate and up-to-date source 
known for this sort of information.
---------------------------------------------------------------------------

    \38\ FHWA regulations at 23 CFR 490.109 describe the method FHWA 
uses to determine if State DOTs have achieved or have made 
significant progress toward the achievement of their NHPP targets. 
Under the existing regulation, progress toward the achievement of an 
NHPP target would be considered ``significant'' when either of the 
following occur: the actual condition/performance level is equal to 
or better than the State DOT established target; or actual 
condition/performance is better than the State DOT identified 
baseline condition/performance. If a State DOT fails to achieve 
significant progress, the State DOT must document in its next report 
the actions it would take to achieve the targets.
---------------------------------------------------------------------------

    FHWA desires to use national datasets in a consistent manner as a 
basis for making its significant progress determinations. Thus, 
consistent with existing Sec.  490.109(d), FHWA proposes to use 
specific data sources that could be accessed by State DOTs and others 
if they choose to replicate FHWA's determinations.
    For consistency with existing requirements in part 490 that use 
August 15 as the date data will be extracted, FHWA is proposing to 
establish August 15 as the date on which FHWA will extract data from 
the HPMS and FUELS/FASH related to the proposed GHG measure. Providing 
a specific as-of-date related to the data used will create an incentive 
to ensure the data is submitted correctly and accurate information is 
available on that date. The August 15 date is considered the earliest 
time data reasonably would be available in a national data source. This 
proposed date considers the time State DOTs typically need to submit 
the relevant data to HPMS and FUELS/FASH, to process raw data, and to 
address missing or incorrect data that may be identified as a result of 
quality assessments conducted by the State DOT or FHWA. The proposed 
date also is necessary for FHWA to make the significant progress 
determination for the proposed GHG measure in a timely manner.
    FHWA additionally proposes to revise Sec.  490.109(d)(1)(vi), which 
would provide that baseline condition/performance data contained in 
FUELS/FASH, HPMS, and NBI of the year in which the Baseline PPR is due 
to FHWA represents baseline conditions/performances for the performance 
period for the measures in Sec.  490.105(c)(1) through (5).
    Finally, FHWA proposes to add Sec.  490.109(d)(1)(vii) to indicate 
that FHWA will extract data contained within the HPMS, on August 15 of 
the year in which the significant progress determination is made. These 
data would account for VMT from the prior calendar year and the 
reference year.
    FHWA proposes to add a new Sec.  490.109(e)(4)(iv) to specify that 
in order for the FUELS/FASH data to be sufficient for FHWA's 
significant progress determination, it must be cleared by August 15th. 
The requirement for data submitted by a State DOT to be cleared prior 
to use in the significant progress determination is consistent with the 
requirements for other such data sets in 23 CFR part 490.
    In addition, FHWA proposes to revise the existing regulations 
governing performance achievement by adding Sec.  490.109(f)(1)(v) to 
require that if significant progress is not made for the target 
established for the GHG measure in Sec.  490.507(b), the State DOT must 
document the actions it will take to achieve that target in its next 
biennial report. This provision would apply the same approach to the 
proposed GHG measure that the existing regulations use for other NHPP 
performance measures.\39\
---------------------------------------------------------------------------

    \39\ See 23 CFR 490.109 (regulations governing FHWA's assessment 
of significant progress toward achieving NHPP performance targets, 
among others). FHWA is not proposing specific penalties for failure 
to achieve performance targets. Failure to comply with Federal 
requirements, including requirements to set performance targets, may 
be subject to penalties under 23 CFR 1.36.
---------------------------------------------------------------------------

Subpart E--National Performance Management Measures to Assess 
Performance of the National Highway System

    In addition, FHWA proposes to amend several sections of 23 CFR part 
490, subpart E, to incorporate the GHG measure into existing 
regulations on NHPP performance measures.
Section 490.503 Applicability
    FHWA proposes to amend Sec.  490.503 by adding a new paragraph 
(a)(2) providing that the GHG measure specified in Sec.  490.507(b) is 
applicable to all mainline highways on the Interstate and non-
Interstate NHS. FHWA believes this applicability is appropriate because 
the measure, which is limited to CO<INF>2</INF> emissions on the NHS, 
aims to assess the performance of the NHS. See 23 U.S.C. 
150(c)(3)(A)(ii)(IV) and (V) (concerning measures to assess the 
performance of the Interstate System and the performance of the NHS 
(excluding the Interstate System), respectively).
Section 490.505 Definitions
    Proposed Sec.  490.505 would add two new definitions to the 
Definitions section of the National Performance Management Measures to 
Assess Performance of the National Highway System. First, FHWA proposes 
to define the term greenhouse gas (GHG) as any gas that absorbs 
infrared radiation (traps heat) in the atmosphere. The proposed 
definition further notes that 97 percent of on-road GHG emissions are 
CO<INF>2</INF> from burning fossil fuels, and that other transportation 
GHGs are methane (CH<INF>4</INF>), nitrous oxide (N<INF>2</INF>O), and 
hydrofluorocarbons (HFCs). This information comes from EPA's Inventory 
of U.S. Greenhouse Gas Emissions and Sinks.\40\ This information 
supports that CO<INF>2</INF> is the appropriate pollutant to examine in 
the GHG measure. The proposed definition also establishes the acronym, 
``GHG,'' that FHWA uses throughout the section to refer to greenhouse 
gas.
---------------------------------------------------------------------------

    \40\ See EPA Inventory of U.S. Greenhouse Gas Emissions and 
Sinks, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
---------------------------------------------------------------------------

    Second, FHWA proposes to define the term reference year as calendar 
year 2021 for the purpose of the GHG measure. As explained later in 
this preamble, under the proposed rule, the reference year would be 
used in calculating the GHG measure. FHWA proposes to use calendar year 
2021 for the reference year for the GHG measure because it is the most 
recent year for which data will be complete and available.
Section 490.507 National Performance Management Measures for System 
Performance
    FHWA proposes to revise the introductory text of Sec.  490.507 to 
refer to ``three'' performance measures to assess the performance of 
the Interstate System and the performance of the non-

[[Page 42416]]

Interstate NHS for purposes of carrying out the NHPP. The three 
measures would include the proposed GHG measure in addition to the two 
Travel Time Reliability measures in the existing regulations. In 
addition, FHWA proposes to add a new Sec.  490.507(b) to describe the 
GHG measure as the percent change in tailpipe CO<INF>2</INF> emissions 
on the NHS compared to the reference year. FHWA proposes a GHG measure 
that uses existing data sources in order to minimize the burden on 
transportation agencies. Because FHWA is establishing this measure 
under 23 U.S.C. 150(c)(3), it applies to the NHS in all States and 
metropolitan planning areas. The measure would be calculated by 
multiplying motor fuel sales volumes already reported by State DOTs to 
FHWA though the FUELS/FASH system by FHWA-supplied emissions factors 
for the CO<INF>2</INF> per gallon of fuel, and the percentage of VMT on 
the NHS. The percent change from the current year to the reference year 
would then be calculated. As defined in proposed Sec.  490.505, the 
reference year would be calendar year 2021.
Section 490.509 Data Requirements
    FHWA proposes to revise Sec.  490.509 to add three new paragraphs 
regarding the GHG measure. Proposed Sec.  490.509(f) would provide that 
FHWA plans to post on the FHWA website the CO<INF>2</INF> emissions 
factors for each on-road fuel type. The emissions factors are needed to 
calculate the GHG metric for the GHG measure in Sec.  490.105(c)(5). 
FHWA would post this information in order to ensure that a consistent 
factor is used by all DOTs and MPOs for each fuel type. For these 
factors, FHWA is considering using information from EPA's MOVES \41\ 
model, Argonne National Laboratory's GREET \42\ model, CO<INF>2</INF> 
coefficients published by the Energy Information Administration, or 
other U.S. Government published data sources. FHWA requests comments on 
any U.S. Government emissions factors or calculation methods that may 
be useful.
---------------------------------------------------------------------------

    \41\ Motor Vehicle Emissions Simulator.
    \42\ Greenhouse Gases, Regulated Emissions, and Energy Use in 
Technologies.
---------------------------------------------------------------------------

    Proposed Sec.  490.509(g) would establish a data source for total 
fuel use by fuel type, which is needed for the calculation of the GHG 
measure, as described in Sec.  490.513. The proposed data source is 
FHWA's FUELS/FASH system, which reports gallons of fuel used by State 
across multiple fuel types.
    Proposed Sec.  490.509(h) would require that VMT data used come 
from HPMS. This data would include estimates of both NHS VMT and total 
VMT developed from HPMS data available as of August 15 and would 
represent the previous calendar year.
Section 490.511 Calculation of National Highway System Performance 
Metrics
    FHWA proposes to include in Sec.  490.511 new provisions for the 
calculation of a ``GHG metric,'' the annual total tailpipe 
CO<INF>2</INF> emissions on the NHS, for the GHG measure. Under the 
existing performance management regulations, the term ``metric'' means 
a quantifiable indicator of performance or condition. 23 CFR 490.101. 
Proposed Sec.  490.511(a)(2) would add a reference to the ``GHG 
metric'' to the existing regulations that describe the performance 
metrics that are required for the NHS performance measures specified in 
Sec.  490.507. The proposed rule uses ``NHS'' to mean the mainline 
highways of the NHS, consistent with the applicability of the measure 
described in proposed Sec.  490.503(a)(2). The definition of the term 
``mainline highways'' specifically excludes ramps, shoulders, turn 
lanes, crossovers, rest areas, and other pavement surfaces that are not 
part of the roadway normally traveled by through traffic. 23 CFR 
490.101.
    In addition, FHWA proposes to add a new Sec.  490.511(c) to require 
that tailpipe CO<INF>2</INF> emissions on the NHS for a given calendar 
year be estimated millions of metric tons (mmt) and rounded to the 
nearest hundredth mmt using a formula set forth in the proposed 
regulation. Specifically, the calculation is based on State reported 
fuel use by fuel type (such as gasoline and diesel), as reported to 
FHWA. These fuel use values are then multiplied by a corresponding 
CO<INF>2</INF> emissions factor (amount of CO<INF>2</INF> per gallon of 
each fuel type). The CO<INF>2</INF> emissions factor would be posted on 
FHWA's website no later than August 15 each year. These values are then 
summed and multiplied by the NHS VMT relative to the total VMT. A key 
assumption in using the proportion of NHS VMT to total VMT, is that 
there is a similar rate of GHG emissions on NHS and non-NHS facilities 
per VMT.
    FHWA also proposes to add a new Sec.  490.511(d) to address the 
expectations for MPOs in implementing the GHG measure. Proposed Sec.  
490.511(d) would state that MPOs have additional flexibility, compared 
to State DOTs, in how they calculate the GHG metric, since MPOs may 
employ various models and data collection methods that can be used to 
estimate CO<INF>2</INF> emissions. Proposed Sec.  490.511(d) would 
allow an MPO to use a range of approaches, including: the MPO share of 
the State's VMT as a proxy for the MPO share of CO<INF>2</INF> 
emissions; VMT estimates along with emissions factors from EPA MOVES 
model EMFAC; \43\ or FHWA's Energy and Emissions Reduction Policy 
Analysis Tool (EERPAT) model. Alternatively, proposed Sec.  490.511(d) 
would also allow an MPO to use another method if the MPO can 
demonstrate to its State DOT that it has a technically valid and useful 
approach to estimating CO<INF>2</INF> emissions.
---------------------------------------------------------------------------

    \43\ The California Air Resources Board (CARB) maintains the 
EMission FACtor (EMFAC) model, which is approved by EPA for 
developing on-road motor vehicle emission inventories and analyses 
in California.
---------------------------------------------------------------------------

    Finally, FHWA proposes Sec.  490.511(f) to require the reporting of 
two related CO<INF>2</INF> emissions calculations in State DOT's 
Biennial Performance Reports for the reference year and the 2 years 
preceding each reporting year. The first of these is a calculation of 
total tailpipe CO<INF>2</INF> emissions from on-road sources travelling 
on all roadways, which represents a component of the calculation of the 
metric, as described in Sec.  490.511(a)(2). The second of these is a 
calculation of the metric itself. FHWA is proposing to require the 
reporting of total tailpipe CO<INF>2</INF> emissions on all roadways to 
ensure a consistent basis for monitoring tailpipe CO<INF>2</INF> 
emissions trends, since year-over-year variation in NHS mileage would 
impact the calculation of the metric. Reporting on this data is not 
believed to add burden since State DOTs would need to perform this 
calculation as part of calculating the metric.
Section 490.513 Calculation of National Highway System Performance 
Measures
    The existing performance management regulations define the term 
``measure'' as an expression based on a metric that is used to 
establish targets and to assess progress toward achieving them. 23 CFR 
490.101. In proposed Sec.  490.513, FHWA would add a new Sec.  
490.513(d) to require computation of the GHG measure, specified in 
proposed Sec.  490.507(b), to the nearest tenth of a percent according 
to a formula that would be set forth in the regulation. The computation 
would involve: (1) determining the difference between tailpipe 
CO<INF>2</INF> emissions on the NHS in the calendar year and tailpipe 
CO<INF>2</INF> emissions on the NHS in the reference year (calendar 
year 2021); (2) dividing that amount by tailpipe CO<INF>2</INF> 
emissions on the NHS in the reference year (calendar year 2021); and 
(3) multiplying the total by 100 so that the result is expressed as a 
percent change from the reference year (calendar year

[[Page 42417]]

2021). As noted, the proposed rule uses ``NHS'' to mean the mainline 
highways of the NHS, as defined in Sec.  490.101, consistent with the 
applicability of the measure described in proposed Sec.  490.503(a)(2).
    FHWA has provided an example of the metric and measure computation 
in the rulemaking docket (Docket No. FHWA-2001-0004) and invites 
comments on the proposed method.

V. Additional Requests for Comments

A. Establishing Targets That Lead to Improved Environmental Performance

    The proposed measure is intended to support the national policy 
established under section 1 of E.O. 13990 and E.O. 14008 and at the 
Leaders Summit on Climate. This policy calls for GHG emissions 
reductions of 50 to 52 percent below 2005 levels by 2030 and for the 
U.S. to achieve net-zero emissions by 2050. FHWA encourages comments 
that address whether the proposed measure would support those national 
policies, the ways in which the proposed measure would do so or why it 
would not, and whether the final rule should contain any other 
provisions to better support those national policies.
    FHWA is proposing to require declining targets for reducing 
tailpipe CO<INF>2</INF> emissions compared to the reference year. State 
DOTs would establish 2- and 4-year statewide targets, and MPOs would 
establish 4-year targets for the metropolitan planning area. In 
addition, MPOs would establish 4-year targets for select urbanized 
areas jointly with other applicable MPOs.
    However, it may be appropriate to implement improving targets that 
are structured to support longer-term GHG reduction goals. FHWA 
encourages comments on how to structure improving targets for the GHG 
measure, as well as the associated reporting and significant progress 
requirements in 23 CFR part 490, subpart A.
    For example, FHWA seeks comment on potentially 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. These targets could 
inform decision-making to support of longer-term GHG reduction goals. 
The 8- and 20-year improving targets established as part of the first 
4-year performance period would indicate a reduction as compared to the 
reference year, while subsequent 8- and 20-year targets would indicate 
a reduction as compared to previous 8- and 20-year targets. These 
targets could inform decision-making to support of longer-term GHG 
reduction goals. FHWA also seeks comments on how these targets could 
align with and inform existing transportation planning and programming 
processes.
    Additionally, FHWA invites comments on the following:
    <bullet> Besides requiring targets that reduce GHGs over time, are 
there any specific ways the proposed GHG measure could be implemented 
within the framework of TPM to better support emissions reductions to 
achieve national policies for reductions in total U.S. GHG emissions?
    <bullet> What changes to the proposed measure or its implementation 
in TPM could better the impact of transportation decisions on 
CO<INF>2</INF> emissions, and enable States to achieve tailpipe 
CO<INF>2</INF> emissions reductions necessary to achieve national 
targets?
    Finally, this NPRM proposes that when there are two or more MPOs 
with metropolitan planning area boundaries that overlap any portion of 
an urbanized area, and the urbanized area contains NHS mileage, the 
MPOs would be required to establish a joint urbanized area target in 
addition to metropolitan planning area targets. FHWA invites comments 
on the following questions:
    <bullet> In instances that MPOs are establishing a joint urbanized 
area target, should FHWA require that the individual MPO-wide targets 
be the same as the jointly established urbanized area target?
    <bullet> Should MPOs that establish a joint urbanized area target 
be exempt from establishing individual MPO-level targets, and instead 
only be required to adopt and support the joint urbanized area target?
    <bullet> In cases where there are multiple MPOs with boundaries 
that overlap any portion of an urbanized area, and that urbanized area 
contains NHS mileage, should each of those MPOs establish their own 
targets, with no requirement for a joint urbanized area target?
    <bullet> Are there other approaches to target setting in urbanized 
areas served by multiple MPOs that would better help MPOs reach net-
zero emissions?

B. Summary of and Request for Comments on the Regulatory Impact 
Analysis

    The Regulatory Impact Analysis (RIA) for the proposed rule 
estimates the costs associated with establishing the GHG measure, which 
are derived from the costs of implementing the GHG measure for certain 
components of the rule. The sections of part 490 amended by this 
proposed rule for which FHWA assumes associated costs in the RIA are 
target establishment by State DOTs and MPOs (23 CFR 490.105), reporting 
by State DOTs and MPOs (23 CFR 490.107), FHWA's assessment of 
significant progress toward State DOT targets and action plans by State 
DOTs that do not make significant progress (23 CFR 490.109), 
calculating the GHG metric (23 CFR 490.511), and calculating the GHG 
measure (23 CFR 490.513). To estimate the costs of this proposed rule, 
FHWA assessed the level of effort that would be needed to comply with 
each applicable section in part 490 with respect to the proposed GHG 
measure, including labor hours by labor category. The level of effort 
by labor category was monetized with loaded wage rates to estimate 
total costs. The RIA covers a 10-year study period (2022-2031). Total 
costs over this period are estimated to be $11.0 million, discounted at 
7 percent, and $12.9 million discounted at 3 percent.
    Benefits of the rule are not quantified since FHWA is unable to 
reasonably forecast the number and extent of actions of State DOTs and 
MPOs in response to this rule. However, it is anticipated that the 
measure will influence transportation decisions and result in 
significant reductions in GHG emissions. Office of Management and 
Budget (OMB) Circular A-4 (Regulatory Analysis) provides guidance on 
implementing a break-even analysis when benefits of a rule cannot be 
fully quantified. The RIA estimates the break-even threshold for tons 
of transportation-related CO<INF>2</INF> emissions reduced, since it is 
reasonable to assume the GHG performance measure will influence tons of 
transportation-related CO<INF>2</INF> emissions. At a discount rate of 
7 percent, the number of tons of CO<INF>2</INF> emissions reduction 
that would be required for the proposed rule to be cost-beneficial 
range from 75,669 to 835,044 over the total 10-year analysis period, 
representing 0.0004 percent to 0.005 percent of total transportation 
CO<INF>2</INF> emissions. Similarly, at a discount rate of 3 percent, 
the total number of tons of CO<INF>2</INF> emissions reduction that 
would be required for the proposed rule to be cost-beneficial range 
from 88,772 to 983,896 over the total 10-year analysis period, 
representing 0.0005 percent to 0.006 percent of total transportation 
CO<INF>2</INF> emissions. These estimates were developed using interim 
estimated values of the social cost of CO<INF>2</INF> published by the 
Interagency Working Group on Social Cost of Greenhouse Gases, as FHWA 
has reviewed those estimates and determined that they are appropriate 
for use in this kind of break-even analysis. The break-even estimates 
are not intended justify the proposed rule, but are provided as context 
to illustrate the magnitude of CO<INF>2</INF>

[[Page 42418]]

reductions required to equal estimated compliance costs. The RIA also 
notes a range of potential benefits, including more informed decision-
making, more comprehensive performance and practices, greater 
accountability and progress on national transportation goals.\44\
---------------------------------------------------------------------------

    \44\ The potential benefits that may flow from the proposed GHG 
measure stem from its potential to support more informed choices 
about transportation investments and other policies to help achieve 
net zero emissions economy-wide by 2050, including projects eligible 
under the Carbon Reduction Program and the National Electric Vehicle 
Infrastructure Program, both established under the Bipartisan 
Infrastructure Law.
---------------------------------------------------------------------------

    FHWA is seeking 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.
    <bullet> The RIA includes assumptions regarding the applicability, 
level of effort and frequency of activities under proposed Sec. Sec.  
490.105, 490.107, 490.109, 490.511, and 490.513. Are these assumptions 
reasonable? Are there circumstances that may result in greater or 
lesser burden relative to the RIA assumptions?
    <bullet> Would the staff time spent implementing this measure 
reduce the burden of carrying out other aspects of State DOT and MPO 
missions, such as forecasting fuel tax revenues? If so, please describe 
and provide any information on programs that would benefit from this 
measure and estimate any costs that would be reduced by implementing 
this measure.
    <bullet> Would the proposed rule result in economies of scale or 
other efficiencies, such as the development of consulting services or 
specialized tools that would lower the cost of implementation? If so, 
please describe such efficiencies and provide any information on 
potential cost savings.
    <bullet> Would the proposed rule result in the qualitative benefits 
identified in the RIA, including more informed decision-making, 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).

VI. 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 the 
proposed rule would be a significant regulatory action within the 
meaning of E.O. 12866 because it may raise novel legal or policy issues 
arising out of the President's priorities. However, it is anticipated 
that the proposed rule would not be economically significant for 
purposes of E.O. 12866. The proposed rule would not have an annual 
effect on the economy of $100 million or more. The proposed rule would 
not adversely affect in a material way the economy, any sector of the 
economy, productivity, competition, or jobs. In addition, the proposed 
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 proposed rule 
would be $11.0 million, discounted at 7 percent, and $12.9 million 
discounted at 3 percent. While FHWA is unable to quantify the benefits 
of the proposed rulemaking, FHWA describes the expected benefits 
qualitatively in the preamble and the regulatory impact analysis. These 
benefits include potentially significant reductions in GHG emissions 
resulting from 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. 
FHWA also performed a break-even analysis to analyze the relationship 
between the costs and potential benefits of the proposed rule. The full 
regulatory impact analysis 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 proposed 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 proposed rule would 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. The MPOs are 
considered governmental jurisdictions, and to qualify as a small entity 
they would need to serve fewer than 50,000 people. The MPOs are 
designated to serve urbanized areas with populations of 50,000 or more. 
See 23 U.S.C. 134(d)(1). Therefore, FHWA certifies that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.

C. Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). 
This proposed rule would not result in the expenditure by State, local, 
and Tribal governments, in the aggregate, or by the private sector, of 
$168 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 proposed rule has been analyzed in accordance with the 
principles and criteria contained in E.O. 13132, and FHWA has 
determined that this proposed rule would not have sufficient federalism 
implications to warrant the preparation of a federalism assessment. 
FHWA also has determined that this proposed rule would 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 the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. FHWA has determined 
that this proposal contains collection of information requirements for 
the purposes of the PRA. This proposed rule introduces a GHG 
performance measure that would be implemented as part of the 
overarching TPM regulations in 23 CFR part 490, which includes State 
DOT reporting on performance. The collection of biennial report 
information in support of 23 CFR 490.107 is covered by OMB Control No. 
2125-0656.
    FHWA has analyzed this proposed rule under the PRA and has 
determined the following:

[[Page 42419]]

    Respondents: 52 State DOTs.
    Frequency: Biennial reporting.
    Estimated Average Burden per Response: Approximately 88 hours to 
complete and submit the biennial 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. FHWA invites interested 
persons to submit comments on any aspect of the information collection 
in this NPRM. FHWA anticipates updating the burden estimates for the 
applicable OMB control numbers to reflect the final rule.

F. National Environmental Policy Act

    FHWA has analyzed this proposed 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. 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 proposed rule would 
establish in FHWA regulations a performance measure for on-road 
CO<INF>2</INF> emissions on the NHS for use by States and MPOs in 
measuring transportation performance. FHWA does not anticipate any 
adverse environmental impacts from this proposed rule, the purpose of 
which is to inform decisionmaking about the transportation sector's 
contribution to GHG emissions, and thereby contribute to environmental 
sustainability; no unusual circumstances are present under 23 CFR 
771.117(b).

G. Executive Order 13175 (Tribal Consultation)

    FHWA has analyzed this proposed rule in accordance with the 
principles and criteria contained in E.O. 13175, ``Consultation and 
Coordination with Indian Tribal Governments.'' The proposed rule would 
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 non-Interstate NHS, which FHWA interprets to include 
environmental performance. This measure applies to States that receive 
Title 23 Federal-aid highway funds, and it would not have substantial 
direct effects on one or more Indian Tribes, would not impose 
substantial direct compliance costs on Indian Tribal governments, and 
would not preempt Tribal laws. Accordingly, the funding and 
consultation requirements of E.O. 13175 do not apply and a Tribal 
summary impact statement is not required.

I. Executive Order 12898 (Environmental Justice)

    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. FHWA has 
determined that this proposed rule does not raise any environmental 
justice issues.

J. Regulation Identifier Number

    A regulation identifier number (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.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to amend title 23, 
Code of Federal Regulations, part 490, as set forth below:

PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES

0
1. The authority citation for part 490 continues to read as follows:

    Authority: 23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.

Subpart A--General Information

0
2. Amend Sec.  490.101 by adding the definitions of ``Fuels and 
Financial Analysis System-Highways (FUELS/FASH)'' and ``Net-zero'' in 
alphabetical order to read as follows:


Sec.  490.101   Definitions.

* * * * *
    Fuels and Financial Analysis System-Highways (FUELS/FASH), as used 
in this part, means the FHWA's system of record for motor fuel, highway 
program funding, licensed drivers, and registered vehicles data.
* * * * *
    Net-zero, as used in this part, means that human activities produce 
no more greenhouse gases than they remove from the atmosphere.
* * * * *
0
3. Amend Sec.  490.105 by adding paragraph (c)(5), revising the 
introductory text of paragraph (d), adding paragraphs (d)(1)(v) and 
(d)(4), revising paragraph (e)(1), adding paragraph (e)(10), revising 
paragraphs (f)(1)(i) and (f)(3), and adding paragraph (f)(10) to read 
as follows:


Sec.  490.105  Establishment of performance targets.

* * * * *
    (c) * * *
    (5) 490.507(b) for the greenhouse gas (GHG) performance for the 
NHS;
* * * * *
    (d) Target scope. Targets established by State DOTs and MPOs shall, 
regardless of ownership, represent the transportation network or 
geographic area, including bridges that cross State borders, that are 
applicable to the measures as specified in paragraphs (d)(1), (2), and 
(4) of this section.
    (1) * * *
    (v) 490.503(a)(2) for the GHG measure specified in Sec.  
490.507(b);
* * * * *
    (4) MPOs shall establish targets for the GHG measure specified in 
Sec.  490.507(b) that represent performance of the transportation 
network specified in Sec.  490.503(a)(2), for urbanized areas meeting 
the criteria specified in paragraph (f)(10) of this section.
    (e) * * *
    (1) Schedule. State DOTs shall establish targets not later than the 
due dates provided in paragraphs (e)(1)(i) and (ii) of this section, 
and for each performance period thereafter, in a manner that allows for 
the time needed to meet the requirements specified in this section and 
so that the final targets are submitted to FHWA by the due date 
provided in Sec.  490.107(b).
    (i) State DOTs shall establish initial targets not later than May 
20, 2018, except as provided in paragraph (e)(1)(ii) of this section.
    (ii) State DOTs shall establish initial targets for the GHG measure 
identified in Sec.  490.507(b) not later than October 1, 2022.
* * * * *
    (10) Targets for the GHG measure. Targets established for the GHG 
measure in paragraph (c)(5) of this section shall

[[Page 42420]]

be declining targets for reducing tailpipe CO<INF>2</INF> emissions on 
the NHS, that demonstrate reductions toward net-zero targets.
    (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 paragraph (c)(5) of this section, the targets established shall be 
declining targets for reducing tailpipe CO<INF>2</INF> 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. This joint target is in addition 
to the targets for the metropolitan planning area required in paragraph 
(f)(1)(i) of this section.
    (i) NHS designations and urbanized areas shall be determined 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 entire urbanized 
area regardless of roadway ownership. In accordance with paragraph 
(f)(9) of this section, each MPO shall report the joint target for the 
urbanized area.
    (iii) The target established for each urbanized area shall 
represent a quantifiable target for that urbanized area.
0
4. Amend Sec.  490.107 by revising the second sentence of paragraph 
(b)(1)(i), adding paragraph (b)(1)(ii)(H), revising the second sentence 
of paragraph (b)(2)(i), adding paragraph (b)(2)(ii)(J), revising the 
second sentence of paragraph (b)(3)(i), and adding paragraph 
(b)(3)(ii)(I), and adding a second sentence in paragraph (c)(2) to read 
as follows:


Sec.  490.107  Reporting on performance targets.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * * State DOTs shall submit their first Baseline Performance 
Period Report to FHWA by October 1, 2018, and subsequent Baseline 
Performance Period Reports to FHWA by October 1st every 4 years 
thereafter, except for the GHG measure specified in Sec.  
490.105(c)(5), State DOTs shall submit their first Baseline Performance 
Period Report to FHWA by October 1, 2022, and subsequent Baseline 
Performance Period Reports to FHWA by October 1st every 4 years 
thereafter.
    (ii) * * *
    (H) GHG metric for the GHG measure. Tailpipe CO<INF>2</INF> 
emissions on the NHS, as described in Sec.  490.511(f), for the 
reference year and the 2 calendar years preceding the Baseline 
Performance Period Report, and tailpipe CO<INF>2</INF> emissions on all 
public roads for the reference year and the 2 calendar years preceding 
the Baseline Performance Period Report; and
* * * * *
    (2) * * *
    (i) * * * State DOTs shall submit their first Mid Performance 
Period Progress Report to FHWA by October 1, 2020, and subsequent Mid 
Performance Period Progress Reports to FHWA by October 1st every 4 
years thereafter, except for the GHG measure specified in Sec.  
490.105(c)(5), State DOTs shall submit their first Mid Performance 
Period Progress Report to FHWA by October 1, 2024, and subsequent Mid 
Performance Period Progress Reports to FHWA by October 1st every 4 
years thereafter.
    (ii) * * *
    (J) GHG metric for the GHG measure. Tailpipe CO<INF>2</INF> 
emissions for the NHS and all public roads, as described in Sec.  
490.511(f), for the 2 calendar years preceding the Mid Performance 
Period Progress Report for the GHG measure in Sec.  490.105(c)(5).
* * * * *
    (3) * * *
    (i) * * * State DOTs shall submit their first Full Performance 
Period Progress Report to FHWA by October 1, 2022, and subsequent Full 
Performance Period Progress Reports to FHWA by October 1st every 4 
years thereafter, except for the GHG measure specified in Sec.  
490.105(c)(5), State DOTs shall submit their first Full Performance 
Period Progress Report to FHWA by October 1, 2026, and subsequent Full 
Performance Period Progress Reports to FHWA by October 1st every 4 
years thereafter.
    (ii) * * *
    (I) GHG metric for the GHG measure. Tailpipe CO<INF>2</INF> 
emissions for the NHS and all public roads, as described in Sec.  
490.511(f), for the 2 calendar years preceding the Full Performance 
Period Progress Report for the GHG measure in Sec.  490.105(c)(5).
    (c) * * *
    (2) * * * For the GHG measure in Sec.  490.105(c)(5), the MPO shall 
report a description of its metric calculation method, as described in 
Sec.  490.511(d), and the calculation of tailpipe CO<INF>2</INF> 
emissions for the NHS and all public roads.
* * * * *
0
5. Amend Sec.  490.109 by:
0
a. Adding paragraph (d)(1)(v);
0
b. Revising paragraph (d)(1)(vi);
0
c. Adding paragraph (d)(1)(vii);
0
d. In paragraph (e)(4)(iv), removing the word ``or'';
0
e. In paragraph (e)(4)(v), removing the period at the end of the 
paragraph and adding ``; or'' in its place; and
0
f. Adding paragraphs (e)(4)(vi) and (f)(1)(v).
    The additions and revision read as follows:


Sec.  490.109  Assessing significant progress toward achieving the 
performance targets for the National Highway Performance Program and 
the National Highway Freight Program.

* * * * *
    (d) * * *
    (1) * * *
    (v) Data contained within FUELS/FASH on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year and for the reference year for targets 
established for the GHG measure in Sec.  490.105(c)(5);
    (vi) Baseline condition/performance data contained in FUELS/FASH, 
HPMS, and NBI of the year in which the Baseline Period Performance 
Report is due to FHWA that represents baseline conditions/performances 
for the performance period for the measures in Sec.  490.105(c)(1) 
through (5); and
    (vii) Data contained within the HPMS on August 15th of the year in 
which the significant progress determination is made that represents 
performance from the prior year and for the reference year for targets 
established for the GHG measure specified in Sec.  490.105(c)(5).
* * * * *
    (e) * * *
    (4) * * *

[[Page 42421]]

    (vi) A State DOT reported data are not cleared in the FUELS/FASH by 
the data extraction date specified in paragraph (d)(1) of this section 
for the GHG measure in Sec.  490.105(c)(5).
* * * * *
    (f) * * *
    (1) * * *
    (v) If significant progress is not made for the target established 
for the GHG measure in Sec.  490.105(c)(5), then the State DOT shall 
document the actions it will take to achieve the target for the GHG 
measure.
* * * * *

Subpart E--National Performance Management Measures to Assess 
Performance of the National Highway System

0
6. Amend Sec.  490.503 by adding paragraph (a)(2) to read as follows:


Sec.  490.503  Applicability.

    (a) * * *
    (2) The greenhouse gas (GHG) measure in Sec.  490.507(b) is 
applicable to all mainline highways on the Interstate and non-
Interstate NHS.
* * * * *
0
7. Amend Sec.  490.505 by adding the definitions ``Greenhouse gas 
(GHG)'' and ``Reference year'' in alphabetical order to read as 
follows:


Sec.  490.505  Definitions.

* * * * *
    Greenhouse gas (GHG) is any gas that absorbs infrared radiation 
(traps heat) in the atmosphere. Ninety-seven percent of on-road GHG 
emissions are carbon dioxide (CO<INF>2</INF>) from burning fossil fuel. 
Other transportation GHGs are methane (CH<INF>4</INF>), nitrous oxide 
(N<INF>2</INF>O), and hydrofluorocarbons (HFCs).
* * * * *
    Reference year is calendar year 2021 for the purpose of the GHG 
measure.
* * * * *
0
8. Amend Sec.  490.507 by revising the introductory text and adding 
paragraph (b) to read as follows:


Sec.  490.507  National performance management measures for system 
performance.

    There are three performance measures to assess the performance of 
the Interstate System and the performance of the non-Interstate NHS for 
the purpose of carrying out the National Highway Performance Program 
(referred to collectively as the NHS Performance measures).
* * * * *
    (b) One measure is used to assess GHG emissions, which is the 
percent change in tailpipe CO<INF>2</INF> emissions on the NHS compared 
to the reference year (referred to as the GHG measure).
0
9. Amend Sec.  490.509 by adding paragraphs (f) through (h) to read as 
follows:


Sec.  490.509  Data requirements.

* * * * *
    (f) The FHWA will post on the FHWA website, no later than August 
15th each year, the CO<INF>2</INF> factor for each on-road fuel type 
that will be used to calculate the GHG metric for the GHG measure in 
Sec.  490.105(c)(5).
    (g) Fuel sales information needed to calculate the fuel consumed 
for the GHG measure in Sec.  490.507(b) shall:
    (1) Represent the total number of gallons of fuel consumed by fuel 
type; and
    (2) Be based on fuels sales data for the previous calendar year, 
and reported to FUELS/FASH.
    (h) Annual total vehicle-miles traveled (VMT) needed to calculate 
the GHG measure in Sec.  490.507(b) shall come from HPMS data as of 
August 15, for the prior calendar year.
0
10. Amend Sec.  490.511 by adding paragraphs (a)(2), (c), (d), and (f) 
to read as follows:


Sec.  490.511  Calculation of National Highway System performance 
metrics.

    (a) * * *
    (2) Annual Total Tailpipe CO<INF>2</INF> Emissions on the NHS for 
the GHG measure in Sec.  490.507(b) (referred to as the GHG metric).
* * * * *
    (c) Tailpipe CO<INF>2</INF> emissions on the NHS for a given year 
shall be computed in million metric tons (mmt) and rounded to the 
nearest hundredth as follows:
[GRAPHIC] [TIFF OMITTED] TP15JY22.012

Where:

(Tailpipe CO<INF>2</INF> Emissions on NHS)<INF>CY =</INF> Total 
tailpipe CO<INF>2</INF> 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)<INF>t =</INF> the quantity of total annual fuel 
consumed for on-road fuel type ``t'' (to the nearest thousand 
gallons);
(CO<INF>2</INF> Factor)<INF>t =</INF> is the amount of 
CO<INF>2</INF> released per unit of fuel consumed for on-road fuel 
type ``t'';
NHS VMT = annual total vehicle-miles traveled on NHS (to the nearest 
one million vehicle-miles); and
Total VMT = annual total vehicle-miles traveled on all public roads 
(to the nearest one million vehicle-miles).

    (d) For the GHG measure specified in Sec.  490.507(b), MPOs are 
granted additional flexibility in how they calculate the GHG metric, 
described in paragraph (a)(2) of this section. MPOs may use the MPO 
share of the State's VMT as a proxy for the MPO share of CO<INF>2</INF> 
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 CO<INF>2</INF> measurement. The metric calculation 
method shall be mutually agreed upon by both the State DOT and the MPO.
---------------------------------------------------------------------------

    \1\ MOVES (Motor Vehicle Emission Simulator) is EPA's emission 
modeling system that estimates emissions for mobile sources at the 
national, county, and project level for criteria air pollutants, 
greenhouse gases, and air toxics. See https://www.epa.gov/moves. The 
EMission FACtor (EMFAC) model is used in California for emissions 
analysis.
---------------------------------------------------------------------------

* * * * *
    (f) Tailpipe CO<INF>2</INF> emissions generated by on-road sources 
travelling on the NHS (the GHG metric), and generated by on-road 
sources travelling on all roadways (the step in the calculation prior 
to computing the GHG metric) shall be calculated as specified in 
paragraph (c) of this section. The calculations shall be reported in 
the State Biennial Performance Reports, as required in Sec.  490.107, 
and shall address the following time periods.
    (1) The reference year, as required in Sec.  490.107(b)(1)(ii)(H); 
and
    (2) The 2 years preceding the reporting years, as required in Sec.  
490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and (b)(3)(ii)(I).
0
10. Amend Sec.  490.513 by adding paragraph (d) to read as follows:


Sec.  490.513  Calculation of National Highway System performance 
measures.

* * * * *
    (d) The GHG measure specified in Sec.  490.507(b) shall be computed 
to the nearest tenth of a percent as follows:

[[Page 42422]]

[GRAPHIC] [TIFF OMITTED] TP15JY22.013


Where:

(Tailpipe CO<INF>2</INF> Emissions on NHS)<INF>CY</INF> = total 
tailpipe CO<INF>2</INF> emissions on the NHS in a calendar year 
(expressed in million metric tons (mmt), and rounded to the nearest 
hundredth); and
(Tailpipe CO<INF>2</INF> Emissions on NHS)<INF>reference year</INF> 
= total tailpipe CO<INF>2</INF> emissions on the NHS in calendar 
year 2021 (expressed in million metric tons (mmt), and rounded to 
the nearest hundredth).

[FR Doc. 2022-14679 Filed 7-14-22; 8:45 am]
BILLING CODE 4910-22-P


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