[Federal Register Volume 87, Number 135 (Friday, July 15, 2022)]
[Proposed Rules]
[Pages 42401-42422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14679]
=======================================================================
-----------------------------------------------------------------------
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
[email protected], or Mr. Lev Gabrilovich, Office of the Chief
Counsel (HCC-30), (202) 366-3813, or via email at
[email protected]. Office hours are from 8:00 a.m. to 4:30 p.m.,
E.T., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
This document and all comments received may be viewed online
through the Federal eRulemaking portal at www.regulations.gov using the
docket number listed above. Electronic retrieval help and guidelines
are also available at www.regulations.gov. An electronic copy of this
document may also be downloaded from the Office of the Federal
Register's website at www.FederalRegister.gov and the Government
Publishing Office's website at www.GovInfo.gov.
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments,
FHWA will also continue to file relevant information in the docket as
it becomes available after the comment period closing date and
interested persons should continue to examine the docket for new
material. A final rule may be published at any time after close of the
comment period and after DOT has had the opportunity to review the
comments submitted.
Table of Contents for Supplementary Information
I. Executive Summary
II. Background and Regulatory History
III. Statement of the Problem, Legal Authority, and Rationale
A. Confronting the Climate Crisis
B. Legal Authority for the Proposed GHG Measure
C. Additional Rationale for the Proposed GHG Measure
1. Costs and Benefits
2. Duplication of Efforts
D. Expected Schedule for Implementation
IV. Section-by-Section Discussion of the Proposed Changes
A. Subpart A--General Information
B. Subpart E--National Performance Management Measures to Assess
[[Page 42402]]
Performance of the National Highway System
V. Additional Requests for Comments
A. Establishing Targets That Lead to Improved Environmental
Performance
B. Summary of and Request for Comments on the Regulatory Impact
Analysis
VI. Rulemaking Analyses and Notices
I. Executive Summary
FHWA proposes to amend its regulations on national performance
management measures to establish a method for the measurement and
reporting of GHG emissions associated with transportation under Title
23, U.S.C. The environmental sustainability, and specifically the
carbon footprint, of the transportation system is a critically
important attribute that State DOTs can and should use to assess the
performance of the Interstate and non-Interstate National Highway
System (NHS). 23 U.S.C. 150(c) directs FHWA to establish performance
measures that the State DOTs can use to assess performance of the
Interstate and non-Interstate NHS. Although the statute does not define
the meaning of ``performance'' of the Interstate and non-Interstate NHS
under 23 U.S.C. 150(c), Congress identified national goals under 23
U.S.C. 150(b), which include environmental sustainability. To support
the environmental sustainability national goal, FHWA is proposing that
``performance'' of the Interstate and non-Interstate NHS under 23
U.S.C. 150(c) includes environmental performance. This definition of
``performance'' is also consistent with other Title 23, U.S.C.
provisions, such as 23 U.S.C. 119, as discussed later in this preamble.
The proposed GHG measure would be codified among the National
Highway Performance Program (NHPP) performance measures that FHWA
established in 23 CFR part 490 (part 490) through prior rulemakings.
The proposed rule would require State DOTs and MPOs that have NHS
mileage within their State geographic boundaries and metropolitan
planning area boundaries, respectively, to establish declining targets
that reduce 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 Sec. 490.503(a)(2). State DOTs would
establish 2- and 4-year statewide emissions reduction targets, and MPOs
would establish 4-year emissions reduction targets for their
metropolitan planning areas. In addition, the proposed rule would
require certain MPOs serving urbanized areas to establish additional
joint targets. The term ``urbanized area'' means a geographic area with
a population of 50,000 or more, as designated by the Bureau of the
Census. 23 CFR 450.104; see 23 U.S.C. 101(a)(34). Specifically, when
the metropolitan planning area boundaries of two or more MPOs overlap
any portion of an urbanized area, and the urbanized area contains NHS
mileage, those MPOs would establish joint 4-year targets for that
urbanized area. This joint target would be established in addition to
each MPO's target for their metropolitan planning area. Further, the
proposed rule would require State DOTs and MPOs to set declining
targets for reducing tailpipe 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).
---------------------------------------------------------------------------
\1\ The 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-us-greenhouse-gas-emissions-and-sinks-1990-2019.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ See IPCC, 2021: Summary for Policymakers. In: Climate Change
2021: The Physical Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the Intergovernmental Panel on
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
\3\ IPCC, 2021: Climate Change 2021: The Physical Science Basis.
Contribution of Working Group I to the Sixth Assessment Report of
the Intergovernmental Panel on Climate Change [Masson-Delmotte, V.,
P. Zhai, A. Pirani, S.L. Connors, C. P[eacute]an, S. Berger, N.
Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E.
Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O.
Yelek[ccedil]i, R. Yu, and B. Zhou (eds.)]. Cambridge University
Press. In Press.
\4\ NOAA National Centers for Environmental Information (NCEI)
U.S. Billion-Dollar Weather and Climate Disasters (2022). https://www.ncei.noaa.gov/access/billions/, DOI: 10.25921/stkw-7w73.
\5\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A. Choate,
S. DesRoches, S. Douglass, and R. Miller, 2018: Transportation. In
Impacts, Risks, and Adaptation in the United States: Fourth National
Climate Assessment, Volume II [Reidmiller, D.R., C.W. Avery, D.R.
Easterling, K.E. Kunkel, K.L.M. Lewis, T.K. Maycock, and B.C.
Stewart (eds.)]. U.S. Global Change Research Program, Washington,
DC, USA, pp. 479-511. doi: 10.7930/NCA4.2018.CH12.
---------------------------------------------------------------------------
The proposed GHG measure would align with recent Executive Orders
described later in this preamble and a U.S. target of achieving a 50 to
52 percent reduction from 2005 levels of economy-wide net GHG pollution
in
[[Page 42403]]
2030, on a course toward reaching net-zero emissions economy-wide by no
later than 2050.\6\ The first step toward reducing GHG emissions in
every sector involves inventorying and monitoring those emissions. The
transportation sector is both the largest source of U.S. CO2
emissions \7\ and increasingly vulnerable to the higher temperatures,
more frequent and intense precipitation, and sea level rise associated
with the changing climate.
---------------------------------------------------------------------------
\6\ White House Fact Sheet: President Biden Sets 2030 Greenhouse
Gas Pollution Reduction Target Aimed at Creating Good-Paying Union
Jobs and Securing U.S. Leadership on Clean Energy Technologies (Apr.
22, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/; White House Fact Sheet: President Biden's Leaders
Summit on Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/; see U.S.
Department of Transportation Strategic Plan FY 2022-2026, available
at https://www.transportation.gov/sites/dot.gov/files/2022-04/US_DOT_FY2022-26_Strategic_Plan.pdf.
\7\ See EPA Inventory of U.S. Greenhouse Gas Emissions and
Sinks, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
---------------------------------------------------------------------------
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 non-Interstate NHS. Although
the statute does not define performance, 23 U.S.C. 150(b)(6) identifies
environmental sustainability as a national goal of the Federal-aid
highway program. To address this national goal, FHWA has determined
that the performance of the Interstate System and the NHS under 23
U.S.C. 150(c)(3)(A)(ii)(IV)-(V) includes environmental performance. The
proposed GHG measure is also appropriate in light of other provisions
of Title 23, U.S.C., notably the National highway performance program
provisions at 23 U.S.C. 119, which include requirements for State asset
management plans that support progress toward the achievement of the
environmental sustainability national goal to enhance the performance
of the transportation system while protecting and enhancing the natural
environment at 23 U.S.C. 150(b)(6). In addition, several other
provisions support the measure, including: 23 U.S.C. 101(b)(3)(G)
(transportation policy); 134(a)(1) (transportation planning policy);
134(c)(1) (metropolitan planning); and 135(d)(1) and (d)(2) (statewide
planning process and a performance-based approach).
The proposed GHG measure does not conflict with the on-road mobile
source emissions provision in 23 U.S.C. 150(c)(5), which requires that
the Secretary establish performance measures to carry out the
Congestion Mitigation and Air Quality Improvement (CMAQ) Program to
reduce criteria pollutants under 23 U.S.C. 149. As discussed below,
performance measures may overlap to achieve the national goals set
forth in the statute.
In addition, there are two other lines of support for the proposed
GHG measure. First, the proposed measure would inform transportation
planning at all levels of government, including by State DOTs, MPOs,
and FHWA. By providing consistent and timely information about on-road
mobile source emissions on the NHS, the proposed GHG measure has the
potential to yield benefits including greater public awareness of GHG
emissions trends, increased transparency and improved decision-making
at all levels of government, and planning choices to reduce GHG
emissions or inform tradeoffs among competing policy choices.
Second and related, the establishment of a national GHG measure
would provide a new source of information that would be valuable to
State DOTs, MPOs, and the Federal government as they pursue GHG
reduction goals and targets. The potential for duplication of efforts
by other government entities was one reason FHWA cited in 2018 when
repealing the 2017 GHG measure. Upon further consideration, FHWA
rejects the notion that the proposed GHG measure would duplicate other
efforts and therefore is inappropriate. While the U.S. Department of
Energy (DOE) and the U.S. Environmental Protection Agency (EPA) publish
State-by-State 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-of-
Government approach to address climate change and its effects, and
would provide State DOTs with valuable information that is not already
addressed by other Federal agencies.
FHWA proposes changes to two subparts of part 490: Subpart A--
General Information, and Subpart E--National Performance Management
Measures to Assess Performance of the National Highway System. The
proposed changes to subpart A include a new definition in Sec. 490.101
and the addition of references to the proposed GHG measure and new
provisions in the following sections: Sec. 490.105 Establishment of
performance targets; Sec. 490.107 Reporting on performance targets;
and Sec. 490.109 Assessing significant progress toward achieving the
performance targets for the National Highway Performance Program and
the National Highway Freight Program. The
[[Page 42404]]
proposed changes to subpart E would incorporate the GHG measure into
existing regulations on NHPP performance measures. Specifically, the
proposed changes would affect the following sections: Sec. 490.503
Applicability; Sec. 490.505 Definitions; Sec. 490.507 National
performance management measures for system performance; Sec. 490.509
Data requirements; Sec. 490.511 Calculation of National Highway System
performance metrics; and Sec. 490.513 Calculation of National Highway
System performance measures.
The draft regulatory impact analysis (RIA) prepared pursuant to
Executive Order 12866, and which is available in the rulemaking docket
(Docket No. FHWA-2021-0004), estimates the costs associated with
establishing the GHG measure, derived from the costs of implementing
the GHG measure for each component of the rule that may involve costs.
To estimate the costs, FHWA assessed the level of effort that would be
needed to comply with each applicable section in part 490 with respect
to the GHG measure, including labor hours by labor category, over a 10-
year study period (2022-2031). Total costs over this period are
estimated to be $11.0 million, discounted at 7 percent, and $12.9
million, discounted at 3 percent. The RIA discusses anticipated
benefits of the rule qualitatively; they are not quantified because
they are difficult to forecast and monetize.
II. Background and Regulatory History
The 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21,
Pub. L. 112-141) and the 2015 Fixing America's Surface Transportation
(FAST Act, Pub. L. 114-94) transformed the Federal-aid highway program
by establishing performance management requirements and tasking FHWA
with carrying them out. To implement this program, FHWA established an
organizational unit with dedicated full time staff to coordinate with
program staff from each of the performance areas to design and
establish an approach to effectively implement the Title 23 performance
provisions. FHWA has technical and policy experts on staff to provide
State DOTs and MPOs assistance implementing performance management, and
to oversee program requirements.
FHWA conducted several rulemakings to implement the new performance
management framework. The rulemakings established in part 490 the
performance measures and requirements for target establishment,
reporting on progress, and how determinations would be made on whether
State DOTs have made significant progress toward applicable targets.
The transportation performance management requirements provide
increased accountability and transparency, and facilitate efficient
investment of Federal transportation funds through a focus on
performance outcomes for the seven national transportation goals
concerning safety, infrastructure condition, congestion reduction,
system reliability, freight movement and economic vitality,
environmental sustainability, and reduced project delivery delays. See
23 U.S.C. 150(b). Through performance management, recipients of
Federal-aid highway funds make transportation investments to achieve
short-term performance targets and make progress toward the longer-term
national goals. Performance management allows FHWA to more effectively
evaluate and report on the Nation's surface transportation conditions
and performance.
Prior to MAP-21, there were no explicit statutory requirements for
State DOTs or MPOs to demonstrate how their transportation programs
supported national performance outcomes, making it difficult to assess
the effectiveness of the Federal-aid highway program. The new
Transportation Performance Management (TPM) requirements established in
MAP-21 changed this paradigm by requiring State DOTs and MPOs to
measure condition or performance, establish targets, assess progress
towards targets, and report on condition or performance in a nationally
consistent manner for the first time (23 U.S.C. 150(e) and 23 CFR
490.107).
As previously noted, FHWA conducted several rulemakings
implementing the performance management framework. Most relevant to
this proposed rule are three related national performance management
measure rulemakings in which FHWA established various measures for
State DOTs and MPOs to use to assess performance, found at 23 CFR part
490. The first rulemaking focused on Safety Performance Management
(PM1), and a final rule published on March 15, 2016 (81 FR 13882),
established performance measures for State DOTs to use to carry out the
Highway Safety Improvement Program (HSIP). The second rulemaking on
Infrastructure Performance Management (PM2) resulted in a final rule
published on January 18, 2017 (82 FR 5886), that established
performance measures for assessing pavement condition and bridge
condition for the NHPP. The third rulemaking, System Performance
Management (PM3), established measures for State DOTs and MPOs to use
to assess the performance of the Interstate and non-Interstate NHS for
the purpose of carrying out the NHPP; to assess freight movement on the
Interstate System; and to assess traffic congestion and on-road mobile
source emissions for the purpose of carrying out the CMAQ Program. The
PM3 final rule was published on January 18, 2017 (82 FR 5970).
The PM3 rule addressed a broad set of performance issues and some
of the national transportation goals, such as environmental
sustainability, that were not addressed in the earlier rulemakings
focused solely on safety and infrastructure condition. In the preamble
to the PM3 proposed rule, published on April 22, 2016 (81 FR 23806),
FHWA requested public comment on whether to establish a CO2
emissions measure in the final rule and, if so, how to do so. FHWA
acknowledged the contribution of on-road sources to over 80 percent of
U.S. transportation sector GHG emissions, and the historic Paris
Agreement in which the United States and more than 190 other countries
agreed in December 2015 to reduce GHG emissions, with the goal of
limiting global temperature rise to less than 2 degrees Celsius above
pre-industrial levels by 2050. FHWA recognized that achieving U.S.
climate goals would require significant GHG reductions from on-road
transportation sources. See 81 FR 23830. Against this backdrop, FHWA
stated that it was considering how GHG emissions could be estimated and
used to inform planning and programming decisions to reduce long term
emissions. FHWA sought comment on the potential establishment and
effectiveness of a GHG emissions measure as a planning, programming,
and reporting tool, and FHWA requested feedback on specific
considerations related to the design of such a measure. 82 FR 23831.
In the PM3 final rule, FHWA established a GHG emissions performance
measure to measure environmental performance in accordance with 23
U.S.C. 150(c)(3) after considering extensive public comments on whether
and how FHWA should establish such a measure. Specifically, the GHG
measure involved the percent change in 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
[[Page 42405]]
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.
---------------------------------------------------------------------------
\8\ See IPCC, 2021: Summary for Policymakers. In: Climate Change
2021: The Physical Science Basis. Contribution of Working Group I to
the Sixth Assessment Report of the Intergovernmental Panel on
Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
---------------------------------------------------------------------------
Other research also shows that 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\
---------------------------------------------------------------------------
\9\ Wuebbles, D.J., D.R. Easterling, K. Hayhoe, T. Knutson, R.E.
Kopp, J.P. Kossin, K.E. Kunkel, A.N. LeGrande, C. Mears, W.V. Sweet,
P.C. Taylor, R.S. Vose, and M.F. Wehner, 2017: Climate Science
Special Report: Fourth National Climate Assessment, Volume I
[Wuebbles, D.J., D.W. Fahey, K.A. Hibbard, D.J. Dokken, B.C.
Stewart, and T.K. Maycock (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, (U.S. GCRP 2017 Climate Science
Special Report) pp. 82, doi: 10.7930/J08S4N35, available at https://science2017.globalchange.gov/.
\10\ National Oceanic and Atmospheric Administration (2021).
Trends in Atmospheric Carbon Dioxide (NOAA 2021 Trends in
Atmospheric Carbon Dioxide), available at https://www.esrl.noaa.gov/gmd/ccgg/trends/.
\11\ Intergovernmental Panel on Climate Change. Climate Change
2014 Synthesis Report Summary for Policymakers (IPCC 2014 Report),
available at https://www.ipcc.ch/site/assets/uploads/2018/02/AR5_SYR_FINAL_SPM.pdf.
\12\ U.S. GCRP 2017 Climate Science Special Report at 80.
\13\ NOAA 2021 Trends in Atmospheric Carbon Dioxide.
\14\ Id.
\15\ International Energy Agency (2021) Global Energy Review:
CO2 Emissions in 2020.
---------------------------------------------------------------------------
Scientists have warned that significant and potentially dangerous
shifts in climate and weather are possible with climate change of 2
degrees Celsius (3.6 degrees Fahrenheit) beyond preindustrial
levels.\16\ Stabilizing at this level would likely require atmospheric
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
[[Page 42406]]
2070.\18\ The Paris Agreement goal is to limit global warming well
below that level, and preferably to 1.5 degrees Celsius (2.7 degrees
Fahrenheit),\19\ which the IPCC estimates would likely require
decreasing global net anthropogenic CO2 emissions 45 percent
below 2010 levels by 2030, reaching net-zero around 2050.\20\ The IPCC
Sixth Assessment Report includes new estimates of the likelihood of
crossing the 1.5 degree Celsius threshold, concluding that without
immediate, rapid and large-scale reductions in GHG emissions, it will
no longer be possible to limit warming to 1.5 degrees or even 2 degrees
Celsius.\21\
---------------------------------------------------------------------------
\16\ See Intergovernmental Panel on Climate Change (2018)
Summary for Policymakers. In Global Warming of 1.5 Deg. C. An IPCC
Special Report, available at https://www.ipcc.ch/sr15/chapter/spm.
\17\ IPCC 2014 Report.
\18\ Intergovernmental Panel on Climate Change. Climate Change
2018: Summary for Policymakers. (IPCC 2018 Report), available at
https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf.
\19\ U.S. Department of State (2021). U.S.--China Joint
Statement Addressing the Climate Crisis, available at https://www.state.gov/u-s-china-joint-statement-addressing-the-climate-crisis/.
\20\ Intergovernmental Panel on Climate Change (2018). Special
Report: Global Warming of 1.5 Degrees. Summary for Policymakers.
https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf.
\21\ See IPCC, 2021: Summary for Policymakers. In: Climate
Change 2021: The Physical Science Basis. Contribution of Working
Group I to the Sixth Assessment Report of the Intergovernmental
Panel on Climate Change, available at https://www.ipcc.ch/report/ar6/wg1/#SPM.
---------------------------------------------------------------------------
Given the urgency of the climate crisis, several recent Executive
orders and other commitments prioritize actions throughout the
Government to address climate change. Section 1 of E.O. 13990,
``Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis,'' 86 FR 7037 (Jan. 25, 2021), articulates
national policy objectives, including listening to the science,
improving public health and protecting the environment, reducing GHG
emissions, and strengthening resilience to the impacts of climate
change. E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad,''
86 FR 7619 (Feb. 1, 2021), recommits the United States to the Paris
Agreement and calls on the United States to begin the process of
developing its nationally determined contribution to global GHG
reductions with analysis and input from executive departments and
agencies and outreach to domestic stakeholders. 86 FR 7620. Under that
nationally determined contribution, the U.S. will target reducing
emissions by 50 to 52 percent by 2030 compared to 2005 levels.\22\
---------------------------------------------------------------------------
\22\ White House Fact Sheet: President Biden's Leaders Summit on
Climate (Apr. 23, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/fact-sheet-president-bidens-leaders-summit-on-climate/. In addition, E.O. 14057,
``Catalyzing Clean Energy Industries and Jobs Through Federal
Sustainability,'' 86 FR 70935 (Dec. 13, 2021), highlights the
Federal Government's role in transforming the ways the Government
builds, buys, and manages electricity, vehicles, buildings, and
other operations to be clean and sustainable.
---------------------------------------------------------------------------
E.O. 14008 also calls for a Government-wide approach to the climate
crisis and acknowledges opportunities to create jobs to build a modern,
sustainable infrastructure, to provide an equitable, clean energy
future, and to put the United States on a path to achieve net-zero
emissions, economywide, no later than 2050. 86 FR 7622. Notably,
section 201 of E.O. 14008 calls on the Federal Government to drive
assessment, disclosure, and mitigation of climate pollution and
envisions Federal actions combined with efforts from every level of
government and every economic sector. 86 FR 7622. It also supports the
principle set forth in section 213 ``to ensure that Federal
infrastructure investment reduces climate pollution.'' 86 FR 7626. This
principle affirms that reducing GHGs is part of the expected
performance of transportation infrastructure, making it an appropriate
and necessary metric for the NHS.
In addition, sections 1 and 2 of E.O. 13990 direct that all
agencies immediately review Federal regulations promulgated and other
actions taken between January 20, 2017, and January 20, 2021, and,
consistent with applicable law, take action to address regulations that
conflict with the national objectives stated in section 1 of E.O. 13990
and to begin work immediately to address the climate crisis. 86 FR
7037. In response to this direction, FHWA has reviewed the May 2018
final rule that repealed the 2017 GHG measure and has concluded that
the repeal conflicts with those national objectives, which include
reducing GHG emissions. Because reducing GHG emissions is clearly
established as a national priority and national goal in section 1 of
E.O. 13990 and E.O. 14008, FHWA has concluded that it is appropriate to
propose to reestablish a GHG performance measure for the reasons set
forth in this preamble. The proposed measure is similar to the repealed
2017 GHG measure. However, FHWA is updating analyses and proposing
updated requirements associated with the measure. Additionally, FHWA is
proposing to require State DOTs and MPOs to set declining targets for
reducing tailpipe 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\
---------------------------------------------------------------------------
\23\ U.S. Environmental Protection Agency (2021). Inventory of
U.S. Greenhouse Gas Emissions and Sinks: 1990-2019, available at
https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
\24\ U.S. Energy Information Administration (2021). Annual
Energy Outlook 2021, available at https://www.eia.gov/outlooks/aeo/tables_ref.php.
\25\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A.
Choate, S. DesRoches, S. Douglass, and R. Miller, 2018:
Transportation. In Impacts, Risks, and Adaption in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Mayock, and B.C. Stewart (eds.)] U.S. Global Change Research
Program, Washington, DC, USA, pp. 479-511. doi: 10.7930/
NCA4.2018.CH12, available at https://nca2018.globalchange.gov/chapter/12/.
---------------------------------------------------------------------------
In addition to being the largest source of U.S. 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
[[Page 42407]]
or flooded facilities).\28\ In other words, the transportation system
both contributes to climate change and suffers from the impacts of
climate change.
---------------------------------------------------------------------------
\26\ FHWA 2013 Conditions and Performance Report (PDF Version),
``Advancing Environmental Sustainability'' at 5-6 through 5-7,
available at https://www.fhwa.dot.gov/policy/2013cpr/pdfs.cfm.
\27\ A Performance-Based Approach to Addressing Greenhouse Gas
Emissions through Transportation Planning, FHWA (December 2013) at
iii-iv, available at https://www.fhwa.dot.gov/environment/
climate_change/mitigation/publications/ghg_planning/index.cfm.
\28\ Extreme weather and other impacts related to GHG emissions,
such as sea level rise, can harm, disrupt, and damage transportation
systems, particularly through flooding, resulting in costly
disruptions. For discussions of the potential disruptive effects of
climate change on the transportation system, see also Impacts of
Climate Change and Variability on Transportation Systems and
Infrastructure: The Gulf Coast Phase 2, Task 3.2 Engineering
Assessments of Climate Change Impacts and Adaptation Measures (FHWA
and DOT Climate Change Center) (August 2014) at 273 (available as of
September 14, 2016, at http://www.fhwa.dot.gov/environment/
climate_change/adaptation/ongoing_and_current_research/
gulf_coast_study/phase2_task3/task_3.2/task2phase3.pdf); and Hampton
Roads Climate Impact Quantification Initiative, Baseline Assessment
of the Transportation Assets and Overview of Economic Analyses
Useful in Quantifying Impacts, DOT (September 13, 2016) (available
as of November 1, 2016 at https://rosap.ntl.bts.gov/view/dot/12379).
---------------------------------------------------------------------------
Transportation infrastructure is increasingly at risk from
increased intensity and frequency of precipitation, sea level rise and
resulting coastal flooding, heat, wildfires, and other extreme events
associated with a changing climate. These impacts threaten to increase
the cost of maintaining, repairing, and replacing infrastructure,
particularly assets that are approaching or beyond their design life.
Climate impacts also threaten the performance of the entire network, as
defined by national goals identified in 23 U.S.C. 150(b). Basic
mobility and economic needs will be compromised by both short-term and
long-term impacts of climate change. Potential consequences include
effects on safety, environmental sustainability, economic vitality and
mobility, congestion, and system reliability. Given the increased
severity of extreme weather events resulting from climate change,
ensuring safe and effective emergency evacuation routes will become
increasingly difficult. These effects may disproportionately affect
vulnerable populations and urban transportation assets.\29\
---------------------------------------------------------------------------
\29\ Jacobs, J.M., M. Culp, L. Cattaneo, P. Chinowsky, A.
Choate, S. DesRoches, S. Douglass, and R. Miller, 2018:
Transportation. In Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 479-511. doi: 10.7930/
NCA4.2018.CH12.
---------------------------------------------------------------------------
In the face of these climate challenges, establishing a GHG measure
in FHWA's Transportation Performance Management Program would provide a
consistent basis for addressing the environmental sustainability of the
system and estimating on-road GHG emissions. The measure would aid
State DOTs and MPOs in planning GHG emissions reductions and evaluating
progress toward national, State, and local GHG targets. Comprehensive
transportation planning processes require consideration of strategies
that protect and enhance the environment, promote energy conservation,
improve the quality of life, and improve the resiliency and reliability
of the transportation system. See 23 U.S.C 134(h)(1)(E) and (I) and 23
U.S.C 135(d)(1)(E) and (I). Statewide and metropolitan transportation
planning processes are required to use a performance-based approach to
transportation decision-making to support the national goals described
in 23 U.S.C. 150(b). Such an approach includes establishing performance
targets that address the performance measures established by FHWA under
23 U.S.C. 150(c), where applicable, to track progress toward attainment
of critical outcomes for the State or MPO region. 23 U.S.C.
134(h)(2)(A)-(B) and 135(d)(2)(A)-(B). Further, States and MPOs are
required to integrate the goals, objectives, performance measures, and
targets into their transportation planning processes, and States
consider them when developing policies, programs, and investment
priorities reflected in the statewide transportation plan and the
Statewide Transportation Improvement Program (STIP). 23 U.S.C.
134(h)(2)(D) and 135(d)(2)(C) and (D); see 23 CFR 450.218(q) and
450.326(d).
Establishing a GHG measure also would result in a consistent set of
data that could inform the future investment decisions of the Federal
Government, State DOTs, and MPOs towards achieving their targets or
goals. In addition, an on-road GHG emissions measure would advance the
Federal-aid highway program's national goal for environmental
sustainability identified under 23 U.S.C. 150(b)(6). In implementing
the proposed measure, FHWA intends to consider a wide range of data and
tools from EPA, the DOE National Laboratories, and other Federal
agencies.
An on-road GHG emissions measure would allow State DOTs, MPOs, and
FHWA to analyze transportation GHG trends and could facilitate DOT
contributions to the National Climate Task Force established in section
203 of E.O. 14008 to facilitate the organization and deployment of a
Government-wide approach to the climate crisis. See 86 FR 7623. The
proposed GHG measure would inform DOT-wide efforts to engage with
domestic stakeholders and to identify U.S. contributions to needed
reductions under the Paris Agreement and the U.S. target of reducing
emissions by 50 to 52 percent by 2030 compared to 2005 levels, as well.
While on-road tailpipe CO2 emissions on the NHS represent
one discrete component of U.S. transportation sector GHG emissions,
measuring and reporting on-road 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 non-Interstate
NHS. This interpretation is also consistent with 23 U.S.C. 150(c)(2),
as further described in this preamble.
In the May 2018 final rule repealing the GHG performance
requirements in the PM3 rule, FHWA reconsidered its interpretation of
the statute and determined that the statute did not
[[Page 42408]]
specifically direct or require FHWA to adopt a GHG measure. In deciding
to repeal the GHG measure in 2018, FHWA adopted a narrow interpretation
of the statute. FHWA has reconsidered its interpretation of the statute
and believes that adopting a GHG measure is both consistent with the
Agency's statutory authority and the implementation of sections 1 and 2
of E.O. 13990.
First, Congress specifically directed FHWA to establish measures
for States to use to assess the performance of the Interstate System
and the non-Interstate NHS. See 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V).
Although Congress did not define the meaning of performance under this
provision, the statute identifies seven national goals to inform
performance management. Environmental sustainability is one of the
specifically identified goals, which is defined as ``enhance[ing] the
performance of the transportation system while protecting and enhancing
the natural environment.'' 23 U.S.C. 150(b)(6). In light of this
explicit goal and FHWA's past practice, as described further in this
section, FHWA believes that it is appropriate to interpret the meaning
of performance of the Interstate System and the NHS under 23 U.S.C.
150(c)(3)(A)(ii)(IV)-(V) to include environmental performance. When
FHWA enacted a GHG performance measure in the PM3 final rule, the
Agency determined that it is appropriate to adopt the measure under 23
U.S.C. 150(c)(3), as that section does not impose any limitation on
what type of NHS performance may be measured in rules promulgated under
23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V), and because environmental
performance is an integral part of the Federal-aid highway program, as
reflected by the national goal of environmental sustainability in 23
U.S.C. 150(b)(6), transportation planning provisions in 23 U.S.C. 134
and 135, and environmental provisions in 23 U.S.C. 109(c), (g), (h),
(i), and (j). The Agency also noted that this interpretation is
supported by the many FHWA actions to treat the environment, and
specifically sustainability and climate change, as part of system
performance. 82 FR 5970, 5995. When FHWA repealed the GHG performance
measure, the Agency took a narrow view and determined that since 23
U.S.C. 150(c)(2)(C) directs FHWA to limit performance measures only to
those described in 23 U.S.C. 150(c), FHWA's previous interpretation
that performance of the Interstate System and the National Highway
System under 23 U.S.C. 150(c)(3)(A)(ii)(IV)-(V) includes environmental
performance was overly broad.
FHWA has reexamined this determination from the 2018 repeal final
rule and is proposing to reassert FHWA's earlier determination in the
PM3 final rule that FHWA has authority under 23 U.S.C. 150(c)(3) to
establish a GHG performance measure. Congress has not directly
addressed the meaning of ``performance'' under the NHPP. Rather, FHWA
is proposing that Congress has directed FHWA to determine the nature
and scope of the specific performance measures that will fulfill the
statutory mandate in 23 U.S.C. 150(c). Accordingly, FHWA is proposing
that the performance of the Interstate System and the NHS includes
environmental performance. This interpretation is reasonable in light
of FHWA's statutory mandate to address the national goal of
environmental sustainability under 23 U.S.C. 150(b)(6), as well as
resilience under 23 U.S.C. 119, as further described in this preamble.
Notably, 23 U.S.C. 150(c)(2)(C) limits performance measures to those
described in 23 U.S.C. 150(c). The provision limits FHWA's authority to
establish measures States use to assess performance only to the
Interstate System and the NHS. However, the provision does not
otherwise limit the meaning of ``performance''.
Second, FHWA's proposed adoption of the GHG measure is consistent
with other parts of Title 23 of the U.S.C., notably 23 U.S.C. 119. In
the PM3 final rule, the Agency identified that 23 U.S.C. 119 provides
additional statutory support for the GHG measure. 82 FR 5995. Section
119 of Title 23, U.S.C. sets forth the purposes of the NHPP,
eligibilities for NHPP funding, purposes and requirements for State
performance management (including asset management, significant
progress and reporting requirements for performance measures),
Interstate and bridge condition penalty provisions for falling below
minimum conditions established by the Secretary, and environmental
mitigation. FHWA noted that the performance management provisions in 23
U.S.C. 119(e) call for a performance-driven asset management plan that
would ``support progress toward the achievement of the national goals
identified in section 150(b).'' The 2017 GHG measure was developed to
enhance the performance of the transportation system while protecting
and enhancing the natural environment, consistent with the national
goal under 23 U.S.C. 150(b)(6). Thus, by supporting the achievement of
the national performance goals, the 2017 GHG measure, and by extension
this proposed rule, supports FHWA's implementation of 23 U.S.C. 119.
Additionally, the Infrastructure Investment and Jobs Act (IIJA) (Pub.
L. 117-58, also known as the ``Bipartisan Infrastructure Law''),
amended 23 U.S.C. 119 to indicate that one of the purposes of the NHPP
is ``to provide support for activities to increase the resiliency of
the National Highway System to mitigate the cost of damages from sea
level rise, extreme weather events, flooding, wildfires, or other
natural disasters.'' IIJA Section 11105. By addressing the performance
of the transportation system related to the largest source of U.S.
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
[[Page 42409]]
23, U.S.C., establishes eligibility criteria for using funds
apportioned to a State for carrying out the NHPP, but does not set
forth all relevant considerations for carrying out the program. For
example, 23 U.S.C. 119(d)(2) identifies purposes for eligible projects,
including development and implementation of a State DOT's asset
management plan for the NHS under 23 U.S.C. 119(e) and environmental
mitigation efforts related to projects funded under 23 U.S.C. 119(g).
As previously noted, 23 U.S.C. 119(e) calls for a performance-driven
asset management plan that would ``support progress toward the
achievement of the national goals identified in section 150(b)'', which
includes the environmental sustainability national goal under 23 U.S.C.
150(b)(6). Risk-based asset management planning under 23 U.S.C. 119(e)
includes consideration of life-cycle costs and risk management,
financial planning, and investment strategies. As previously discussed,
rapidly changing climate and increased weather extremes due to fossil
fuel combustion directly impact the condition and performance of
transportation facilities due to increases in heavy precipitation,
coastal flooding, heat, wildfires, and other extreme events. Extreme
events will lead to increasing transportation challenges, inducing
societal and economic consequences. The number of billion-dollar
climate disaster events has been much higher over the last five years
than the annual average over the last 30 years.\30\ Low-income and
vulnerable populations are disproportionately affected by the impacts
of climate change.\31\ These impacts are not attributable to any single
action, but are exacerbated by a series of actions, including actions
taken under the Federal-aid highway program. Measuring environmental
performance though the GHG performance measure will assist States to
consider 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.
---------------------------------------------------------------------------
\30\ NOAA National Centers for Environmental Information (NCEI)
U.S. Billion-Dollar Weather and Climate Disasters (2022). https://www.ncdc.noaa.gov/billions/, DOI: 10.25921/stkw-7w73.
\31\ Ebi, K.L., J.M. Balbus, G. Luber, A. Bole, A. Crimmins, G.
Glass, S. Saha, M.M. Shimamoto, J. Trtanj, and J.L. White-Newsome,
2018: Human Health. In Impacts, Risks, and Adaptation in the United
States: Fourth National Climate Assessment, Volume II [Reidmiller,
D.R., C.W. Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis, T.K.
Maycock, and B.C. Stewart (eds.)]. U.S. Global Change Research
Program, Washington, DC, USA, pp. 539-571. doi: 10.7930/
NCA4.2018.CH14.
---------------------------------------------------------------------------
FHWA also reiterates the Agency's statements in the PM3 final rule
that several other provisions in Title 23, U.S.C., support FHWA's
proposal to address GHG emissions in this rulemaking:
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
performance-based approach to transportation decision-making to support
the national goals described in section 150(b) of this title . . .''.
FHWA reaffirms that these Title 23, U.S.C., provisions make it
clear that assessing infrastructure performance under 23 U.S.C.
150(c)(3) properly encompasses assessment of environmental performance,
including GHG emissions and other climate-related matters. As noted in
FHWA's May 2018 repeal of the 2017 GHG measure, nothing in the statute
specifically requires FHWA to adopt a GHG emissions measure. 83 FR
24923. However, consistent with all of the statutory provisions cited
above, no provision of law prohibits FHWA from adopting a GHG emissions
measure.
Third, FHWA's decision to adopt the GHG measure under 23 U.S.C.
150(c)(3) does not conflict with the on-road mobile source emissions
provision in 23 U.S.C. 150(c)(5). Section 150(c)(5), Title 23, U.S.C.,
requires that the Secretary establish performance measures for the
purposes to carrying out the CMAQ Program under 23 U.S.C. 149. FHWA has
established performance measures pursuant to 23 U.S.C. 150(c)(5) to
assess traffic congestion and on-road mobile source emissions under 23
CFR 490.701 through 490.811. In the May 2018 repeal final rule, FHWA
stated its belief that because Congress specifically designated a part
of 23 U.S.C. 150(c) for on-road mobile source emissions measures, it is
reasonable to conclude that Congress did not intend the other parts of
23 U.S.C. 150(c) to be used to address other similar or related
performance measures, such as the GHG measure, and that by placing the
on-road mobile source emissions provision in 23 U.S.C. 150(c)(5),
Congress limited the types of emissions that could be the subject of a
performance measure to those listed in the CMAQ statute. 83 FR 23924.
FHWA has reexamined this reasoning and has determined that 23 U.S.C.
150(c)(5) is consistent with FHWA's proposal to adopt performance
measures related to emissions if they support the achievement of the
national performance goals.
Under 23 U.S.C. 150(c), Congress requires FHWA to establish
performance measures for a number of programs, including the CMAQ
Program under 23 U.S.C. 149. This language indicates congressional
intent that FHWA establish a performance measure for on-road mobile
source emissions for the purposes of carrying out the CMAQ Program.
However, nothing in 23 U.S.C. 150 limits measures that take into
account emissions only to measures established for the purposes of
carrying out the CMAQ Program. FHWA is proposing that it is appropriate
to examine relevant emissions as part of assessing performance of the
Interstate and non-Interstate NHS in support of the NHPP.
[[Page 42410]]
Notably, Congress's inclusion of a specific CMAQ measure indicates
that Congress was contemplating CMAQ and its coverage in terms of
geography and types of emissions when drafting 23 U.S.C. 150. Since
Congress did not expressly limit emissions measures to those related to
CMAQ, it is reasonable to conclude that Congress intended FHWA to
retain the discretion to adopt other emissions measures, such as the
GHG measure.
In addition, the measures described in 23 U.S.C. 150(c) inherently
include overlapping topics. For example, freight movement in 23 U.S.C.
150(c)(6) (see also 23 CFR part 490, subpart F) clearly involves
congestion reduction or management, but CMAQ measures under 23 U.S.C.
150(c)(5) do not foreclose a congestion-related measure. Therefore, the
best interpretation of 23 U.S.C. 150 contemplates measures that may
overlap to achieve the national goals.
For all of these reasons, upon reexamination of FHWA's repeal of
the 2017 GHG measure, FHWA asserts the proposed measure is consistent
FHWA's authority under 23 U.S.C. 150(c).
C. Additional Rationale for the Proposed GHG Measure
FHWA is proposing to establish a GHG emissions measure for
environmental performance in accordance with 23 U.S.C. 150(c)(3). This
measure will incorporate an important environmental aspect of system
performance into the set of national performance measures and support
the national transportation goal of environmental sustainability in the
Federal-aid highway program and the national performance management
program established in 23 U.S.C. 150. FHWA has previously identified
that a GHG performance measure will help address transportation GHG
emissions. In the 2017 PM3 final rule, FHWA noted that reducing GHG
emissions involves strategies to reduce the growth in future travel
activity, such as the shift of travel to public transportation and non-
motorized options, and improve system efficiency, such as optimizing
the operation, use, and maintenance of transportation networks. The PM3
final rule noted that these activities are influenced by the planning
activities and investment decisions of State DOTs and MPOs. 82 FR 8997.
FHWA is reasserting that establishing a GHG measure in FHWA's
Transportation Performance Management Program would help implement a
national policy to reduce GHG emissions. As discussed in Section III(A)
of this NPRM, the GHG performance measure would provide a consistent
basis for estimating on-road GHG emissions and would aid States and
MPOs in planning GHG emissions reductions and evaluating progress
toward national, State, and local GHG goals. In addition, establishing
a GHG measure also would inform the future investment decisions of the
Federal Government, State DOTs, and MPOs towards achieving their
targets or goals.
As discussed in Section III(A) of this NPRM, FHWA anticipates this
measure will assist with comprehensive transportation planning. Current
performance measures are integrated into the planning process and used
to track progress and attainment of critical outcomes of the goals. 23
U.S.C. 135(d)(2) and 23 U.S.C. 134(h)(2). Establishment of the GHG
emissions performance measure aligns with current requirements, goals,
and processes under the planning requirements. Through these processes,
the GHG performance measure would advance the Federal-aid highway
program's national goal for environmental sustainability identified
under 23 U.S.C. 150(b)(6). In addition, transportation investments
advanced to achieve GHG performance measure targets can have co-
benefits that would assist States and MPOs make progress towards other
performance measures listed in 23 U.S.C. 119(d)(1)(A). For instance,
the construction of a new grade-separated transit facility has the
potential to reduce travel on neighboring roadways, which in turn would
reduce congestion, improve safety, and reduce criteria pollutant
emissions in addition to reducing on-road GHG emissions.
FHWA acknowledges that in proposing to establish this measure, FHWA
would be largely reestablishing the measure repealed in 2018. 83 FR
24920. FHWA expects that States and MPOs have no reliance interests
resulting from the repeal or, for that matter, from the 2017 GHG
measure. FHWA repealed the 2017 GHG measure before the respective due
dates for target setting or reporting, and FHWA assumes that no State
DOTs or MPOs incurred any costs due to the promulgation and prompt
repeal of that measure. Nor did the repeal itself impose any compliance
costs on State DOTs or MPOs. Accordingly, FHWA does not expect this
proposed rule to result in any increased burden on State DOTs or MPOs
by virtue of the fact that FHWA previously established a similar
measure that was repealed before any State DOTs or MPOs relied on and
implemented its target setting and reporting requirements. The proposed
measure would be a new one. As a result, FHWA expects that States or
MPOs would not have any reliance interests based on the repeal of the
2017 GHG measure. Moreover, it is FHWA's policy judgment that
implementation of the proposed GHG measure, which would advance the
national policy objectives stated in section 1 of E.O. 13990 and E.O.
14008 and the Department's strategic goal of reducing GHG emissions
from transportation and would increase accountability through reporting
requirements, would outweigh any minimal reliance interests, to the
extent they exist.
1. Costs and Benefits
The May 2018 repeal final rule determined that ``the measure
imposes unnecessary regulatory burdens on State DOTs and MPOs with no
predictable benefits,'' and stated that ``FHWA does not believe the
speculative and uncertain benefits are a sufficient reason to retain
the GHG measure, especially given the very definite costs associated
with the measure.'' 83 FR 24924-25. FHWA previously noted that since
benefits that may possibly flow from the GHG measure came from its
potential to influence State DOT and MPO investment decisions, and it
is not possible to conclude with certainty the GHG measure would cause
State DOTs and MPOs to make decisions that change 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
[[Page 42411]]
reduced) by a series of actions, including actions taken under the
Federal-aid highway program. Policies to reduce GHG pollution from
transportation align with environmental performance and are essential
to minimize the impacts from climate change discussed in the Fourth
National Climate Assessment, which include sea level rise and increased
frequency and severity of heat waves and heavy precipitation, coastal
flooding, wildfires, and other extreme events.\32\
---------------------------------------------------------------------------
\32\ See U.S. GCRP 2017 Climate Science Special Report, at 12-
34.
---------------------------------------------------------------------------
As stated in section 101 of E.O. 14008, U.S. engagement to address
the climate crisis is both necessary and urgent to avoid ``a dangerous,
potentially catastrophic, climate trajectory.'' Significant short-term
global reductions in GHG emissions and net-zero global emissions by
2050 or before will be important. 86 FR 7619.
Achieving 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\
---------------------------------------------------------------------------
\33\ A Performance-Based Approach to Addressing Greenhouse Gas
Emissions through Transportation Planning, FHWA 2013, available at
https://www.fhwa.dot.gov/environment/sustainability/energy/publications/ghg_planning/ghg_planning.pdf.
---------------------------------------------------------------------------
The proposed GHG measure aligns with the national goal of reducing
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 mid-performance
periods of 2024 and 2028. The reduction in estimated labor hours from
this revised assumption is partly offset by additional estimated labor
hours that would be required to address the new requirement for joint
urbanized area targets.
---------------------------------------------------------------------------
\34\ A loaded wage rate reflects an annual salary, including
benefits, that is converted to an hourly wage rate.
---------------------------------------------------------------------------
2. Duplication of Efforts
The 2018 repeal final rule evaluated whether the 2017 GHG measure
was potentially duplicative of other government efforts, both at the
Federal and State level, based on direction from previously applicable
E.O.s to reduce regulatory costs and burdens.\35\ FHWA concluded at
that time that the data needed to support the 2017 GHG measure was at
least somewhat duplicative of the EPA and DOE data on 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.
---------------------------------------------------------------------------
\35\ See E.O. 13771, ``Reducing Regulation and Controlling
Regulatory Costs,'' E.O. 13777, ``Enforcing the Regulatory Reform
Agenda,'' E.O. 13783, ``Promoting Energy Independence and Economic
Growth.''
\36\ E.O. 13990, ``Executive Order on Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate
Crisis,'' section 1; see E.O. 13992, ``Revocation of Certain
Executive Orders Concerning Federal Regulation'' (revoking E.O.
13771 and E.O. 13777).
---------------------------------------------------------------------------
Specifically, the 2018 repeal final rule identified that several
States and MPOs were already tracking 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
performance-based approaches related to GHG emissions, with three
States reporting the implementation of quantitative measures with
reduction targets, and one reporting the implementation of quantitative
measures without a reduction target (Question 5). Similarly, four
States indicated that they have developed an inventory and/or forecast
specifically to support performance metrics (Question 4). Therefore,
FHWA now concludes that the proposed GHG measure would not be
duplicative of existing efforts as the majority of State DOTs are not
currently tracking and addressing GHG emissions.
---------------------------------------------------------------------------
\37\ National Cooperative Highway Research Program (NCHRP)
Report 25-56, Methods for State DOTs to Reduce Greenhouse Gas
Emissions from the Transportation Sector. Currently under pre-
publication review by the Transportation Research Board.
---------------------------------------------------------------------------
In addition, the 2018 repeal final rule asserted that other Federal
agencies, such as the EPA and the DOE, had undertaken regulatory and
other efforts to address CO2 emissions, including the annual
DOE publication of State-by-State 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
[[Page 42412]]
measure would provide State DOTs with valuable information that is not
already covered by other Federal agencies. Data published by DOE and
the EPA do not specifically cover the NHS. In addition, while the 2018
repeal final rule identified that DOE publishes State-level
CO2 estimates for the transportation sector, this data is
not disaggregated to reflect CO2 emissions from on-road
mobile sources. Sector-level 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-of-Government approach
to the climate crisis as described in E.O. 14008.
D. Establishing Targets and Schedule for Implementation
The 2017 rule did not include any language about how the State DOTs
and MPOs were to establish GHG performance targets. Since that time,
however, the United States has committed to achieving net-zero GHG
emissions by 2050 and established an aggressive national goal of
reducing 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 net-
zero emissions, or that achieve aggressive early GHG emissions
reductions, or be more gradual at first and become more aggressive
later. When setting targets, a State DOT also could draw on any
relevant work by State environmental agencies or other State bodies.
FHWA is not proposing to prescribe what declining targets would look
like in each State. However, the States should be able to demonstrate
how their targets fit into a longer timeframe of emissions reductions
that will reach the national GHG goals for 2030 and 2050.
In addition, FHWA is proposing to require that MPOs establish a
single joint target for each urbanized area that contains NHS mileage
and that is overlapped by the boundaries of two or more metropolitan
planning areas. This requirement would help ensure a coordinated
approach to GHG emission reductions in areas where multiple MPOs serve
a single urbanized area. For example, the urbanized area for Boston,
Massachusetts-New Hampshire-Rhode Island is overlapped by 11 MPOs, and
the urbanized area for Tampa-St Petersburg, Florida, is overlapped by 4
MPOs. Coordinated systems and region-based approaches to reduce GHG
emissions are intended to ensure the collaboration necessary to achieve
meaningful reductions in GHG emissions. FHWA has not proposed joint
targets with State DOTs because State DOTs and MPOs are already
required to coordinate on the establishment of targets to the maximum
extent practicable. 23 CFR 450.206(c) and 450.306(d)(2)(ii); see also
23 CFR 490.105(f)(2). As discussed in Part V of this preamble, FHWA is
seeking comment on the efficacy of the proposed approach and how it
could best be implemented.
As the recent IPCC report emphasizes, time is of the essence in
addressing GHG emissions, including those from the transportation
sector. FHWA also anticipates that States should have adequate time to
establish targets for the proposed GHG measure before targets are
reported in the State Biennial Performance Report due to FHWA by
October 1, 2022. This expedited schedule is proposed to allow this new
measure to be in place at the start of TPM's 4-year reporting period,
represented by the baseline performance period report due by October 1,
2022. FHWA recognizes that it is possible the due date to report State
DOT initial targets for the proposed GHG measure may need to be
adjusted. FHWA requests comment on what the due date should be in the
event a final rule is not effective in advance of the October 1, 2022,
reporting date. As stated elsewhere in this proposal, FHWA also will
consider public comments to establish a GHG measure for States and MPOs
in a final rule based on this proposed rule.
For the proposed measure, State DOTs would be required to establish
2- and 4-year targets, and report on progress biennially. MPOs would be
required to establish 4-year targets for their metropolitan planning
area. MPOs would establish additional 4-year targets for select
urbanized areas. MPOs would report progress toward the achievement of
targets every 4 years to the State DOT in a manner that is documented
and mutually agreed upon. Pursuant to 23 U.S.C. 135(d)(2)(B)(i)(II),
the proposed measure would be subject to 23 CFR 490.105(e)(2), which
requires State DOTs to coordinate with relevant MPOs to establish
targets, to the maximum extent practicable. The coordination would be
accomplished in accordance with the transportation planning process set
forth in 23 CFR part 450. FHWA recognizes the need for State DOTs and
MPOs to have a shared vision on expectations for future condition/
performance and target establishment process, one that is consistent
with national, State, and local policies and targets for total GHG
emission reductions.
IV. Section-by-Section Discussion of the Proposed Changes
FHWA proposes changes to two subparts of 23 CFR part 490: Subpart
A--General Information, which applies to all of the regulations
throughout part 490; and Subpart E--National Performance Management
Measures to Assess Performance of the National Highway System, where
FHWA proposes to locate the GHG measure. This section of the preamble
describes the proposed changes and the reasons behind them. The
proposed rule would apply to the 50 States, the District of Columbia,
and Puerto Rico consistent with the definition of the term ``State'' in
23 U.S.C. 101(a). FHWA also invites comments on the proposed changes
and identifies areas where comments may be particularly useful in
facilitating implementation of the GHG measure.
Subpart A--General Information
Section 490.101 Definitions
FHWA proposes to amend Sec. 490.101 by adding a new definition of
the term Fuels and Financial Analysis System-Highways (FUELS/FASH) for
purposes of part 490. The term refers to FHWA's system of record for
motor fuel, highway program funding, licensed drivers, and registered
vehicles data. The FUELS/
[[Page 42413]]
FASH system is used to facilitate the collection, validation, review,
analysis, and finalization of data reported by State agencies.
Currently, FHWA uses the FUELS/FASH data to respond to legislative
requests or prepare reports to the Congress; analyze existing and
proposed Federal-aid funding methods and levels and the assignment of
user cost responsibility; maintain a critical information base on fuel
availability, use, and revenues generated; and calculate apportionment
factors. The system is used to facilitate the collection, validation,
review, analysis, and finalization of data reported by State agencies
on an annual or monthly basis. Including the definition in Sec.
490.101 is consistent with the inclusion in this section of definitions
of other systems and databases used in performance management
reporting, including Highway Performance Monitoring System (HPMS) and
National Bridge Inventory (NBI).
Section 490.105 Establishment of Performance Targets
FHWA proposes to add five new paragraphs to Sec. 490.105 regarding
the establishment of performance targets and proposes adjustments to
five existing paragraphs due to the proposed GHG measure. First,
proposed new Sec. 490.105(c)(5) would add a reference to proposed
Sec. 490.507(b) for the GHG performance measure to the existing list
of applicable performance measures for State DOTs and MPOs that
include, within their respective geographic boundaries, any portion of
the applicable transportation network (i.e., for the GHG measure, all
mainline highways on the Interstate and non-Interstate NHS). Second,
proposed changes would affect the target scope provisions of Sec.
490.105(d). Proposed new Sec. 490.105(d)(1)(v) would require that
State DOTs and MPOs establish statewide and metropolitan planning area
wide targets, respectively, that represent the condition/performance of
the NHS as specified in proposed Sec. 490.503(a)(2) for the GHG
measure for the NHS specified in proposed Sec. 490.507(b). Proposed
new Sec. 490.105(d)(4) would require that certain MPOs also establish
joint targets for the GHG measure for select urbanized areas specified
in proposed new Sec. 490.105(f)(10). Additionally, FHWA proposes to
revise the introductory text of Sec. 490.105(d) to include the scope
of urbanized areas, consistent with proposed Sec. 490.105(d)(4). In
Part V of this preamble, FHWA encourages submission of comments on the
type of target setting requirements that would best help MPOs improve
the environmental performance of their transportation systems with
respect to GHG emissions.
Furthermore, FHWA proposes changes to Sec. 490.105(e) regarding
the establishment of targets. FHWA proposes to revise existing Sec.
490.105(e)(1), which addresses the schedule by which States are
required to establish performance targets. The proposed revisions would
clarify that State DOTs are required to establish initial targets for
the GHG measure identified in proposed Sec. 490.507(b) no later than
October 1, 2022. The structure of the paragraph also would change to
clarify the distinct deadline for performance targets for the GHG
measure.
In addition, the proposed revisions would clarify the existing
requirement that State DOTs were to establish initial targets for all
other performance measures no later than February 20, 2018, by
correcting the date to May 20, 2018. Under 23 U.S.C. 150(d)(1), State
DOTs are required to establish such targets not later than one year
after the promulgation of FHWA's final rule establishing performance
measures. As discussed previously, FHWA promulgated the PM3 final rule
establishing NHPP performance measures on January 18, 2017 (82 FR
5970), with an effective date of February 17, 2017. That effective date
corresponds to the February 20, 2018, deadline for target establishment
in the current regulations. However, FHWA later delayed the effective
date of the PM3 final rule until May 20, 2017 (82 FR 14438), which
corresponds to an initial date of May 20, 2018, for establishing
targets for NHPP performance measures other than the proposed GHG
measure. The proposed rule would codify the May 20, 2018, date in Sec.
490.105(e)(1) for accuracy, even though the date has passed.
FHWA proposes to require that State DOTs establish initial targets
for the GHG measure no later than October 1, 2022, to facilitate
implementation of the GHG measure on the same schedule as the other
NHPP performance measures. The proposed initial target establishment
date is expected to synchronize this new GHG measure with the reporting
cycle in part 490 for NHPP measures. FHWA believes that such a schedule
will increase the potential for efficiencies and ease administrative
efforts on the part of State DOTs and MPOs. FHWA anticipates that State
DOTs would be able to establish targets to be reported in the State
DOT's Biennial Performance Report due to FHWA by October 1, 2022.
However, the proposed GHG measure is important to advancing the
national policies discussed in the ``Statement of the Problem, Legal
Authority, and Rationale'' section of this preamble to confront the
climate crisis. FHWA encourages State DOTs to consider preparing for
implementation of the proposed GHG measure to help advance those
national policies.
Proposed new Sec. 490.105(e)(10) would require declining targets
for reductions in tailpipe 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 Sec.
490.105(f)(1)(i) to include the requirement that the targets
established by an MPO for the GHG measure will also be declining
targets for reducing tailpipe CO2 emissions on the NHS.
FHWA also proposes revisions to Sec. 490.105(f) regarding MPO
establishment of targets. FHWA proposes to revise Sec. 490.105(f)(3)
to clarify that the existing target establishment options for MPOs
apply to the targets established for the metropolitan planning area.
Specifically, FHWA proposes to add language clarifying that the MPOs
shall establish targets ``for the metropolitan planning area'' by
either of the two options described. No other changes to Sec.
490.105(f)(3) are proposed, but the entire provision is included for
convenience. In Part V(A) of this preamble, FHWA encourages submission
of comments on the important issue of how targets established by State
DOTs and MPOs for reduced emissions might be implemented in order to
lead to improved environmental performance.
Proposed new Sec. 490.105(f)(10) would require that certain MPOs
establish joint targets for the GHG measure for select urbanized areas.
These targets would be in addition to the targets for the metropolitan
planning area required in Sec. 490.105(f)(1)(i). FHWA proposes that
when an urbanized area that contains mainline highways on the
Interstate or non-Interstate NHS, and any portion of that urbanized
area is overlapped by the metropolitan planning area boundaries of two
or more MPOs, those MPOs would need to coordinate to establish a
single, joint target for that urbanized area. FHWA proposes to require
a joint target for select urbanized areas in recognition of the
importance of all MPOs that serve the same urbanized area working
together regionally to solve common transportation problems in order to
address GHG emissions.
FHWA proposes in Sec. 490.105(f)(10)(i) that NHS designations and
urbanized
[[Page 42414]]
areas shall be determined from the data, contained in HPMS, one year
before the State DOT Baseline Performance Period Report is due to FHWA.
This is consistent with existing requirements in Sec.
490.105(f)(5)(iii)(E) and would not add additional burden. FHWA
proposes to specify in Sec. 490.105(f)(10)(ii) that only one target
shall be established for the entire urbanized area regardless of
roadway ownership and that each MPO shall report the joint target for
the urbanized area. In Sec. 490.105(f)(10)(iii), FHWA proposes that
any joint target established for an urbanized area would be a
quantifiable target. This is different than the existing options in
Sec. 490.105(f)(3) that allow MPOs to agree to plan and program
projects so that they contribute toward the accomplishment of the
relevant State DOT target. For the MPOs' joint urbanized area targets,
MPOs would need to establish a quantifiable value for the joint target.
Under the proposed rule, that value could be the same as the State
DOT's target. MPOs would not be required to adjust their joint target
if the State DOT adjusts its target.
Section 490.107 Reporting on Performance Targets
The proposed GHG measure would be subject to the biennial reporting
requirements in Sec. 490.107, which includes reporting targets and
performance. Proposed Sec. 490.107 would revise existing regulations
governing biennial performance period progress reporting to provide the
date for State DOTs to submit initial reports to FHWA that contain the
GHG measure information, and would add references to the GHG measure
identified in Sec. 490.507(b). Proposed Sec. 490.107 would add metric
reporting requirements as part of the biennial reports State DOTs
submit to FHWA that would be unique to the GHG measure. In addition,
proposed Sec. 490.107 would add that MPOs report to the State DOT
their metric calculation method, along with the calculation of tailpipe
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 Sec. 490.107(b)(1) would update the existing
requirement that State DOTs submit their first Baseline Performance
Period Report (Baseline PPR) to FHWA by October 1, 2018, by providing
that for the GHG measure, State DOTs are required to submit their first
Baseline PPR containing information for the proposed GHG measure by
October 1, 2022. This provision also would require State DOTs to submit
subsequent Baseline PPRs to FHWA by October 1 every 4 years thereafter,
which is consistent with other measures in 23 CFR part 490. FHWA
proposes corresponding revisions to Sec. 490.107(b)(2) and (3) to
provide the first time information for the GHG measure would be
included in the Mid Performance Period Progress Report (Mid PPPR) would
be October 1, 2024, and October 1, 2026, for the Full Performance
Period Progress Report (Full PPPR). These additions would fold
performance reporting for the proposed GHG measure into the existing
reporting requirement and schedule for other performance measures in 23
CFR part 490.
Proposed new Sec. 490.107(b)(1)(ii)(H) would revise the existing
regulations governing the content of Baseline PPRs to include a
requirement that the State DOT report the GHG metric for the GHG
measure and tailpipe 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 Sec. 490.107(b)(2) would amend the existing regulations
governing Mid PPPRs to provide the schedule for State DOTs to submit
the first such reports to FHWA for the proposed GHG measure and to
include information pertaining to the proposed GHG measure in the
required content of such reports. First, proposed revisions to the
second sentence of Sec. 490.107(b)(2)(i) would update the existing
requirement that State DOTs submit their first Mid PPPR to FHWA by
October 1, 2020, to require that the first Mid PPPR containing the
proposed GHG measure information be submitted to FHWA by October 1,
2024. This provision also would require State DOTs to submit subsequent
Mid PPPRs containing the proposed GHG measure information to FHWA by
October 1 every 4 years thereafter, which is consistent with other
measures in 23 CFR part 490.
Proposed new Sec. 490.107(b)(2)(ii)(J) would revise the
requirements for the content of Mid PPPRs to include the GHG metric for
the GHG measure and tailpipe 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 Sec. 490.107(b)(3) would amend the existing regulations
governing Full PPPRs to provide the schedule for State DOTs to submit
the first such reports to FHWA containing the proposed GHG measure and
to include information pertaining to the proposed GHG measure in the
required content of such reports. Proposed revisions to the second
sentence of Sec. 490.107(b)(3)(i) would update the existing schedule
requiring that State DOTs submit their first Full PPPR to FHWA by
October 1, 2022, to require that the first Full PPPR containing the
proposed GHG measure information be submitted to FHWA by October 1,
2026. This provision also would require State DOTs to submit subsequent
Full PPPRs containing the proposed GHG measure information to FHWA by
October 1 every 4 years thereafter, which is consistent with other
measures in part 490.
Proposed new Sec. 490.107(b)(3)(ii)(I) would revise the content
requirements for the Full PPPRs to include the GHG metric for the GHG
measure and tailpipe 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 Sec. 490.107(c)(1) would require
each MPO to report in the system performance report in the metropolitan
transportation plan, a description of its GHG metric calculation
method, described in Sec. 490.511(d), including the calculation of
tailpipe 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 Sec. 490.511.
[[Page 42415]]
Section 490.109 Assessing Significant Progress Toward Achieving the
Performance Targets for the National Highway Performance Program and
the National Highway Freight Program
FHWA proposes to amend Sec. 490.109 to update the sources of
information that FHWA will use to assess NHPP target achievement and
condition/performance progress for the GHG measure.\38\ First, FHWA
proposes to add new Sec. 490.109(d)(1)(v), to provide that FHWA will
extract data contained within FUELS/FASH on August 15 of the year in
which the significant progress determination is made. This data would
account for fuel use from the prior calendar year and the reference
year. FUELS/FASH is proposed as the source of this information because
it is a national, established, and validated data source for total fuel
use as reported annually to FHWA by the States, Washington, DC, and
Puerto Rico. FUELS/FASH is also the most accurate and up-to-date source
known for this sort of information.
---------------------------------------------------------------------------
\38\ FHWA regulations at 23 CFR 490.109 describe the method FHWA
uses to determine if State DOTs have achieved or have made
significant progress toward the achievement of their NHPP targets.
Under the existing regulation, progress toward the achievement of an
NHPP target would be considered ``significant'' when either of the
following occur: the actual condition/performance level is equal to
or better than the State DOT established target; or actual
condition/performance is better than the State DOT identified
baseline condition/performance. If a State DOT fails to achieve
significant progress, the State DOT must document in its next report
the actions it would take to achieve the targets.
---------------------------------------------------------------------------
FHWA desires to use national datasets in a consistent manner as a
basis for making its significant progress determinations. Thus,
consistent with existing Sec. 490.109(d), FHWA proposes to use
specific data sources that could be accessed by State DOTs and others
if they choose to replicate FHWA's determinations.
For consistency with existing requirements in part 490 that use
August 15 as the date data will be extracted, FHWA is proposing to
establish August 15 as the date on which FHWA will extract data from
the HPMS and FUELS/FASH related to the proposed GHG measure. Providing
a specific as-of-date related to the data used will create an incentive
to ensure the data is submitted correctly and accurate information is
available on that date. The August 15 date is considered the earliest
time data reasonably would be available in a national data source. This
proposed date considers the time State DOTs typically need to submit
the relevant data to HPMS and FUELS/FASH, to process raw data, and to
address missing or incorrect data that may be identified as a result of
quality assessments conducted by the State DOT or FHWA. The proposed
date also is necessary for FHWA to make the significant progress
determination for the proposed GHG measure in a timely manner.
FHWA additionally proposes to revise Sec. 490.109(d)(1)(vi), which
would provide that baseline condition/performance data contained in
FUELS/FASH, HPMS, and NBI of the year in which the Baseline PPR is due
to FHWA represents baseline conditions/performances for the performance
period for the measures in Sec. 490.105(c)(1) through (5).
Finally, FHWA proposes to add Sec. 490.109(d)(1)(vii) to indicate
that FHWA will extract data contained within the HPMS, on August 15 of
the year in which the significant progress determination is made. These
data would account for VMT from the prior calendar year and the
reference year.
FHWA proposes to add a new Sec. 490.109(e)(4)(iv) to specify that
in order for the FUELS/FASH data to be sufficient for FHWA's
significant progress determination, it must be cleared by August 15th.
The requirement for data submitted by a State DOT to be cleared prior
to use in the significant progress determination is consistent with the
requirements for other such data sets in 23 CFR part 490.
In addition, FHWA proposes to revise the existing regulations
governing performance achievement by adding Sec. 490.109(f)(1)(v) to
require that if significant progress is not made for the target
established for the GHG measure in Sec. 490.507(b), the State DOT must
document the actions it will take to achieve that target in its next
biennial report. This provision would apply the same approach to the
proposed GHG measure that the existing regulations use for other NHPP
performance measures.\39\
---------------------------------------------------------------------------
\39\ See 23 CFR 490.109 (regulations governing FHWA's assessment
of significant progress toward achieving NHPP performance targets,
among others). FHWA is not proposing specific penalties for failure
to achieve performance targets. Failure to comply with Federal
requirements, including requirements to set performance targets, may
be subject to penalties under 23 CFR 1.36.
---------------------------------------------------------------------------
Subpart E--National Performance Management Measures to Assess
Performance of the National Highway System
In addition, FHWA proposes to amend several sections of 23 CFR part
490, subpart E, to incorporate the GHG measure into existing
regulations on NHPP performance measures.
Section 490.503 Applicability
FHWA proposes to amend Sec. 490.503 by adding a new paragraph
(a)(2) providing that the GHG measure specified in Sec. 490.507(b) is
applicable to all mainline highways on the Interstate and non-
Interstate NHS. FHWA believes this applicability is appropriate because
the measure, which is limited to 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 Sec. 490.505 would add two new definitions to the
Definitions section of the National Performance Management Measures to
Assess Performance of the National Highway System. First, FHWA proposes
to define the term greenhouse gas (GHG) as any gas that absorbs
infrared radiation (traps heat) in the atmosphere. The proposed
definition further notes that 97 percent of on-road GHG emissions are
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.
---------------------------------------------------------------------------
\40\ See EPA Inventory of U.S. Greenhouse Gas Emissions and
Sinks, available at https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks-1990-2019.
---------------------------------------------------------------------------
Second, FHWA proposes to define the term reference year as calendar
year 2021 for the purpose of the GHG measure. As explained later in
this preamble, under the proposed rule, the reference year would be
used in calculating the GHG measure. FHWA proposes to use calendar year
2021 for the reference year for the GHG measure because it is the most
recent year for which data will be complete and available.
Section 490.507 National Performance Management Measures for System
Performance
FHWA proposes to revise the introductory text of Sec. 490.507 to
refer to ``three'' performance measures to assess the performance of
the Interstate System and the performance of the non-
[[Page 42416]]
Interstate NHS for purposes of carrying out the NHPP. The three
measures would include the proposed GHG measure in addition to the two
Travel Time Reliability measures in the existing regulations. In
addition, FHWA proposes to add a new Sec. 490.507(b) to describe the
GHG measure as the percent change in tailpipe 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 Sec. 490.505, the
reference year would be calendar year 2021.
Section 490.509 Data Requirements
FHWA proposes to revise Sec. 490.509 to add three new paragraphs
regarding the GHG measure. Proposed Sec. 490.509(f) would provide that
FHWA plans to post on the FHWA website the CO2 emissions
factors for each on-road fuel type. The emissions factors are needed to
calculate the GHG metric for the GHG measure in Sec. 490.105(c)(5).
FHWA would post this information in order to ensure that a consistent
factor is used by all DOTs and MPOs for each fuel type. For these
factors, FHWA is considering using information from EPA's MOVES \41\
model, Argonne National Laboratory's GREET \42\ model, 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.
---------------------------------------------------------------------------
\41\ Motor Vehicle Emissions Simulator.
\42\ Greenhouse Gases, Regulated Emissions, and Energy Use in
Technologies.
---------------------------------------------------------------------------
Proposed Sec. 490.509(g) would establish a data source for total
fuel use by fuel type, which is needed for the calculation of the GHG
measure, as described in Sec. 490.513. The proposed data source is
FHWA's FUELS/FASH system, which reports gallons of fuel used by State
across multiple fuel types.
Proposed Sec. 490.509(h) would require that VMT data used come
from HPMS. This data would include estimates of both NHS VMT and total
VMT developed from HPMS data available as of August 15 and would
represent the previous calendar year.
Section 490.511 Calculation of National Highway System Performance
Metrics
FHWA proposes to include in Sec. 490.511 new provisions for the
calculation of a ``GHG metric,'' the annual total tailpipe
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 Sec. 490.511(a)(2) would add a reference to the ``GHG
metric'' to the existing regulations that describe the performance
metrics that are required for the NHS performance measures specified in
Sec. 490.507. The proposed rule uses ``NHS'' to mean the mainline
highways of the NHS, consistent with the applicability of the measure
described in proposed Sec. 490.503(a)(2). The definition of the term
``mainline highways'' specifically excludes ramps, shoulders, turn
lanes, crossovers, rest areas, and other pavement surfaces that are not
part of the roadway normally traveled by through traffic. 23 CFR
490.101.
In addition, FHWA proposes to add a new Sec. 490.511(c) to require
that tailpipe 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 Sec. 490.511(d) to address the
expectations for MPOs in implementing the GHG measure. Proposed Sec.
490.511(d) would state that MPOs have additional flexibility, compared
to State DOTs, in how they calculate the GHG metric, since MPOs may
employ various models and data collection methods that can be used to
estimate CO2 emissions. Proposed Sec. 490.511(d) would
allow an MPO to use a range of approaches, including: the MPO share of
the State's VMT as a proxy for the MPO share of 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 Sec. 490.511(d)
would also allow an MPO to use another method if the MPO can
demonstrate to its State DOT that it has a technically valid and useful
approach to estimating CO2 emissions.
---------------------------------------------------------------------------
\43\ The California Air Resources Board (CARB) maintains the
EMission FACtor (EMFAC) model, which is approved by EPA for
developing on-road motor vehicle emission inventories and analyses
in California.
---------------------------------------------------------------------------
Finally, FHWA proposes Sec. 490.511(f) to require the reporting of
two related 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 Sec. 490.511(a)(2). The second of these is a
calculation of the metric itself. FHWA is proposing to require the
reporting of total tailpipe 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 Sec. 490.513, FHWA would add a new Sec.
490.513(d) to require computation of the GHG measure, specified in
proposed Sec. 490.507(b), to the nearest tenth of a percent according
to a formula that would be set forth in the regulation. The computation
would involve: (1) determining the difference between tailpipe
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
[[Page 42417]]
2021). As noted, the proposed rule uses ``NHS'' to mean the mainline
highways of the NHS, as defined in Sec. 490.101, consistent with the
applicability of the measure described in proposed Sec. 490.503(a)(2).
FHWA has provided an example of the metric and measure computation
in the rulemaking docket (Docket No. FHWA-2001-0004) and invites
comments on the proposed method.
V. Additional Requests for Comments
A. Establishing Targets That Lead to Improved Environmental Performance
The proposed measure is intended to support the national policy
established under section 1 of E.O. 13990 and E.O. 14008 and at the
Leaders Summit on Climate. This policy calls for GHG emissions
reductions of 50 to 52 percent below 2005 levels by 2030 and for the
U.S. to achieve net-zero emissions by 2050. FHWA encourages comments
that address whether the proposed measure would support those national
policies, the ways in which the proposed measure would do so or why it
would not, and whether the final rule should contain any other
provisions to better support those national policies.
FHWA is proposing to require declining targets for reducing
tailpipe 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 longer-term GHG reduction goals.
The 8- and 20-year improving targets established as part of the first
4-year performance period would indicate a reduction as compared to the
reference year, while subsequent 8- and 20-year targets would indicate
a reduction as compared to previous 8- and 20-year targets. These
targets could inform decision-making to support of longer-term GHG
reduction goals. FHWA also seeks comments on how these targets could
align with and inform existing transportation planning and programming
processes.
Additionally, FHWA invites comments on the following:
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 break-even 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 break-even analysis. The break-even estimates
are not intended justify the proposed rule, but are provided as context
to illustrate the magnitude of CO2
[[Page 42418]]
reductions required to equal estimated compliance costs. The RIA also
notes a range of potential benefits, including more informed decision-
making, more comprehensive performance and practices, greater
accountability and progress on national transportation goals.\44\
---------------------------------------------------------------------------
\44\ The potential benefits that may flow from the proposed GHG
measure stem from its potential to support more informed choices
about transportation investments and other policies to help achieve
net zero emissions economy-wide by 2050, including projects eligible
under the Carbon Reduction Program and the National Electric Vehicle
Infrastructure Program, both established under the Bipartisan
Infrastructure Law.
---------------------------------------------------------------------------
FHWA is seeking comment on assumptions that were developed as part
of the RIA, as well as information on other benefits or costs that
would result from implementation of the rule.
The RIA includes assumptions regarding the applicability,
level of effort and frequency of activities under proposed Sec. Sec.
490.105, 490.107, 490.109, 490.511, and 490.513. Are these assumptions
reasonable? Are there circumstances that may result in greater or
lesser burden relative to the RIA assumptions?
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 decision-making, greater
accountability, and progress on National Transportation Goals
identified in MAP-21? Would the proposed rule result in other benefits
or costs? Would the proposed measure change transportation investment
decisions and if so, in what ways? For State DOTs and MPOs that have
already implemented their own GHG measure(s), FHWA welcomes information
on the impact and effectiveness of their GHG emissions measure(s).
VI. Rulemaking Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and DOT
Regulatory Policies and Procedures
The Office of Management and Budget (OMB) has determined that the
proposed rule would be a significant regulatory action within the
meaning of E.O. 12866 because it may raise novel legal or policy issues
arising out of the President's priorities. However, it is anticipated
that the proposed rule would not be economically significant for
purposes of E.O. 12866. The proposed rule would not have an annual
effect on the economy of $100 million or more. The proposed rule would
not adversely affect in a material way the economy, any sector of the
economy, productivity, competition, or jobs. In addition, the proposed
changes would not interfere with any action taken or planned by another
agency and would not materially alter the budgetary impact of any
entitlements, grants, user fees, or loan programs. As described above,
FHWA estimates that total costs associated with this proposed rule
would be $11.0 million, discounted at 7 percent, and $12.9 million
discounted at 3 percent. While FHWA is unable to quantify the benefits
of the proposed rulemaking, FHWA describes the expected benefits
qualitatively in the preamble and the regulatory impact analysis. These
benefits include potentially significant reductions in GHG emissions
resulting from greater consideration of GHG emissions in transportation
planning, public awareness of GHG emissions trends, and better
information on the impact of transportation decisions on GHG emissions.
FHWA also performed a break-even analysis to analyze the relationship
between the costs and potential benefits of the proposed rule. The full
regulatory impact analysis is available in the docket.
B. Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FHWA has evaluated the effects of this proposed rule
on small entities and has determined that it is not anticipated to have
a significant economic impact on a substantial number of small
entities. The proposed rule would affect two types of entities: State
governments and MPOs. State governments are not included in the
definition of small entity set forth in 5 U.S.C. 601. The MPOs are
considered governmental jurisdictions, and to qualify as a small entity
they would need to serve fewer than 50,000 people. The MPOs are
designated to serve urbanized areas with populations of 50,000 or more.
See 23 U.S.C. 134(d)(1). Therefore, FHWA certifies that the proposed
rule will not have a significant economic impact on a substantial
number of small entities.
C. Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This proposed rule would not result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$168 million or more in any one year (2 U.S.C. 1532). In addition, the
definition of ``Federal Mandate'' in the Unfunded Mandates Reform Act
excludes financial assistance of the type in which State, local, or
Tribal governments have authority to adjust their participation in the
program in accordance with changes made in the program by the Federal
Government. The Federal-aid highway program permits this type of
flexibility.
D. Executive Order 13132 (Federalism Assessment)
This proposed rule has been analyzed in accordance with the
principles and criteria contained in E.O. 13132, and FHWA has
determined that this proposed rule would not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
FHWA also has determined that this proposed rule would not preempt any
State law or State regulation or affect the States' ability to
discharge traditional State governmental functions.
E. Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. FHWA has determined
that this proposal contains collection of information requirements for
the purposes of the PRA. This proposed rule introduces a GHG
performance measure that would be implemented as part of the
overarching TPM regulations in 23 CFR part 490, which includes State
DOT reporting on performance. The collection of biennial report
information in support of 23 CFR 490.107 is covered by OMB Control No.
2125-0656.
FHWA has analyzed this proposed rule under the PRA and has
determined the following:
[[Page 42419]]
Respondents: 52 State DOTs.
Frequency: Biennial reporting.
Estimated Average Burden per Response: Approximately 88 hours to
complete and submit the biennial report, or 44 hours annually.
Estimated Total Annual Burden Hours: Approximately 2,288 hours
annually.
In addition, MPO coordination and reporting activities are covered by
OMB Control No. 2132-0529, Metropolitan and Statewide and
Nonmetropolitan Transportation Planning. FHWA invites interested
persons to submit comments on any aspect of the information collection
in this NPRM. FHWA anticipates updating the burden estimates for the
applicable OMB control numbers to reflect the final rule.
F. National Environmental Policy Act
FHWA has analyzed this proposed rule pursuant to the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
has determined that it is categorically excluded under 23 CFR
771.117(c)(20), which applies to the promulgation of rules,
regulations, and directives. Categorically excluded actions meet the
criteria for categorical exclusions under the Council on Environmental
Quality regulations and under 23 CFR 771.117(a) and normally do not
require any further NEPA approvals by FHWA. This proposed rule would
establish in FHWA regulations a performance measure for on-road
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 non-Interstate NHS, which FHWA interprets to include
environmental performance. This measure applies to States that receive
Title 23 Federal-aid highway funds, and it would not have substantial
direct effects on one or more Indian Tribes, would not impose
substantial direct compliance costs on Indian Tribal governments, and
would not preempt Tribal laws. Accordingly, the funding and
consultation requirements of E.O. 13175 do not apply and a Tribal
summary impact statement is not required.
I. Executive Order 12898 (Environmental Justice)
E.O. 12898 requires that each Federal agency make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of its programs, policies, and
activities on minorities and low-income populations. FHWA has
determined that this proposed rule does not raise any environmental
justice issues.
J. Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 23 CFR Part 490
Bridges, Highway safety, Highways and roads, Reporting and
recordkeeping requirements.
Issued under authority delegated in 49 CFR 1.81 and 1.85.
Stephanie Pollack,
Deputy Administrator, Federal Highway Administration.
In consideration of the foregoing, FHWA proposes to amend title 23,
Code of Federal Regulations, part 490, as set forth below:
PART 490--NATIONAL PERFORMANCE MANAGEMENT MEASURES
0
1. The authority citation for part 490 continues to read as follows:
Authority: 23 U.S.C. 134, 135, 148(i) and 150; 49 CFR 1.85.
Subpart A--General Information
0
2. Amend Sec. 490.101 by adding the definitions of ``Fuels and
Financial Analysis System-Highways (FUELS/FASH)'' and ``Net-zero'' in
alphabetical order to read as follows:
Sec. 490.101 Definitions.
* * * * *
Fuels and Financial Analysis System-Highways (FUELS/FASH), as used
in this part, means the FHWA's system of record for motor fuel, highway
program funding, licensed drivers, and registered vehicles data.
* * * * *
Net-zero, as used in this part, means that human activities produce
no more greenhouse gases than they remove from the atmosphere.
* * * * *
0
3. Amend Sec. 490.105 by adding paragraph (c)(5), revising the
introductory text of paragraph (d), adding paragraphs (d)(1)(v) and
(d)(4), revising paragraph (e)(1), adding paragraph (e)(10), revising
paragraphs (f)(1)(i) and (f)(3), and adding paragraph (f)(10) to read
as follows:
Sec. 490.105 Establishment of performance targets.
* * * * *
(c) * * *
(5) 490.507(b) for the greenhouse gas (GHG) performance for the
NHS;
* * * * *
(d) Target scope. Targets established by State DOTs and MPOs shall,
regardless of ownership, represent the transportation network or
geographic area, including bridges that cross State borders, that are
applicable to the measures as specified in paragraphs (d)(1), (2), and
(4) of this section.
(1) * * *
(v) 490.503(a)(2) for the GHG measure specified in Sec.
490.507(b);
* * * * *
(4) MPOs shall establish targets for the GHG measure specified in
Sec. 490.507(b) that represent performance of the transportation
network specified in Sec. 490.503(a)(2), for urbanized areas meeting
the criteria specified in paragraph (f)(10) of this section.
(e) * * *
(1) Schedule. State DOTs shall establish targets not later than the
due dates provided in paragraphs (e)(1)(i) and (ii) of this section,
and for each performance period thereafter, in a manner that allows for
the time needed to meet the requirements specified in this section and
so that the final targets are submitted to FHWA by the due date
provided in Sec. 490.107(b).
(i) State DOTs shall establish initial targets not later than May
20, 2018, except as provided in paragraph (e)(1)(ii) of this section.
(ii) State DOTs shall establish initial targets for the GHG measure
identified in Sec. 490.507(b) not later than October 1, 2022.
* * * * *
(10) Targets for the GHG measure. Targets established for the GHG
measure in paragraph (c)(5) of this section shall
[[Page 42420]]
be declining targets for reducing tailpipe 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.
0
4. Amend Sec. 490.107 by revising the second sentence of paragraph
(b)(1)(i), adding paragraph (b)(1)(ii)(H), revising the second sentence
of paragraph (b)(2)(i), adding paragraph (b)(2)(ii)(J), revising the
second sentence of paragraph (b)(3)(i), and adding paragraph
(b)(3)(ii)(I), and adding a second sentence in paragraph (c)(2) to read
as follows:
Sec. 490.107 Reporting on performance targets.
* * * * *
(b) * * *
(1) * * *
(i) * * * State DOTs shall submit their first Baseline Performance
Period Report to FHWA by October 1, 2018, and subsequent Baseline
Performance Period Reports to FHWA by October 1st every 4 years
thereafter, except for the GHG measure specified in Sec.
490.105(c)(5), State DOTs shall submit their first Baseline Performance
Period Report to FHWA by October 1, 2022, and subsequent Baseline
Performance Period Reports to FHWA by October 1st every 4 years
thereafter.
(ii) * * *
(H) GHG metric for the GHG measure. Tailpipe CO2
emissions on the NHS, as described in Sec. 490.511(f), for the
reference year and the 2 calendar years preceding the Baseline
Performance Period Report, and tailpipe 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 Sec.
490.105(c)(5), State DOTs shall submit their first Mid Performance
Period Progress Report to FHWA by October 1, 2024, and subsequent Mid
Performance Period Progress Reports to FHWA by October 1st every 4
years thereafter.
(ii) * * *
(J) GHG metric for the GHG measure. Tailpipe CO2
emissions for the NHS and all public roads, as described in Sec.
490.511(f), for the 2 calendar years preceding the Mid Performance
Period Progress Report for the GHG measure in Sec. 490.105(c)(5).
* * * * *
(3) * * *
(i) * * * State DOTs shall submit their first Full Performance
Period Progress Report to FHWA by October 1, 2022, and subsequent Full
Performance Period Progress Reports to FHWA by October 1st every 4
years thereafter, except for the GHG measure specified in Sec.
490.105(c)(5), State DOTs shall submit their first Full Performance
Period Progress Report to FHWA by October 1, 2026, and subsequent Full
Performance Period Progress Reports to FHWA by October 1st every 4
years thereafter.
(ii) * * *
(I) GHG metric for the GHG measure. Tailpipe CO2
emissions for the NHS and all public roads, as described in Sec.
490.511(f), for the 2 calendar years preceding the Full Performance
Period Progress Report for the GHG measure in Sec. 490.105(c)(5).
(c) * * *
(2) * * * For the GHG measure in Sec. 490.105(c)(5), the MPO shall
report a description of its metric calculation method, as described in
Sec. 490.511(d), and the calculation of tailpipe CO2
emissions for the NHS and all public roads.
* * * * *
0
5. Amend Sec. 490.109 by:
0
a. Adding paragraph (d)(1)(v);
0
b. Revising paragraph (d)(1)(vi);
0
c. Adding paragraph (d)(1)(vii);
0
d. In paragraph (e)(4)(iv), removing the word ``or'';
0
e. In paragraph (e)(4)(v), removing the period at the end of the
paragraph and adding ``; or'' in its place; and
0
f. Adding paragraphs (e)(4)(vi) and (f)(1)(v).
The additions and revision read as follows:
Sec. 490.109 Assessing significant progress toward achieving the
performance targets for the National Highway Performance Program and
the National Highway Freight Program.
* * * * *
(d) * * *
(1) * * *
(v) Data contained within FUELS/FASH on August 15th of the year in
which the significant progress determination is made that represents
performance from the prior year and for the reference year for targets
established for the GHG measure in Sec. 490.105(c)(5);
(vi) Baseline condition/performance data contained in FUELS/FASH,
HPMS, and NBI of the year in which the Baseline Period Performance
Report is due to FHWA that represents baseline conditions/performances
for the performance period for the measures in Sec. 490.105(c)(1)
through (5); and
(vii) Data contained within the HPMS on August 15th of the year in
which the significant progress determination is made that represents
performance from the prior year and for the reference year for targets
established for the GHG measure specified in Sec. 490.105(c)(5).
* * * * *
(e) * * *
(4) * * *
[[Page 42421]]
(vi) A State DOT reported data are not cleared in the FUELS/FASH by
the data extraction date specified in paragraph (d)(1) of this section
for the GHG measure in Sec. 490.105(c)(5).
* * * * *
(f) * * *
(1) * * *
(v) If significant progress is not made for the target established
for the GHG measure in Sec. 490.105(c)(5), then the State DOT shall
document the actions it will take to achieve the target for the GHG
measure.
* * * * *
Subpart E--National Performance Management Measures to Assess
Performance of the National Highway System
0
6. Amend Sec. 490.503 by adding paragraph (a)(2) to read as follows:
Sec. 490.503 Applicability.
(a) * * *
(2) The greenhouse gas (GHG) measure in Sec. 490.507(b) is
applicable to all mainline highways on the Interstate and non-
Interstate NHS.
* * * * *
0
7. Amend Sec. 490.505 by adding the definitions ``Greenhouse gas
(GHG)'' and ``Reference year'' in alphabetical order to read as
follows:
Sec. 490.505 Definitions.
* * * * *
Greenhouse gas (GHG) is any gas that absorbs infrared radiation
(traps heat) in the atmosphere. Ninety-seven percent of on-road GHG
emissions are carbon dioxide (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.
* * * * *
0
8. Amend Sec. 490.507 by revising the introductory text and adding
paragraph (b) to read as follows:
Sec. 490.507 National performance management measures for system
performance.
There are three performance measures to assess the performance of
the Interstate System and the performance of the non-Interstate NHS for
the purpose of carrying out the National Highway Performance Program
(referred to collectively as the NHS Performance measures).
* * * * *
(b) One measure is used to assess GHG emissions, which is the
percent change in tailpipe CO2 emissions on the NHS compared
to the reference year (referred to as the GHG measure).
0
9. Amend Sec. 490.509 by adding paragraphs (f) through (h) to read as
follows:
Sec. 490.509 Data requirements.
* * * * *
(f) The FHWA will post on the FHWA website, no later than August
15th each year, the CO2 factor for each on-road fuel type
that will be used to calculate the GHG metric for the GHG measure in
Sec. 490.105(c)(5).
(g) Fuel sales information needed to calculate the fuel consumed
for the GHG measure in Sec. 490.507(b) shall:
(1) Represent the total number of gallons of fuel consumed by fuel
type; and
(2) Be based on fuels sales data for the previous calendar year,
and reported to FUELS/FASH.
(h) Annual total vehicle-miles traveled (VMT) needed to calculate
the GHG measure in Sec. 490.507(b) shall come from HPMS data as of
August 15, for the prior calendar year.
0
10. Amend Sec. 490.511 by adding paragraphs (a)(2), (c), (d), and (f)
to read as follows:
Sec. 490.511 Calculation of National Highway System performance
metrics.
(a) * * *
(2) Annual Total Tailpipe CO2 Emissions on the NHS for
the GHG measure in Sec. 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:
[GRAPHIC] [TIFF OMITTED] TP15JY22.012
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 Sec. 490.507(b), MPOs are
granted additional flexibility in how they calculate the GHG metric,
described in paragraph (a)(2) of this section. MPOs may use the MPO
share of the State's VMT as a proxy for the MPO share of 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.
---------------------------------------------------------------------------
\1\ MOVES (Motor Vehicle Emission Simulator) is EPA's emission
modeling system that estimates emissions for mobile sources at the
national, county, and project level for criteria air pollutants,
greenhouse gases, and air toxics. See https://www.epa.gov/moves. The
EMission FACtor (EMFAC) model is used in California for emissions
analysis.
---------------------------------------------------------------------------
* * * * *
(f) Tailpipe 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 Sec. 490.107,
and shall address the following time periods.
(1) The reference year, as required in Sec. 490.107(b)(1)(ii)(H);
and
(2) The 2 years preceding the reporting years, as required in Sec.
490.107(b)(1)(ii)(H), (b)(2)(ii)(J), and (b)(3)(ii)(I).
0
10. Amend Sec. 490.513 by adding paragraph (d) to read as follows:
Sec. 490.513 Calculation of National Highway System performance
measures.
* * * * *
(d) The GHG measure specified in Sec. 490.507(b) shall be computed
to the nearest tenth of a percent as follows:
[[Page 42422]]
[GRAPHIC] [TIFF OMITTED] TP15JY22.013
Where:
(Tailpipe 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