[Federal Register Volume 65, Number 62 (Thursday, March 30, 2000)]
[Notices]
[Pages 16997-17000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7855]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

Federal Transit Administration

[FHWA Docket No. FHWA-2000-6757]


Request for Comments on a High Speed Rail Proposal for the 
Congestion and Air Quality Improvement Program (CMAQ)

AGENCY: Federal Highway Administration (FHWA), Federal Transit 
Administration (FTA), DOT.

ACTION: Notice; request for comments.

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SUMMARY: This notice requests comments on the conditions under which 
high speed rail projects should be eligible for congestion mitigation 
and air quality improvement (CMAQ) funding. Eligibility under the CMAQ 
program has already been granted for high speed rail improvements 
located within air quality nonattainment and maintenance areas. At 
issue is if, and under what conditions, State Departments of 
Transportation (State DOTs) should be permitted to use the State's CMAQ 
allocation to fund high speed rail improvements located outside of 
nonattainment or maintenance areas. Several States have recently 
explored the possibility of using CMAQ funds for such projects 
prompting the need for this notice. Funding under the CMAQ program has 
generally been limited to expenditures within nonattainment and 
maintenance areas, and projects or programs located outside of such 
areas have not usually been eligible. However, it may be possible to 
realize emission reductions, the primary purpose of the CMAQ program, 
within nonattainment and maintenance areas even if the project is 
located outside of such areas. The FHWA and the FTA seek your input 
regarding whether, and under what conditions, these emission reductions 
might allow States to allocate CMAQ program funds for projects outside 
of nonattainment and maintenance areas to meet the statutory 
requirements and be eligible, and whether there are other 
considerations which make this proposition either more or less 
reasonable.

DATES: To assure consideration, comments on the high speed rail 
proposal for the CMAQ program must be received on or before May 1, 
2000.

ADDRESSES: Submit written, signed comments to the docket number that 
appears in the heading of this document to the Docket Clerk, U.S. DOT 
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-
0001. All comments received will be available for examination at the 
above address between 9 a.m. and 5 p.m., et., Monday through Friday, 
except Federal holidays. Those desiring notification of receipt of 
comments must include a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: For the FHWA program office: Mr. 
Michael J. Savonis, Office of Planning and Environment, (202) 366-2080; 
and for legal issues, Mr. Harold Aikens, Office of the Chief Counsel, 
(202) 366-0764. For the FTA program office: Mr. Abbe Marner, Office of 
Planning, (202) 366-4317; and for legal issues, Mr. Scott Biehl, Office 
of the Chief Counsel, (202) 366-0952. Office hours are from 8 a.m. to 
4:30 p.m., et., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users may access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours a day, 365 days each year. 
Please follow the instructions online for more information and help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page

[[Page 16998]]

at: http://www.nara.gov/fedreg and the Government Printing Office's 
database at: http://www.access.gpo.gov/nara.

Opportunity for Comment

    The FHWA and the FTA seek your input on whether, and under what 
conditions, States should be permitted to use CMAQ funds for projects, 
such as high speed rail, located outside of nonattainment or 
maintenance area boundaries, if they can demonstrate air quality 
benefits within the nonattainment or maintenance area.
    Several States have recently explored the possibility of using CMAQ 
funds for such projects prompting the need for this notice. Issues 
being considered include: (1) Should the project be required to 
demonstrate benefits ``primarily'' within the nonattainment or 
maintenance area boundary? (2) If the current policy is reasonable, 
what distance should constitute ``close proximity''?

Background

    This serves as a follow-up to a notice that was published on 
October 26, 1998 (63 FR 57154) where the FHWA and the FTA requested 
comments on the interim implementation guidance for the CMAQ program. 
Comments were requested by November 30, 1998. In addition, the FHWA and 
the FTA hosted five outreach forums across the country to provide an 
opportunity for those stakeholders and industry directly involved and 
affected by the program to also assist in developing the final guidance 
for the CMAQ program. Since the closing of that comment period of the 
October 26, 1998 notice, several States have requested permission from 
the FHWA and the FTA to use CMAQ funds for high speed rail projects, 
and some national organizations have expressed views in this area also. 
Because of this, the FHWA and the FTA have decided to solicit 
stakeholder input on this specific issue.
    The CMAQ program, established under the Intermodal Surface 
Transportation Efficiency Act of 1991 (ISTEA), Public Law 102-240, 105 
Stat. 1914, and reauthorized with some changes by section 1110 of the 
Transportation Equity Act for the 21st Century (TEA-21), Public Law 
105-178, 112 Stat. 107, 142, was designed to assist nonattainment and 
maintenance areas in attaining the National Ambient Air Quality 
Standards (NAAQS) by funding transportation projects and programs that 
will improve air quality.
    The primary purpose of the CMAQ program after reauthorization 
remains the same: to fund projects and programs which reduce 
transportation-related emissions in air quality nonattainment and 
maintenance areas. The CMAQ program is the only program under title 23, 
U.S.C., with funds dedicated to helping nonattainment and maintenance 
areas to achieve and maintain the NAAQS.

Current Policy

    Both the FHWA and the FTA have generally limited funding under the 
CMAQ program to projects in nonattainment and maintenance areas, and 
projects located outside of such areas have not usually been eligible. 
The rationale behind this approach is based on several considerations 
evaluated collectively. First, under 23 U.S.C. 149(b), a State may use 
CMAQ funds for a transportation project or program if it is ``for an 
area that is or was designated as a nonattainment area,'' and likely to 
contribute to the attainment of a national air quality standard or the 
maintenance of a national air quality standard. This plain language 
indicates that the primary focus of CMAQ funding is on assisting 
nonattainment and maintenance areas to achieve their air quality goals, 
rather than on assisting other parts of the country. Projects with 
emission benefits within those areas clearly meet the statutory test, 
while for projects located outside of those areas, some ambiguity is 
introduced.
    Second, the formula by which CMAQ funds are apportioned under 23 
U.S.C. 104(b)(2) is based solely on the population living in the 
States' nonattainment and maintenance areas and weighted by the 
severity of the pollution they face. Populations living outside of 
these areas are given no weight in the apportionment of CMAQ funds. 
Since funding is allocated on the basis of nonattainment and 
maintenance populations, the law sets up an expectation that funding 
will be targeted at projects that demonstrably benefit those areas. 
Again, the primary focus on nonattainment and maintenance areas is 
established.
    Third, the conference report (H.R. Conf. Rep. No. 104-345, at 88 
(1995)) to the National Highway System Designation Act of 1995, Public 
Law 104-5 109 Stat. 568, seems to contain language regarding 
congressional intent. The law specifically allowed the use of CMAQ 
funds in maintenance areas which had been left out of previous 
legislation. It states on page 88:

[A] State [may] use its funds apportioned under the CMAQ program in 
any such maintenance area, as well as in other nonattainment areas, 
within a State.

This provision uses the word, ``in,'' with respect to maintenance or 
nonattainment areas, instead of the legislative language in 23 U.S.C. 
149(b) which cites that CMAQ funds are to be used ``for'' nonattainment 
and maintenance areas.
    Finally, the transferability provisions in section 110(c) of title 
23, U.S.C., which were added in 1998, contain references to 
``geographic areas'' eligible for CMAQ funding. This section states 
that when national CMAQ authorizations exceed $1.35 billion, CMAQ funds 
may be used for other purposes than air quality improvement. But even 
then, ``any * * * [CMAQ] funds * * * transferred under this section may 
only be obligated in geographic areas eligible for the obligation of 
funds eligible under the * * * [CMAQ program].'' This provision appears 
to indicate in the first part that there are ``geographic areas'' 
(i.e., nonattainment and maintenance areas) to which CMAQ funding is 
directed, and in the second part that even when greater flexibility is 
allowed in the use of CMAQ funds, those funds must be used for projects 
within those geographic areas.
    Based on these considerations, the FHWA and the FTA have 
administered the program under a general policy that CMAQ funds should 
be used for projects in nonattainment and maintenance areas if there 
are any. Program guidance, however, was developed with one additional 
consideration in mind. Nonattainment (or maintenance) area boundaries 
do not always completely overlap metropolitan or urbanized area 
boundaries. As a result, on March 7, 1996, the FHWA and the FTA 
expanded the ability of States to fund certain projects by including 
the following provision in an updated, comprehensive CMAQ guidance: 
``Program funds may * * * not be used for projects which are outside of 
nonattainment and maintenance area boundaries * * * except in cases 
where the project is located in close proximity to the nonattainment or 
maintenance areas and the benefits will be realized primarily within 
the nonattainment or maintenance area boundaries.'' 61 FR 50890, 50897. 
The concern was the possibility that an otherwise eligible project 
could be located just outside of a nonattainment or maintenance area 
and might be ruled ineligible. An example of such a project could be a 
park and ride lot where vanpools form or a transit station where 
service extends into the central business district. For projects like 
these, it appears that the basic intent of the law was satisfied, and 
funding could be allowed. Before obligating funds to any project 
outside of the nonattainment

[[Page 16999]]

and maintenance area boundary, an air quality analysis is required.
    The 1996 policy quoted above is substantively unchanged in the 
current CMAQ guidance of the FHWA and the FTA, which was issued on 
April 28, 1999 (See FHWA web site: http://www.fhwa.dot.gov/environment/
cmaq--abs.htm).

High Speed Rail Projects

    Under current guidance, passenger rail, and in some cases freight 
rail, projects are eligible for CMAQ funding: (1) If they are located 
within, or within close proximity to, the nonattainment or maintenance 
area boundaries; (2) they can demonstrate an emission reduction; and 
(3) they meet the other criteria for CMAQ funding. CMAQ funds have 
already been used for a variety of freight and passenger rail services 
in New York, Ohio, Maine, and Illinois, to name a few.
    High speed rail service is a passenger transportation option that 
usually links well-populated metropolitan areas that could be as much 
as 100 to 500 miles apart. It usually has few station stops since more 
would increase travel times. The metropolitan areas that service such 
links may, or may not, be in nonattainment or maintenance area 
boundaries. Supporters of high speed rail point out that, as population 
and income growth spurs additional travel demand, it can provide a 
viable transportation option to move people between highly congested 
areas with beneficial air quality impacts. The basic concept is that 
such a service could replace automobile and air trips with train travel 
and that the net impact could be a reduction in total emissions when 
the emissions reduced are compared with the increase in emissions from 
the new train service.
    If a project to improve a high speed rail service is located within 
a nonattainment or maintenance area boundary, such as a station 
improvement regarding access or passenger amenities or a new station 
stop entirely, the eligibility (with regard to location) would not be 
in question. The project would, of course still have to meet the other 
eligibility criteria and title 23, U.S.C., requirements. Similarly, a 
high speed rail service may link two or more nonattainment (or 
maintenance) areas. If station stops occur in nonattainment or 
maintenance areas only, there may be justification for CMAQ funding 
since riders on that service must board in a nonattainment or 
maintenance area. Thus, the predominance of emission reductions will 
likely occur in those areas.
    On the other hand, the project could be located well outside of any 
nonattainment or maintenance area boundaries. These might include 
buying right-of-way or laying track between stations or constructing 
new station stops in cities not designated as nonattainment or 
maintenance. Such projects may provide access to or from nonattainment 
or maintenance areas, in some cases, and thus reduce some emissions in 
these areas. But, in this case, the questions are raised, ``to what 
extent are emissions reduced in these areas?'' And, ``does the project 
primarily produce benefits in the nonattainment or maintenance area?''
    Finally, there is the question of the purchase of locomotives and 
rolling stock which may operate both within and outside of the 
nonattainment area. Should equipment purchases be deemed eligible, or 
should eligibility be pro-rated based on miles operated within the 
nonattainment or maintenance area, or should these purchases be ruled 
ineligible? Other questions that might be considered include the 
eligibility of facilities located outside the area that support 
operations within the area, such as dispatching and maintenance 
facilities. The FHWA and the FTA solicit your input on all of the above 
issues.

Some Key Issues To Consider

    One of the most important issues regarding the eligibility of high 
speed rail projects outside of nonattainment and maintenance areas, is 
the rationale for funding this type of project in light of the CMAQ 
program's purpose: To assist attainment and maintenance of the NAAQS. 
Specifically, under what rationale could these projects be considered 
eligible for CMAQ funding, with respect to the factors discussed in the 
``Current Policy'' section of this notice. If a project located outside 
of a nonattainment or maintenance area can reduce emissions by even one 
gram per day, should it be eligible for CMAQ funding? Should it be 
eligible if 50 percent of all its emission reductions accrue to the 
nonattainment or maintenance area? Should that performance standard be 
95 percent, rather than 50 percent? Do the relative percentages matter, 
or should there be another performance standard that is based on a 
threshold level of emission reductions in the nonattainment or 
maintenance area above which the project is eligible? Does the cost of 
a project relative to expected emission reductions have a bearing? And 
finally, given the high data requirements and relatively rudimentary 
analytical methods that are currently in practice, can Federal, State, 
and local agencies discern with confidence what the actual emission 
reductions are both inside and outside of a nonattainment area?
    A second issue to consider is that, if high speed rail projects 
outside of nonattainment and maintenance areas are considered eligible, 
it will likely set a precedent for other types of projects that extend 
significantly beyond existing nonattainment area boundaries. Freeway 
surveillance and management using Intelligent Transportation Systems 
(ITS) technology in key corridors like I-95 is one such possibility, as 
is a statewide emission inspection and maintenance program. Freight 
rail projects to raise bridge elevations and allow for double stack 
containers, which could potentially reduce truck traffic and emissions, 
is yet another.
    A third issue to consider is the degree to which metropolitan areas 
participate in funding decisions under the CMAQ program. At the same 
time the CMAQ program was initially authorized in 1991 under the ISTEA, 
changes were introduced to the Federal-aid planning process that 
enhanced the role of metropolitan planning organizations (MPOs). By 
provided funding to many metropolitan areas, the CMAQ program has 
played a part in this. As noted in FHWA's publication, ``CMAQ Indirect 
Benefits,'' (1997) (FHWA-PD-97-045), ``CMAQ helped to bring 
transportation decision making to the local level.'' This has, in turn, 
assisted the funding flexibility that has been the hallmark of the CMAQ 
program. By allowing projects outside of nonattainment and maintenance 
areas, there is the potential to shift emphasis from a metropolitan 
focus to more of a Statewide program.
    Fourth, the regional nature of some pollutants and the local nature 
of others may be relevant. Ozone can be transported over hundreds of 
miles. And, an emission reduction in volatile organic compounds, a 
precursor of ozone, that is well outside of any nonattainment area 
boundary may have an impact on the ozone levels within the boundary. 
This must be balanced by the concern that diesel engines, such as those 
used in high speed rail (if not electrified), are significant emitters 
of oxides of nitrogen, the other precursor of ozone. Unlike ozone, 
carbon monoxide pollution is predominantly a local phenomenon due to 
the existence of ``hot spots'' of high concentration. Should the 
eligibility of a project outside of a nonattainment or maintenance area 
depend on the nature of the State's air pollution problems? 
Specifically, could a justification be made for reducing emissions 
outside of an ozone area (but not outside of a

[[Page 17000]]

carbon monoxide area) that lead to ozone reductions inside 
nonattainment and maintenance area boundaries? Similar concerns may 
exist for coarse particulate matter (PM-10) which may be more hot spot 
oriented and fine particulate matter (PM-2.5) which may exhibit the 
same transport phenomenon as ozone.
    Fifth, there is only a fixed amount of funds that are available for 
CMAQ projects in each State in each year. Any expansion of CMAQ 
eligibility to allow the expenditures for projects outside of 
nonattainment or maintenance areas will reduce the amount available in 
each State in each year. Any expansion of CMAQ eligibility to allow the 
expenditures for projects outside of nonattainment or maintenance areas 
will reduce the amount available in each State in each year. Any 
expansion of CMAQ eligibility to allow the expenditures for projects 
outside of nonattainment or maintenance areas will reduce the amount 
available for projects within such areas.
    Both the FHWA and the FTA invite interested parties to submit 
comments on all of the issues mentioned above.

    Authority: 23 U.S.C. 315; sec. 1110, Pub. L. 105-178, 112 Stat. 
107 (1999); 49 CFR 1.48 and 1.51.

    Issued on: March 24, 2000.
Walter L. Sutton, Jr.,
Acting Deputy Administrator,
Nuria I. Fernandez,
Acting Administrator.
[FR Doc. 00-7855 Filed 3-29-00; 8:45 am]
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