[Federal Register Volume 67, Number 11 (Wednesday, January 16, 2002)]
[Pages 2278-2281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1164]



Federal Highway Administration

Federal Transit Administration

[FHWA Docket No. FHWA-2000-6757]

High Speed Rail Projects for the Congestion Mitigation and Air 
Quality Improvement Program (CMAQ)

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

ACTION: Notice; final decision on CMAQ eligibility for high speed rail 


SUMMARY: This notice announces a decision regarding the eligibility of 
Congestion Mitigation and Air Quality Improvement (CMAQ) funds for 
projects outside nonattainment or maintenance area boundaries. A 
request for comments on this issue was published at 65 FR 16997 on 
March 30, 2000. Eligibility under the CMAQ program has already been 
granted for high speed rail improvements located within air quality 
nonattainment and maintenance areas. The issue raised by several States 
was if, and under what conditions, State departments of transportation 
(DOT) should be permitted to use their CMAQ allocations to fund high 
speed rail improvements located outside of nonattainment or maintenance 
areas. This notice summarizes the comments to the docket and addresses 
the key issues and concerns raised by respondents. In this notice, the 
FHWA and the FTA reaffirm the current policy which allows CMAQ funding 
for projects in close proximity to nonattainment and maintenance areas 
where it is determined that the air quality benefits will be realized 
primarily within such areas. Intercity rail lines, including high speed 
rail projects, compete equally with other types of projects under these 
criteria and have been funded under CMAQ in some places.

Daniel Wheeler, Office of Natural Environment, (202) 366-2204. For the 
FTA program office: Mr. Abbe Marner, Office of Planning, (202) 366-
4317. Office hours are from 8 a.m. to 4:30 p.m., e.t., Monday through 
Friday, except Federal holidays.


Electronic Access

    You may retrieve comments online through the Document Management 
System (DMS) at http://dmses.dot.gov/submit. The DMS in available 24 
hours each day, 365 days each year. Electronic retrieval help and 
guidelines are available under the help section of the web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and the Government 
Printing Office's web page at: http://www.access.gpo.gov/nara.


    The CMAQ program was established by the Intermodal Surface

[[Page 2279]]

Transportation Efficiency Act of 1991 (Pub. L. 102-240, 105 Stat. 1914) 
and reauthorized with some changes by the Transportation Equity Act for 
the 21st Century (TEA-21) in 1998 (Pub. L. 105-178, 112 Stat. 107). The 
primary purpose of the CMAQ program is to fund transportation projects 
that reduce air pollution emissions in areas designated by the U.S. 
Environmental Protection Agency (EPA) as nonattainment or maintenance 
with respect to a National Ambient Air Quality Standard (NAAQS).\1\ 
Program guidance was issued by the FHWA and the FTA on April 28, 1999. 
This guidance document was published at 65 FR 9040 on February 23, 

    \1\ States which have no designated nonattainment or maintenance 
areas receive a minimum apportionment of one-half of one percent of 
the national CMAQ funding. This money may be spent anywhere in the 
State for any project which would be eligible for funding under the 
Surface Transportation Program (STP) as well as for any CMAQ 
purpose. States whose apportionments based on their nonattainment 
and maintenance area populations are less than one-half of one 
percent receive additional funds to make up to the one-half percent 
minimum. These additional funds may also be spent anywhere in the 
State for any STP or CMAQ eligible purpose.

    The current CMAQ statutory language, which is codified in section 
149 of title 23 of the United States Code, requires that projects and 
programs proposed for CMAQ funding be for a designated area.\2\ The 
FHWA and the FTA have generally interpreted the statute to allow CMAQ 
funding for projects within nonattainment and maintenance areas, but 
the agencies' guidance allows funding for proposals that are in close 
proximity to designated areas where the air quality benefits are 
primarily realized in those areas. For example, a park-and-ride lot 
located at the edge of a metropolitan area may reduce the number of 
cars going into that area by the same amount whether it is located just 
inside the officially designated boundary or just outside of it. 
Another example is a commuter rail line with a segment located beyond 
the nonattainment area boundary.

    \2\ Specifically, 23 U.S.C. 149(b) provides: ``ELIGIBLE 
PROJECTS.--Except as provided in subsection (c), a State may 
obligate funds apportioned to it under section 104(b)(2) for the 
congestion mitigation and air quality improvement program only for a 
transportation project or program if the project or program is for 
an area in the State that is or was designated as a nonattainment 
area for ozone, carbon monoxide, or particulate matter under section 
107(d) of the Clean Air Act (42 U.S.C. 7407(d)) and classified 
pursuant to section 181(a), 186(a), 188(a), or 188(b) of the Clean 
Air Act (42 U.S.C. 7511(a), 7512(a), 7513(a), or 7513(b)) or is or 
was designated as a nonattainment area under such section 107(d) 
after December 31, 1997, and * * *.''

    The purpose of the current policy is to allow CMAQ eligibility for 
projects which serve a designated area by being very close to the area 
and whose emission reductions primarily benefit such areas, so long as 
those projects meet all of the statutory eligibility criteria of 23 
U.S.C. 149. The primary eligibility criterion is a reduction in 
transportation related emissions that will contribute to the attainment 
or maintenance of a NAAQS.
    Eligibility for high speed rail projects has already been 
established under the above policy. Several States have explored the 
possibility of using CMAQ funds to support high speed rail projects 
outside of nonattainment or maintenance areas on the basis that they 
would have benefits within designated areas only if an entire corridor 
were funded, including portions outside of such areas.
    The issue then is whether, and under what conditions, State DOTs 
should be permitted to use their States' CMAQ allocations to fund high 
speed rail improvements located outside of nonattainment or maintenance 
areas. To gather input from interested parties, the FHWA and the FTA 
published a request for comments at 65 FR 16997 on March 30, 2000.

Discussion of Comments

    A total of 39 comments were received. Twenty-one commenters opposed 
expansion of eligibility and believed the existing policy should remain 
intact. There were 18 who supported it, either conditionally or fully. 
Those who supported changing the policy stated that emissions 
reductions are the most important part of CMAQ eligibility, and 
therefore projects that reduce emissions should proceed. Those who 
proposed conditional support for the expansion felt that such projects 
may be eligible, but should be held to a higher standard, or have 
funding limitations or a separate funding source.
    A categorization of these comments is as follows: Seven 
metropolitan planning organizations (MPOs), five State DOTs, one State 
air agency, two cities, one private citizen and five associations 
opposed the expansion of existing policy. One State legislator, one 
MPO, three State DOTs, two railroads, one railroad development 
commission and five rail passenger associations supported changes. The 
five comments that expressed limited support, or support under certain 
conditions, were all from State DOTs.
    The comments were generally thoughtful, and many raised excellent 
points. However, no comments were received that persuaded us that the 
current policy on eligibility was unsound. Several issues were raised, 
however, that do merit further discussion and thereby provide an 
opportunity for further clarification and amplification of our current 
interpretation of the factors that serve as the basis for our position. 
The full set of comments can be reviewed by accessing: http://dms.dot.gov. The docket number is FHWA-2000-6757.
    Those who did not support the expanded eligibility argued that it 
conflicts with legislative language and intent that they claim 
precludes funding for projects outside of nonattainment and maintenance 
areas. One group commented that ``Congress * * * (in) * * * TEA-21 
specifically directed CMAQ allocations to be used by States to fund 
projects that reduce transportation-related emissions in air quality 
nonattainment areas. * * * proposal(s) to fund projects outside of 
these areas are not in compliance with the law's intent * * *.''
    Other commenters took issue with the flexibility that currently 
exists in the guidance. Several of those opposed to expansion expressed 
concern that even allowing eligibility for projects in close proximity 
to the nonattainment or maintenance area does not go far enough in 
ensuring that air pollution will be reduced in the area. One stated, 
``The ability to demonstrate air quality benefits for high speed rail 
projects outside the nonattainment areas would be problematic at 
    Overall, supporters of expanded eligibility were of the opinion 
that this new high speed rail service would benefit air quality in both 
nonattainment/maintenance areas as well as attainment areas. Nine of 
the respondents commented that there would be positive emissions 
benefits in the nonattainment and maintenance areas regardless of 
whether the high speed rail service passed through attainment areas. 
Responses included statements such as ``all projects that contribute to 
decreased pollution and congestion should be considered * * *'' and 
``[T]he critical factor should not be where the funds are spent, but 
rather how much congestion and pollution will be prevented in 
nonattainment areas * * *.''
    There were also a number of respondents whose support was limited. 
These respondents favored the idea of CMAQ flexibility for rail 
projects, but through additional eligibility requirements, new 
regulations, or major changes to the program for which statutory 
authority does not exist. Many of these proposed changes are infeasible 
under current legislation. However, a number of these respondents 
provided information that may help to address

[[Page 2280]]

the issues of what it means for projects to be in close proximity to 
and primarily benefitting the nonattainment area. For example, it was 
suggested that ``close proximity should be defined as a government 
defined jurisdiction that shares a common border with the nonattainment 
or maintenance area.''
    In relation to the demonstration of benefits primarily realized (or 
occurring) within the designated areas, it was offered that ``Projects 
must demonstrate air quality benefits primarily within the 
nonattainment area or maintenance area boundary [and] a performance 
standard is important. To be eligible for funding, at least 75 percent 
of the project's emission reduction should accrue in the nonattainment 
or maintenance area.'' Apparently with respect to defining the 
criterion that the project primarily serve the area, it was also 
suggested that the * * * decision * * * on whether a project provides 
enough emission reduction potential to warrant receipt of a CMAQ 
allocation should be decided at the State and local level.''
    The FHWA and the FTA believe that the commenter is right that a 
preponderance of the emissions reduction benefit should accrue within 
such areas for a project to be eligible. However, no commenter provided 
a legislative or clear scientific basis to assign any specific share of 
emission reduction benefits as a threshold for determining eligibility. 
The threshold could just as easily be set at 85 or 95 percent to meet 
the statutory requirements. Further, the agencies believe that while 
State and local entities, including the MPOs, are in a good position to 
weigh the emissions and air quality benefits of an activity proposed 
for CMAQ funds, a final determination must rest with the FHWA and the 
    The FHWA and the FTA continue to believe that there are instances 
where the project sponsor can demonstrate benefits primarily for a 
nonattainment or maintenance area despite the fact that the project or 
program may not be physically located entirely within the boundary 
area, but that this demonstration becomes increasingly difficult the 
farther the project, program or service extends beyond the area's 
boundaries. We have retained ``close proximity'' as part of the 
eligibility standard because, whatever else may be argued about the 
difficulty of accurately quantifying benefits, they do diminish with 
    There is no disagreement among the commenters that the primary 
purpose of the CMAQ program is to fund transportation improvements 
within nonattainment and maintenance areas that reduce emissions. The 
FHWA and the FTA believe that this will continue to be the general case 
for CMAQ eligibility. The FHWA and the FTA have administered the 
program under the general policy that CMAQ funds should be used for 
projects located in nonattainment and maintenance areas.
    The current policy, set forth in the agencies' program guidance 
document, also allows certain circumstances under which projects can be 
determined to be eligible for CMAQ funding even though they are not 
located entirely within designated nonattainment or maintenance areas. 
Those exceptional circumstances are when a project is located in close 
proximity to designated areas and the benefits will be realized 
primarily within the nonattainment or maintenance area boundaries. For 
example, the rail proposals found eligible thus far have both begun and 
ended in nonattainment or maintenance areas, have been for the most 
part located in designated areas, and have benefits which are primarily 
realized within the boundaries of the designated areas.
    As mentioned above, the FHWA and the FTA support flexibility and 
keeping the decisionmaking as close to the affected area as possible. 
Standards to define ``close proximity'' are difficult to establish 
without being arbitrary. Defining a specific distance from the 
designated boundary could artificially establish a second boundary. 
This new ``boundary'' could lead to another round of proximity 
questions. To avoid this, we believe that maintaining our policy of 
allowing emission reducing projects to go forward without specifically 
defining close proximity is the more prudent course. Of course, in the 
absence of an exact limit, the ``burden of proof'' falls on the project 
sponsor. It is up to the project sponsor to demonstrate that its 
emission reductions primarily benefit the nonattainment or maintenance 
area, a task clearly aided by showing a close proximity to the area.
    We believe that the preponderance of emission reduction benefits 
must accrue to such areas, in comparison with other areas served, to 
demonstrate that the project will primarily benefit the nonattainment 
or maintenance area. To that end we believe that the project sponsor 
must demonstrate the project's emission reduction benefits will 
primarily be realized within the nonattainment and maintenance area 
boundaries to be eligible.

High Speed Rail Projects

    High speed rail service, in general, is a passenger transportation 
mode that 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 such links 
serve may, or may not, be in nonattainment or maintenance areas.
    A project to improve a high speed rail service which is located 
within a nonattainment or maintenance area would be eligible for CMAQ 
if it reduces emissions and meets the other eligibility criteria and 
title 23, U.S. Code, requirements. Similarly, a high speed rail service 
may link two or more nonattainment (or maintenance) areas. If the 
project creates emission reductions in the nonattainment or maintenance 
areas, it may be eligible for CMAQ.
    Using CMAQ funds, the FHWA has funded rail projects that primarily 
serve nonattainment or maintenance areas and whose benefits occur 
primarily within those areas. CMAQ funds have already been used for a 
variety of freight and passenger rail services in New York, Ohio, 
Maine, and Illinois.
    One such project is the Empire Corridor of New York State. CMAQ 
funds are being provided to support rail improvements necessary for 
high speed rail in five counties between New York City and Schenectady. 
Four of those counties are designated as maintenance areas for the 1-
hour ozone standard. One county, in the middle of the project, is not 
    The portion of the Empire Corridor that is being funded is 
approximately 160 miles long and connects the New York City 
nonattainment area with the Albany maintenance area. Various track 
improvements, double track additions, bridge work and station 
improvements are needed to complete a viable project, in addition to 
new train-sets that will run the entire length of the project. 
Approximately 25 miles of the track work will be in the one county that 
is not designated. That track begins and ends in designated areas and 
is in close proximity to a designated county just to the west of the 
county through which it runs. The project is not viable without the 
link through the undesignated county, and the emissions benefits to be 
obtained within the designated areas by providing a quick alternative 
to automobile travel cannot be realized without this important portion. 
Therefore, the entire length from New York City to Schenectady has been 
found to be eligible for CMAQ funding, including the link within the 
one county that is not designated.

[[Page 2281]]

    Another proposal that was recently approved is to provide CMAQ 
support to a new rail service between Los Angeles and Las Vegas. The 
State of Nevada proposed to provide a relatively small portion of the 
total cost of this service using CMAQ funds. The eligibility 
determination was based on the particulate emission reductions to be 
obtained within the Las Vegas particulate matter nonattainment area.
    Within Nevada, the project will begin in the Las Vegas 
nonattainment area and proceed southwesterly toward the California 
State line, about 30 miles away. Approximately half of that distance is 
within the designated nonattainment area; the remainder of the distance 
within Nevada is not designated. Within California, the entire 
remaining distance is designated nonattainment for particulate matter. 
The western part of the route, closer to Los Angeles is classified as a 
serious nonattainment area. Thus, only about 15 miles of the 
approximately 275 mile long project is outside of designated areas. 
And, the emission benefits related to moving people by train rather 
than by automobile can only be obtained by a continuous project, 
including the area not designated.

Policy Decision

    The FHWA and the FTA believe that the current policy can serve the 
needs of those high speed rail projects that are eligible within the 
statutory authority of 23 U.S.C. 149. Under the current policy, rail 
projects can be funded if they (1) are located within, or in close 
proximity to, nonattainment or maintenance areas, (2) can demonstrate 
the projects' emission reductions are realized primarily within the 
designated areas, and (3) meet other criteria for CMAQ funding. There 
is no compelling need to modify the policy at this time. The 
determination that proposals for CMAQ funding meet these criteria 
should be made in close collaboration with State and local officials at 
transportation and air quality agencies, including the MPO, and the 
EPA, but the final determination of CMAQ eligibility rests with the 
FHWA and the FTA, as always.

    Authority: 23 U.S.C. 149, 315; 49 CFR 1.48 and 1.51.

    Issued on: January 9, 2002.
Mary E. Peters,
Administrator, Federal Highway Administration.
Jennifer L. Dorn,
Federal Transit Administrator.
[FR Doc. 02-1164 Filed 1-15-02; 8:45 am]