Final Performance Measure Rule Issued With Other “Midnight Rules”

January 18, 2017

The Federal Highway Administration published its final rule on the national performance measures for highways in the Federal Register this morning, making it official. The final rule, which can be read here, includes a controversial provision requiring states to measure greenhouse gas emissions on roads. This provision was not specifically authorized by Congress in the law. The rule will become final on February 17.

(ETW has covered this issue extensively. See our summary of the original proposed rule here, an op-ed in opposition to the GHG measure from Senator Inhofe here, an op-ed in support of the GHG measure here, and a letter from many highway stakeholder groups in opposition to the GHG measure here.)

The original proposed performance measures rule was published in the Federal Register on April 22, 2016. The final rule makes some significant changes from the proposed rule, including:

  • Removing the proposed NHFP measure for percentage of the Interstate congested.
  • Merging the proposed peak-hour travel time measure under NHPP with the proposed excessive delay measure under CMAQ Traffic Congestion into one measure under CMAQ, the PHED measure (Annual Hours of Peak-Hour Excessive Delay Per Capita). This new measure focuses on excessive delay experienced during peak hours in applicable urbanized areas.
  • Introducing two new measures in response to extensive public comments: 1. Under NHPP System Performance – a new measure to assess system performance, specifically the percent change in CO2 emissions from the reference year 2017, generated by on-road mobile sources on the NHS (the GHG measure). All State DOTs and MPOs that have NHS mileage in their State geographic boundaries and metropolitan planning areas, respectively, will be required to establish targets and report on progress. The FHWA will assess every 2 years to determine if a State DOT has made significant progress toward achieving their targets. 2. Under CMAQ Traffic Congestion – a new measure to assess modal share, specifically the Percent of Non-SOV Travel measure. State DOTs and MPOs are provided the opportunity to use localized surveys or measurements to report on this measure and will be encouraged to report to FHWA any data not currently available in national sources (e.g., bike counts).
  • Changing the weighting of the travel time measures from system miles to person- miles traveled, focusing on bus, auto, and truck occupancy levels, and providing opportunities for State DOTs and MPOs to capture more specific local occupancy levels for particular corridors or areas.
  • Phasing in expanded applicability of the CMAQ Traffic Congestion measures beginning with urbanized areas with a population over 1 million in the first performance period and expanding to urbanized areas with a population over 200,000 beginning in the second performance period. These measures are to carry out the CMAQ program; therefore, the areas will be limited to urbanized areas that contain any part of nonattainment or maintenance areas for one or more pollutants listed in 23 U.S.C. 149 (ozone, carbon monoxide, or particulate matter).

But the big news is the requirement that states measure annual CO2 emissions on the National Highway System. The requirement in the final rule was the same one discussed in the proposed rule.

The fact that the GHG measure is not specifically authorized by the statute (whether it is implicitly authorized there or elsewhere is anybody’s guess), means that the next Secretary of Transportation under the Trump Administration may be able to simply refuse to enforce that part of the rulemaking and ask for even more public comment on the specific legality of a GHG measure before repealing it.

Alternatively, Congress could nullify the final rule through the Congressional Review Act in the next few months. But if Congress does nullify the rule via the CRA, then after that, FHWA is forbidden by law from reissuing the entire rule “in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” This would jeopardize the performance measures which are currently authorized by law and have broad support, as well as the GHG measure.

The final rule was quietly posted on the FHWA website on January 10, but it was an open question until this morning whether or not the Federal Register would be able to post it before the Obama Administration expires. The Register has been working overtime in 2017 to print as many regulations as possible, because they are not legal until they appear in hard copy form.

As of today, there have been 11 issues of the Register published in 2017, totaling 5,744 pages (an average of 522 pages per issue). This is far more than normal – in 2016, the first 11 issues only totaled 2,966 pages, or a little more than half of the 2017 volume.

By comparison (and this is actually a pretty objective comparison), the Obama Administration is issuing significantly more last-minute rulemakings, by volume, than did the previous two Presidents who were being replaced by the opposition party. The George W. Bush Administration issued only 3,394 pages of the Register in the first 11 issues of January 2009, and the Clinton Administration issued 4,074 pages in the first 11 issues of January 2001.

Other transportation regulations issued in the last two weeks in the Register include FHWA’s condition measures for highways and bridges, FTA’s final national public transportation safety plan, FTA’s transit greenhouse gas emission estimation tool, and NHTSA’s vehicle-to-vehicle communication standards.


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