Federal Register / Vol. 87, No. 135 / Friday, July 15, 2022 / Proposed Rules 42401 

1. FDA/Economics Staff, ‘‘Revocation of 

Methods of Analysis Regulation, 

Preliminary Regulatory Impact Analysis, 

Preliminary Regulatory Flexibility 

Analysis, Unfunded Mandates Reform 

Act Analysis,’’ 2020. (Available at: 

https://www.fda.gov/AboutFDA/ 

ReportsManualsForms/Reports/ 

EconomicAnalyses/default.htm.) 

List of Subjects in 21 CFR Part 2 

Administrative practice and 

procedure, Cosmetics, Drugs, Foods. 

Therefore, under the Federal Food, 

Drug, and Cosmetic Act, and under 

authority delegated to the Commissioner 

of Food and Drugs, FDA proposes that 

21 CFR part 2 be amended as follows: 

PART 2—GENERAL ADMINISTRATIVE 

RULINGS AND DECISIONS 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: 15 U.S.C. 402, 409; 21 U.S.C. 

321, 331, 335, 342, 343, 346a, 348, 351, 352, 

355, 360b, 361, 362, 371, 372, 374; 42 U.S.C. 

7671 et seq. 

§ 2.19 [Removed] 

■ 2. Remove § 2.19. 

Dated: July 11, 2022. 

Robert M. Califf, 

Commissioner of Food and Drugs. 

[FR Doc. 2022–15109 Filed 7–14–22; 8:45 am] 

BILLING CODE 4164–01–P 

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. 

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 (CO2) 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 CO2 emissions 

targets to reduce CO2 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: 

• Federal eRulemaking Portal: Go to 

https://www.regulations.gov and follow 

the online instructions for submitting 

comments. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE, Washington, DC 

20590. 

• 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 JohnG.Davies@

dot.gov, or Mr. Lev Gabrilovich, Office 

of the Chief Counsel (HCC–30), (202) 

366–3813, or via email at 

Lev.Gabrilovich@dot.gov. 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 


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42402 Federal Register / Vol. 87, No. 135 / Friday, July 15, 2022 / Proposed Rules 

1The proposed GHG measure specifically applies 

to CO2 emissions, which is the predominant 

human-produced greenhouse gas. CO2 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-usgreenhouse-gas-emissions-and-sinks-1990-2019. 

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

Climate Change 2021: The Physical Science Basis. 

Contribution of Working Group I to the Sixth 

Assessment Report of the Intergovernmental Panel 

on Climate Change, available at https://

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

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

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

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

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

Cambridge University Press. In Press. 

4NOAA 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. 

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 

CO2 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 CO2

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 

§ 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 CO2 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). 

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 CO2 produced by 

the combustion of fossil fuels 

contributes to future warming and other 

climate impacts. 

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 


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6White 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/statementsreleases/2021/04/22/fact-sheet-president-bidensets-2030-greenhouse-gas-pollution-reductiontarget-aimed-at-creating-good-paying-union-jobsand-securing-u-s-leadership-on-clean-energytechnologies/; White House Fact Sheet: President 

Biden’s Leaders Summit on Climate (Apr. 23, 2021), 

available at https://www.whitehouse.gov/briefingroom/statements-releases/2021/04/23/fact-sheetpresident-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. 

7See EPA Inventory of U.S. Greenhouse Gas 

Emissions and Sinks, available at https://

www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2019. 

2030, on a course toward reaching netzero 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. 

CO2 emissions 7 and increasingly 

vulnerable to the higher temperatures, 

more frequent and intense precipitation, 

and sea level rise associated with the 

changing climate. 

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 CO2 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 nonInterstate 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 decisionmaking 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 

CO2 estimates for the transportation 

sector, this data is not disaggregated to 

reflect CO2 emissions from on-road 

sources, and can reflect significant 

fluctuations in CO2 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-ofGovernment 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 § 490.101 and the 

addition of references to the proposed 

GHG measure and new provisions in the 

following sections: § 490.105 

Establishment of performance targets; 

§ 490.107 Reporting on performance 

targets; and § 490.109 Assessing 

significant progress toward achieving 

the performance targets for the National 

Highway Performance Program and the 

National Highway Freight Program. The 


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42404 Federal Register / Vol. 87, No. 135 / Friday, July 15, 2022 / Proposed Rules 

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: § 490.503 

Applicability; § 490.505 Definitions; 

§ 490.507 National performance 

management measures for system 

performance; § 490.509 Data 

requirements; § 490.511 Calculation of 

National Highway System performance 

metrics; and § 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 nonInterstate NHS for the purpose of 

carrying out the NHPP; to assess freight 

movement on the Interstate System; and 

to assess traffic congestion and on-road 

mobile source emissions for the purpose 

of carrying out the CMAQ Program. The 

PM3 final rule was published on 

January 18, 2017 (82 FR 5970). 

The PM3 rule addressed a broad set 

of performance issues and some of the 

national transportation goals, such as 

environmental sustainability, that were 

not addressed in the earlier rulemakings 

focused solely on safety and 

infrastructure condition. In the 

preamble to the PM3 proposed rule, 

published on April 22, 2016 (81 FR 

23806), FHWA requested public 

comment on whether to establish a CO2

emissions measure in the final rule and, 

if so, how to do so. FHWA 

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

transportation sector GHG emissions, 

and the historic Paris Agreement in 

which the 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 preindustrial 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 CO2 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 CO2 emissions 

based on annual fuel sales, Energy 

Information Agency (EIA) published 

emission conversion factors, and the 

proportion of statewide vehicle miles 


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8See 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. 

9Wuebbles, 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/. 

10National 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. 

12U.S. GCRP 2017 Climate Science Special 

Report at 80. 

13NOAA 2021 Trends in Atmospheric Carbon 

Dioxide. 

14 Id. 

15 International Energy Agency (2021) Global 

Energy Review: CO2 Emissions in 2020. 

16See 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. 

traveled (VMT) that occurs on the NHS. 

MPOs would have been given options as 

to how they would calculate CO2

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 CO2

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 CO2

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 CO2 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 CO2 emissions contributes 

to climate change. 

Other research also shows that CO2

and other GHG emissions have 

accumulated rapidly as the world has 

industrialized, with concentrations of 

atmospheric CO2 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 CO2, methane (CH4), and 

nitrous oxide (N2O), 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 

CO2 concentration increased by 2.7 

parts per million (ppm) relative to 

2019 14 despite a 5.8 percent decrease in 

global energy-related CO2 emissions, 

which represented the largest 

percentage decline since World War II.15

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 CO2 concentrations 

of approximately 450 ppm or lower; 17

achieving this concentration would 

likely require a decrease in global net 

anthropogenic CO2 emissions of about 

25 percent below 2010 levels by 2030, 

leading to net-zero CO2 emissions by 


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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. 

19U.S. Department of State (2021). U.S.—China 

Joint Statement Addressing the Climate Crisis, 

available at https://www.state.gov/u-s-china-jointstatement-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. 

21See 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. 

22White House Fact Sheet: President Biden’s 

Leaders Summit on Climate (Apr. 23, 2021), 

available at https://www.whitehouse.gov/briefingroom/statements-releases/2021/04/23/fact-sheetpresident-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. 

23U.S. Environmental Protection Agency (2021). 

Inventory of U.S. Greenhouse Gas Emissions and 

Sinks: 1990–2019, available at https://

www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2019. 

24U.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/. 

26FHWA 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. 

27A 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. 

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 CO2 emissions 45 percent 

below 2010 levels by 2030, reaching netzero 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

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

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 

CO2 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. CO2

emissions. In 2019, the transportation 

sector accounted for 34.6 percent of 

total U.S. CO2 emissions, with 83.2 

percent of the sector’s total CO2

emissions coming from on-road 

sources.23 The transportation sector is 

expected to remain the largest source of 

U.S. CO2 emissions through 2050, 

increasing at an average annual rate of 

0.3 percent per year despite 

improvements in the energy efficiency 

of light-duty vehicles, trucks, and 

aircraft.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

In addition to being the largest source 

of U.S. CO2 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,27 there are two main types of 

climate change risk affecting 

transportation infrastructure: continued 

emissions of GHGs, such as CO2, that 

adversely affect the atmosphere, leading 

to climate change effects; and threats to 

the transportation system posed by 

climate change impacts (e.g., damaged 


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28Extreme 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). 

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. 

or flooded facilities).28 In other words, 

the transportation system both 

contributes to climate change and 

suffers from the impacts of climate 

change. 

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

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 CO2 emissions on the 

NHS represent one discrete component 

of U.S. transportation sector GHG 

emissions, measuring and reporting onroad tailpipe CO2 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 nonInterstate 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 


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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 performancedriven 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. CO2 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 CO2

emissions from transportation in the 

performance management framework 

and help frame responses to the growing 

climate crisis. Reducing GHG emissions 

that are causing increases in 

temperature, sea level, extreme weather 

events, flooding, wildfires, and other 

natural disasters should then decrease 

the severity and impact of those 

conditions in the future. 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 


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30NOAA National Centers for Environmental 

Information (NCEI) U.S. Billion-Dollar Weather and 

Climate Disasters (2022). https://

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

31Ebi, 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. 

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 lifecycle 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 billiondollar 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 CO2

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. 

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: 

• 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 . . .’’. 

• 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 . . .’’. 

• 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. 

• 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 . . .’’. 

• 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 . . .’’. 

• 23 U.S.C. 135(d)(2) requires the 

statewide transportation planning 

process to ‘‘. . . provide for the 

establishment and use of a performancebased approach to transportation 

decision-making to support the national 

goals described in section 150(b) of this 

title . . .’’. 

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 climaterelated matters. As noted in FHWA’s 

May 2018 repeal of the 2017 GHG 

measure, nothing in the statute 

specifically requires FHWA to adopt a 

GHG emissions measure. 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 onroad 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. 


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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 nonmotorized 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 onroad 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 CO2 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 


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32See U.S. GCRP 2017 Climate Science Special 

Report, at 12–34. 

33A 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. 

34A loaded wage rate reflects an annual salary, 

including benefits, that is converted to an hourly 

wage rate. 

35See 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.’’ 

36E.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). 

37National Cooperative Highway Research 

Program (NCHRP) Report 25–56, Methods for State 

DOTs to Reduce Greenhouse Gas Emissions from 

the Transportation Sector. Currently under prepublication review by the Transportation Research 

Board. 

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

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 CO2 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

The proposed GHG measure aligns 

with the national goal of reducing CO2

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 midperformance 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. 

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 

CO2 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 CO2

emissions trends in the transportation 

sector, for the reasons discussed below. 

Specifically, the 2018 repeal final rule 

identified that several States and MPOs 

were already tracking CO2 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 CO2 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 performancebased 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. 

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 CO2 emissions, including the 

annual DOE publication of State-byState data on CO2 emissions for the 

transportation sector, which includes 

data on CO2 emissions from all mobile 

sources (e.g., aviation, highway), not 

just motor vehicles (although the 

published table does not break the CO2

emissions data into subcategories, such 

as CO2 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 CO2

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 


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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 CO2 estimates for the 

transportation sector, this data is not 

disaggregated to reflect CO2 emissions 

from on-road mobile sources. Sectorlevel data is not ideal for evaluating CO2

emissions trends associated with 

roadways or the NHS, since fluctuations 

in CO2 emissions from other 

transportation sources (such as aircraft, 

boats and rail) can significantly 

influence year-over-year changes. 

Finally, transportation sector CO2

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 CO2 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-ofGovernment 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 CO2

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. CO2 emissions, 

with 83.2 percent of the sector’s total 

CO2 emissions coming from on-road 

sources, and the sector is expected to 

remain the largest source of U.S. CO2

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 netzero 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 regionbased 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 § 490.101 

by adding a new definition of the term 

Fuels and Financial Analysis SystemHighways (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/ 


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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 

§ 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 § 490.105 regarding the 

establishment of performance targets 

and proposes adjustments to five 

existing paragraphs due to the proposed 

GHG measure. First, proposed new 

§ 490.105(c)(5) would add a reference to 

proposed § 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 nonInterstate NHS). Second, proposed 

changes would affect the target scope 

provisions of § 490.105(d). Proposed 

new § 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 

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

the NHS specified in proposed 

§ 490.507(b). Proposed new 

§ 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 § 490.105(f)(10). Additionally, 

FHWA proposes to revise the 

introductory text of § 490.105(d) to 

include the scope of urbanized areas, 

consistent with proposed 

§ 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 § 490.105(e) regarding the 

establishment of targets. FHWA 

proposes to revise existing 

§ 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 § 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 § 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 § 490.105(e)(10) would 

require declining targets for reductions 

in tailpipe CO2 emissions on the NHS 

that align with the 2030 and net-zero by 

2050 emissions reduction targets 

discussed earlier. In addition, FHWA 

proposes revising § 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 CO2 emissions on 

the NHS. 

FHWA also proposes revisions to 

§ 490.105(f) regarding MPO 

establishment of targets. FHWA 

proposes to revise § 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 

§ 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 § 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 

§ 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 § 490.105(f)(10)(i) 

that NHS designations and urbanized 


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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 

§ 490.105(f)(5)(iii)(E) and would not add 

additional burden. FHWA proposes to 

specify in § 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 § 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 

§ 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 § 490.107, which 

includes reporting targets and 

performance. Proposed § 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 

§ 490.507(b). Proposed § 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 § 490.107 would add that 

MPOs report to the State DOT their 

metric calculation method, along with 

the calculation of tailpipe CO2

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 § 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 § 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 § 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 CO2 emissions on 

all public roads in each Baseline PPR. 

Specifically, such reporting would cover 

tailpipe CO2 emissions on the NHS for 

the reference year and the two calendar 

years preceding the Baseline PPR and 

tailpipe CO2 emissions on all public 

roads for the same time periods. 

Similarly, proposed § 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 

§ 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 § 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 CO2 emissions for all public 

roads in each Mid PPPR. Such reporting 

would cover tailpipe CO2 emissions for 

the NHS and all public roads for the two 

calendar years preceding the Mid PPPR. 

Proposed § 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 

§ 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 § 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 

CO2 emissions for all public roads in 

each Full PPPR. Such reporting would 

cover tailpipe CO2 emissions for the 

NHS and all public roads for the two 

calendar years preceding the Full PPPR. 

Finally, proposed revisions to 

§ 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 § 490.511(d), including the 

calculation of tailpipe CO2 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 CO2

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 CO2 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 

§ 490.511. 


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38FHWA 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. 

39See 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. 

40See EPA Inventory of U.S. Greenhouse Gas 

Emissions and Sinks, available at https://

www.epa.gov/ghgemissions/inventory-usgreenhouse-gas-emissions-and-sinks-1990-2019. 

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 § 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 § 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. 

FHWA desires to use national datasets 

in a consistent manner as a basis for 

making its significant progress 

determinations. Thus, consistent with 

existing § 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 

§ 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 

§ 490.105(c)(1) through (5). 

Finally, FHWA proposes to add 

§ 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 

§ 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 

§ 490.109(f)(1)(v) to require that if 

significant progress is not made for the 

target established for the GHG measure 

in § 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

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 § 490.503 

by adding a new paragraph (a)(2) 

providing that the GHG measure 

specified in § 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 CO2

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 § 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 CO2 from 

burning fossil fuels, and that other 

transportation GHGs are methane (CH4), 

nitrous oxide (N2O), and 

hydrofluorocarbons (HFCs). This 

information comes from EPA’s 

Inventory of U.S. Greenhouse Gas 

Emissions and Sinks.40 This 

information supports that CO2 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. 

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 § 490.507 to refer to 

‘‘three’’ performance measures to assess 

the performance of the Interstate System 

and the performance of the nonVerDate Sep<11>2014 18:34 Jul 14, 2022 Jkt 256001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\15JYP1.SGM 15JYP1

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41Motor Vehicle Emissions Simulator. 

42 Greenhouse Gases, Regulated Emissions, and 

Energy Use in Technologies. 

43The 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. 

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 § 490.507(b) to 

describe the GHG measure as the 

percent change in tailpipe CO2

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 CO2 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 

§ 490.505, the reference year would be 

calendar year 2021. 

Section 490.509 Data Requirements 

FHWA proposes to revise § 490.509 to 

add three new paragraphs regarding the 

GHG measure. Proposed § 490.509(f) 

would provide that FHWA plans to post 

on the FHWA website the CO2

emissions factors for each on-road fuel 

type. The emissions factors are needed 

to calculate the GHG metric for the GHG 

measure in § 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 

GREET42 model, CO2 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. 

Proposed § 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 § 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 § 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 

§ 490.511 new provisions for the 

calculation of a ‘‘GHG metric,’’ the 

annual total tailpipe CO2 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 

§ 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 § 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 § 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 § 490.511(c) to require that tailpipe 

CO2 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 CO2 emissions factor 

(amount of CO2 per gallon of each fuel 

type). The CO2 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 

§ 490.511(d) to address the expectations 

for MPOs in implementing the GHG 

measure. Proposed § 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 CO2 emissions. 

Proposed § 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 

CO2 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 § 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 

CO2 emissions. 

Finally, FHWA proposes § 490.511(f) 

to require the reporting of two related 

CO2 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 

CO2 emissions from on-road sources 

travelling on all roadways, which 

represents a component of the 

calculation of the metric, as described in 

§ 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 CO2 emissions on all 

roadways to ensure a consistent basis 

for monitoring tailpipe CO2 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 

§ 490.513, FHWA would add a new 

§ 490.513(d) to require computation of 

the GHG measure, specified in proposed 

§ 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 CO2 emissions on the NHS in 

the calendar year and tailpipe CO2

emissions on the NHS in the reference 

year (calendar year 2021); (2) dividing 

that amount by tailpipe CO2 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 


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2021). As noted, the proposed rule uses 

‘‘NHS’’ to mean the mainline highways 

of the NHS, as defined in § 490.101, 

consistent with the applicability of the 

measure described in proposed 

§ 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 

CO2 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 longerterm 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: 

• Besides requiring targets that 

reduce GHGs over time, are there any 

specific ways the proposed GHG 

measure could be implemented within 

the framework of TPM to better support 

emissions reductions to achieve 

national policies for reductions in total 

U.S. GHG emissions? 

• What changes to the proposed 

measure or its implementation in TPM 

could better the impact of transportation 

decisions on CO2 emissions, and enable 

States to achieve tailpipe CO2 emissions 

reductions necessary to achieve national 

targets? 

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: 

• 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? 

• 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? 

• 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? 

• 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 breakeven threshold for tons of 

transportation-related CO2 emissions 

reduced, since it is reasonable to assume 

the GHG performance measure will 

influence tons of transportation-related 

CO2 emissions. At a discount rate of 7 

percent, the number of tons of CO2

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 CO2

emissions. Similarly, at a discount rate 

of 3 percent, the total number of tons of 

CO2 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 CO2

emissions. These estimates were 

developed using interim estimated 

values of the social cost of CO2

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 breakeven analysis. The break-even estimates 

are not intended justify the proposed 

rule, but are provided as context to 

illustrate the magnitude of CO2


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44The 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. 

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

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. 

• The RIA includes assumptions 

regarding the applicability, level of 

effort and frequency of activities under 

proposed §§ 490.105, 490.107, 490.109, 

490.511, and 490.513. Are these 

assumptions reasonable? Are there 

circumstances that may result in greater 

or lesser burden relative to the RIA 

assumptions? 

• Would the staff time spent 

implementing this measure reduce the 

burden of carrying out other aspects of 

State DOT and MPO missions, such as 

forecasting fuel tax revenues? If so, 

please describe and provide any 

information on programs that would 

benefit from this measure and estimate 

any costs that would be reduced by 

implementing this measure. 

• Would the proposed rule result in 

economies of scale or other efficiencies, 

such as the development of consulting 

services or specialized tools that would 

lower the cost of implementation? If so, 

please describe such efficiencies and 

provide any information on potential 

cost savings. 

• Would the proposed rule result in 

the qualitative benefits identified in the 

RIA, including more informed decisionmaking, greater accountability, and 

progress on National Transportation 

Goals identified in MAP–21? Would the 

proposed rule result in other benefits or 

costs? Would the proposed measure 

change transportation investment 

decisions and if so, in what ways? For 

State DOTs and MPOs that have already 

implemented their own GHG 

measure(s), FHWA welcomes 

information on the impact and 

effectiveness of their GHG emissions 

measure(s). 

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: 


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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 CO2 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 nonInterstate 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 

■ 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 

■ 2. Amend § 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: 

§ 490.101 Definitions. 

* * * * * 

Fuels and Financial Analysis SystemHighways (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. 

* * * * * 

■ 3. Amend § 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: 

§ 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 § 490.507(b); 

* * * * * 

(4) MPOs shall establish targets for the 

GHG measure specified in § 490.507(b) 

that represent performance of the 

transportation network specified in 

§ 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 § 490.107(b). 

(i) State DOTs shall establish initial 

targets not later than May 20, 2018, 

except as provided in paragraph 

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

(ii) State DOTs shall establish initial 

targets for the GHG measure identified 

in § 490.507(b) not later than October 1, 

2022. 

* * * * * 

(10) Targets for the GHG measure. 

Targets established for the GHG measure 

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


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be declining targets for reducing tailpipe 

CO2 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 

CO2 emissions on the NHS. 

* * * * * 

(3) Target establishment options. For 

each performance measure identified in 

paragraph (c) of this section, except the 

CMAQ Traffic Congestion measures in 

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

meeting the criteria under paragraph 

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

Emissions Reduction measure, the 

MPOs shall establish targets for the 

metropolitan planning area by either: 

(i) Agreeing to plan and program 

projects so that they contribute toward 

the accomplishment of the relevant 

State DOT target for that performance 

measure; or 

(ii) Committing to a quantifiable target 

for that performance measure for their 

metropolitan planning area. 

* * * * * 

(10) Joint targets for the GHG 

measure. Where an urbanized area 

contains mainline highways on the 

NHS, and any portion of that urbanized 

area is overlapped by the metropolitan 

planning area boundaries of two or more 

MPOs, those MPOs shall collectively 

establish a single joint 4-year target for 

that urbanized area, described in 

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

■ 4. Amend § 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: 

§ 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 

§ 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 CO2 emissions on the NHS, as 

described in § 490.511(f), for the 

reference year and the 2 calendar years 

preceding the Baseline Performance 

Period Report, and tailpipe CO2

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 

§ 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 CO2 emissions for the NHS and 

all public roads, as described in 

§ 490.511(f), for the 2 calendar years 

preceding the Mid Performance Period 

Progress Report for the GHG measure in 

§ 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 

§ 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 CO2 emissions for the NHS and 

all public roads, as described in 

§ 490.511(f), for the 2 calendar years 

preceding the Full Performance Period 

Progress Report for the GHG measure in 

§ 490.105(c)(5). 

(c) * * * 

(2) * * * For the GHG measure in 

§ 490.105(c)(5), the MPO shall report a 

description of its metric calculation 

method, as described in § 490.511(d), 

and the calculation of tailpipe CO2

emissions for the NHS and all public 

roads. 

* * * * * 

■ 5. Amend § 490.109 by: 

■ a. Adding paragraph (d)(1)(v); 

■ b. Revising paragraph (d)(1)(vi); 

■ c. Adding paragraph (d)(1)(vii); 

■ d. In paragraph (e)(4)(iv), removing 

the word ‘‘or’’; 

■ e. In paragraph (e)(4)(v), removing the 

period at the end of the paragraph and 

adding ‘‘; or’’ in its place; and 

■ f. Adding paragraphs (e)(4)(vi) and 

(f)(1)(v). 

The additions and revision read as 

follows: 

§ 490.109 Assessing significant progress 

toward achieving the performance targets 

for the National Highway Performance 

Program and the National Highway Freight 

Program. 

* * * * * 

(d) * * * 

(1) * * * 

(v) Data contained within FUELS/ 

FASH on August 15th of the year in 

which the significant progress 

determination is made that represents 

performance from the prior year and for 

the reference year for targets established 

for the GHG measure in § 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 

§ 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 § 490.105(c)(5). 

* * * * * 

(e) * * * 

(4) * * * 


jspears on DSK121TN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 135 / Friday, July 15, 2022 / Proposed Rules 42421 

1MOVES (Motor Vehicle Emission Simulator) is 

EPA’s emission modeling system that estimates 

emissions for mobile sources at the national, 

county, and project level for criteria air pollutants, 

greenhouse gases, and air toxics. See https://

www.epa.gov/moves. The EMission FACtor 

(EMFAC) model is used in California for emissions 

analysis. 

(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 § 490.105(c)(5). 

* * * * * 

(f) * * * 

(1) * * * 

(v) If significant progress is not made 

for the target established for the GHG 

measure in § 490.105(c)(5), then the 

State DOT shall document the actions it 

will take to achieve the target for the 

GHG measure. 

* * * * * 

Subpart E—National Performance 

Management Measures to Assess 

Performance of the National Highway 

System 

■ 6. Amend § 490.503 by adding 

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

§ 490.503 Applicability. 

(a) * * * 

(2) The greenhouse gas (GHG) 

measure in § 490.507(b) is applicable to 

all mainline highways on the Interstate 

and non-Interstate NHS. 

* * * * * 

■ 7. Amend § 490.505 by adding the 

definitions ‘‘Greenhouse gas (GHG)’’ 

and ‘‘Reference year’’ in alphabetical 

order to read as follows: 

§ 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 (CO2) from burning fossil fuel. 

Other transportation GHGs are methane 

(CH4), nitrous oxide (N2O), and 

hydrofluorocarbons (HFCs). 

* * * * * 

Reference year is calendar year 2021 

for the purpose of the GHG measure. 

* * * * * 

■ 8. Amend § 490.507 by revising the 

introductory text and adding paragraph 

(b) to read as follows: 

§ 490.507 National performance 

management measures for system 

performance. 

There are three performance measures 

to assess the performance of the 

Interstate System and the performance 

of the non-Interstate NHS for the 

purpose of carrying out the National 

Highway Performance Program (referred 

to collectively as the NHS Performance 

measures). 

* * * * * 

(b) One measure is used to assess 

GHG emissions, which is the percent 

change in tailpipe CO2 emissions on the 

NHS compared to the reference year 

(referred to as the GHG measure). 

■ 9. Amend § 490.509 by adding 

paragraphs (f) through (h) to read as 

follows: 

§ 490.509 Data requirements. 

* * * * * 

(f) The FHWA will post on the FHWA 

website, no later than August 15th each 

year, the CO2 factor for each on-road 

fuel type that will be used to calculate 

the GHG metric for the GHG measure in 

§ 490.105(c)(5). 

(g) Fuel sales information needed to 

calculate the fuel consumed for the GHG 

measure in § 490.507(b) shall: 

(1) Represent the total number of 

gallons of fuel consumed by fuel type; 

and 

(2) Be based on fuels sales data for the 

previous calendar year, and reported to 

FUELS/FASH. 

(h) Annual total vehicle-miles 

traveled (VMT) needed to calculate the 

GHG measure in § 490.507(b) shall come 

from HPMS data as of August 15, for the 

prior calendar year. 

■ 10. Amend § 490.511 by adding 

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

as follows: 

§ 490.511 Calculation of National Highway 

System performance metrics. 

(a) * * * 

(2) Annual Total Tailpipe CO2

Emissions on the NHS for the GHG 

measure in § 490.507(b) (referred to as 

the GHG metric). 

* * * * * 

(c) Tailpipe CO2 emissions on the 

NHS for a given year shall be computed 

in million metric tons (mmt) and 

rounded to the nearest hundredth as 

follows: 

Where: 

(Tailpipe CO2 Emissions on NHS)CY = Total 

tailpipe CO2 emissions on the NHS in a 

calendar year (expressed in mmt, and 

rounded to the nearest hundredth); 

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

t = an on-road fuel type; 

(Fuel Consumed)t = the quantity of total 

annual fuel consumed for on-road fuel 

type ‘‘t’’ (to the nearest thousand 

gallons); 

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

per unit of fuel consumed for on-road 

fuel type ‘‘t’’; 

NHS VMT = annual total vehicle-miles 

traveled on NHS (to the nearest one 

million vehicle-miles); and 

Total VMT = annual total vehicle-miles 

traveled on all public roads (to the 

nearest one million vehicle-miles). 

(d) For the GHG measure specified in 

§ 490.507(b), MPOs are granted 

additional flexibility in how they 

calculate the GHG metric, described in 

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 

CO2 emissions in the State, VMT 

estimates along with MOVES 1

emissions factors, FHWA’s Energy and 

Emissions Reduction Policy Analysis 

Tool (EERPAT) model, or other method 

the MPO can demonstrate has valid and 

useful results for CO2 measurement. The 

metric calculation method shall be 

mutually agreed upon by both the State 

DOT and the MPO. 

* * * * * 

(f) Tailpipe CO2 emissions generated 

by on-road sources travelling on the 

NHS (the GHG metric), and generated by 

on-road sources travelling on all 

roadways (the step in the calculation 

prior to computing the GHG metric) 

shall be calculated as specified in 

paragraph (c) of this section. The 

calculations shall be reported in the 

State Biennial Performance Reports, as 

required in § 490.107, and shall address 

the following time periods. 

(1) The reference year, as required in 

§ 490.107(b)(1)(ii)(H); and 

(2) The 2 years preceding the 

reporting years, as required in 

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

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

■ 10. Amend § 490.513 by adding 

paragraph (d) to read as follows: 

§ 490.513 Calculation of National Highway 

System performance measures. 

* * * * * 

(d) The GHG measure specified in 

§ 490.507(b) shall be computed to the 

nearest tenth of a percent as follows: 


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42422 Federal Register / Vol. 87, No. 135 / Friday, July 15, 2022 / Proposed Rules 

Where: 

(Tailpipe CO2 Emissions on NHS)CY = total 

tailpipe CO2 emissions on the NHS in a 

calendar year (expressed in million 

metric tons (mmt), and rounded to the 

nearest hundredth); and 

(Tailpipe CO2 Emissions on NHS)reference year

= total tailpipe CO2 emissions on the 

NHS in calendar year 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2021–0923; FRL–9882–01– 

R9] 

Air Plan Approval; California; Mojave 

Desert Air Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the Mojave Desert Air 

Quality Management District 

(MDAQMD or ‘‘District’’) portion of the 

California State Implementation Plan 

(SIP). This revision concerns emissions 

of oxides of nitrogen (NOX) from 

Portland cement kilns. We are 

proposing to approve a local rule to 

regulate these emission sources under 

the Clean Air Act (CAA or the Act). We 

are taking comments on this proposal 

and plan to follow with a final action. 

DATES: Comments must be received on 

or before August 15, 2022. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2021–0923 at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with 

disabilities who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Elijah Gordon, EPA Region IX, 75 

Hawthorne St. (AIR–3–2), San 

Francisco, CA 94105. By phone: (415) 

972–3158 or by email at gordon.elijah@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the rule revision? 

II. The EPA’s Evaluation and Action 

A. How is the EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. Public Comment and Proposed Action 

III. Incorporation by Reference 

IV. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rule did the State submit? 

Table 1 lists the rule addressed by this 

proposal with the dates that it was 

adopted by the local air agency and 

submitted by the California Air 

Resources Board (CARB). 

TABLE 1—SUBMITTED RULE

Local agency Rule # Rule title Amended Submitted 

MDAQMD ............................................ 1161 Portland Cement Kilns ....................................................... 01/22/2018 05/23/2018 

On November 23, 2018, pursuant to 

CAA section 110(k)(1)(B) and 40 CFR 

part 51, appendix V, the submittal for 

the MDAQMD Rule 1161 was deemed 

complete by operation of law. 

B. Are there other versions of this rule? 

We approved an earlier version of 

Rule 1161 into the SIP on February 27, 

2003 (68 FR 9015). The MDAQMD 

adopted revisions to the SIP-approved 

version on January 22, 2018, and CARB 

submitted them to us on May 23, 2018. 

If we take final action to approve the 

January 22, 2018 version of Rule 1161, 

this version will replace the previously 

approved version of the rule in the SIP. 

C. What is the purpose of the rule 

revision? 

Emissions of NOX contribute to the 

production of ground-level ozone, smog 

and particulate matter (PM), which 

harm human health and the 

environment. Section 110(a) of the CAA 

requires states to submit plans that 

provide for implementation, 

maintenance, and enforcement of the 

National Ambient Air Quality Standards 

(NAAQS). SIP-approved Rule 1161 

established NOX emission limits for 

Portland cement kilns within the 

District. 

On November 17, 2017 (82 FR 54309), 

the EPA proposed to conditionally 

approve the MDAQMD’s reasonably 

available control technology (RACT) 

demonstrations for the 1997 8-hour 

ozone NAAQS and the 2008 8-hour 

ozone NAAQS (referred to as the 2006 

and 2015 RACT SIPs) based on 

deficiencies in several rules. One of the 

rules noted was Rule 1161, which did 

not meet current RACT based on 

comparisons of NOX emission limits in 

ozone nonattainment areas located in 

other states deemed to meet or exceed 

RACT. The conditional approval, 

finalized on February 12, 2018 (83 FR 

5921), was based on commitments from 


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