[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Proposed Rules]
[Pages 16262-16265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07906]



Federal Highway Administration

23 CFR Part 790

[Docket No. FHWA-2013-0018]
RIN 2125-AF63

Congestion Mitigation and Air Quality Improvement (CMAQ) Program

AGENCY: Federal Highway Administration (FHWA), U.S. Department of 
Transportation (DOT).

ACTION: Proposed rule; withdrawal.


SUMMARY: The FHWA withdraws its August 4, 2014, Notice of Proposed 
Rulemaking (NPRM), which proposed to establish a weighting factor of 
5.0, to be used in determining the weighted population of fine 
particulate (PM2.5) nonattainment areas.
    The Moving Ahead for Progress in the 21st Century Act (MAP-21) 
language for the CMAQ Program funds that must be obligated for 
PM2.5 projects in PM2.5 nonattainment and 
maintenance areas (referred to in this document as a ``set-aside'') 
instructs that the set-aside be calculated based on ``weighted 
population'' in PM2.5 nonattainment areas. Because the 
statute did not specify the values to be applied to determine the 
weighted population, FHWA had previously initiated a rulemaking to 
establish the weighting factor. After reviewing the record in this 
matter, FHWA withdraws the NPRM.

DATES: The NPRM ``Congestion Mitigation and Air Quality Improvement 
(CMAQ) Program,'' RIN 2125-2013-0018, published August 4, 2014 (79 FR 
45146), is withdrawn as of April 16, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Cecilia Ho, Office of Natural 
Environment, 202-366-9862, or Ms. Diane Mobley, Office of the Chief 
Counsel, 202-366-1366, Federal Highway Administration, 1200 New Jersey 
Ave. SE, Washington, DC 20590. Office hours are from 8 a.m. to 4:30 
p.m., e.t., Monday through Friday, except Federal holidays.


Electronic Access and Filing

    This document, the 2014 NPRM, and all comments received may be 
viewed online through the Federal eRulemaking portal at http://www.regulations.gov. The website is available 24 hours each day, 365 
days each year. An electronic copy of this document may also be 
downloaded by accessing the Office of the Federal Register's home page 
at https://www.federalregister.gov.


    The Intermodal Surface Transportation Efficiency Act of 1991 (Pub. 
L. 102-240, 105 Stat. 1914) established the CMAQ Program. The program 
provides funding to State and local governments for transportation 
projects and programs to help meet the requirements of the Clean Air 
Act (CAA) (42 U.S.C. 7401 et seq.). Funding is available to reduce 
congestion and improve air quality for areas that do not meet the 
National Ambient Air Quality Standards (NAAQS) for ozone, carbon 
monoxide (CO), or particulate matter (i.e., nonattainment areas), and 
for areas that were out of compliance but have

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now met the standards (i.e., maintenance areas). The program was 
reauthorized under the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178, 112 Stat. 107) in 1998, under the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144) in 2005, under MAP-21 
(Pub. L. 112-141, 126 Stat. 405) in 2012, and most recently under the 
Fixing America's Surface Transportation (FAST) Act (Pub. L. 114-94, 129 
Stat. 1312) in 2015.
    Section 1113(b)(6) of MAP-21 amended 23 U.S.C. 149 by adding 
subsection (k)(1) requiring priority use of CMAQ funds in areas that 
are designated nonattainment or maintenance for the PM2.5 
NAAQS.\1\ Specifically, 23 U.S.C. 149(k)(1) states:

    \1\ The EPA has set both an annual and a 24-hour NAAQS for 
PM2.5 (40 CFR 50.7).

    For any State that has a nonattainment or maintenance area for 
fine particulate matter, an amount equal to 25 percent of the funds 
apportioned to each State under section 104(b)(4) for a 
nonattainment or maintenance area that are based all or in part on 
the weighted population of such area in fine particulate matter 
nonattainment shall be obligated to projects that reduce such fine 
particulate matter emissions in such area, including diesel 

    Although the statute requires that the PM2.5 set-aside 
must be calculated based on ``weighted population,'' it was not 
specific regarding what that weighting factor should be. Because the 
language did not specify values to be applied to determine the weighted 
population, FHWA must make that determination as the Agency 
implementing the CMAQ Program.
    Since October 1, 2012, a State's CMAQ apportionment has been 
determined by multiplying a State's total amount for all apportioned 
programs under MAP-21 by the share of the State's total Fiscal Year 
(FY) 2009 apportionments for the CMAQ Program apportionment relative to 
the State's total apportionments under all programs for FY 2009, based 
on the statutory formula at the time.\2\

    \2\ 23 U.S.C. 104(b)(4).

    For the PM2.5 set-aside calculation, FHWA follows the 
prior statutory approach to weighted population formulas. To determine 
the 25 percent that States must set-aside for PM2.5 
nonattainment and maintenance areas, FHWA must determine weighted 
populations for ozone, CO, and PM2.5 nonattainment and 
maintenance areas. The weighted population numbers provide a means to 
reflect the severity of the air quality problems among the populations 
of the areas in nonattainment and maintenance for ozone, CO, and 
PM2.5. The FHWA is using the weighting factors in the most 
recent statutory apportionment formula from SAFETEA-LU for ozone and 
CO. However, since MAP-21 and prior legislation did not include a 
PM2.5 weighting factor in CMAQ apportionment formulas, FHWA 
continues to use the weighted population formula, which was used in 
prior statutes, to determine the PM2.5 set-aside under MAP-
    The use of the previous weighted population formula for the 
PM2.5 set-aside calculation is based on the congressional 
description of the set-aside and requires two main mathematical steps, 
with multiple sub-steps. The PM2.5 set-aside calculation is 
based on the State's net CMAQ apportionment, which is the State's total 
CMAQ apportionment minus required set-asides for the Transportation 
Alternatives Program and State Planning & Research. The first main step 
is to determine the amount of the State's net CMAQ apportionment that 
is attributable to PM2.5 nonattainment and maintenance. 
County-level weighted populations are calculated by taking the 
population in each of the State's counties with a nonattainment or 
maintenance area and multiplying by the weighting factors for each 
pollutant for which the county is in nonattainment or maintenance 
status. The State's total weighted population for all three criteria 
pollutants (ozone, CO, and PM2.5) is determined by combining 
the weighted populations of all counties in nonattainment or 
maintenance for any of the pollutants. The State's PM2.5 
weighted population is determined by combining the weighted populations 
of all counties in nonattainment or maintenance for PM2.5. 
The State's PM2.5 weighted population is divided by the 
State's total weighted population to determine the percentage of the 
State's total weighted population attributable all or in part to 
PM2.5. The net CMAQ apportionment amount then is multiplied 
by the PM2.5 percentage to determine the amount of the net 
CMAQ apportionment amount attributable to PM2.5 pollutants. 
The second main step is to multiply the resulting number by 25 percent 
to arrive at the PM2.5 set-aside under 23 U.S.C. 149(k)(1). 
States are to spend that set-aside only on PM2.5 projects, 
as chosen by the States, in the nonattainment or maintenance areas for 
PM2.5. This is not meant to be a limit on the amount of 
funds to be spent; areas may spend additional CMAQ funds above the 25 
percent set-aside on PM2.5 projects.
    To calculate the weighted population of an area under 23 U.S.C. 
149(k)(1), FHWA uses updated populations based on the most recent data 
available from the U.S. Census Bureau for each county, or part of a 
county, that is designated nonattainment or maintenance for ozone, CO, 
or PM2.5. The U.S. Census Bureau provides annual estimates 
of county populations, and FHWA historically has used this 
jurisdictional level to determine CMAQ apportionments. Updated 
populations are then given a relative value--a weighting--that 
corresponds to the nonattainment designation and severity of the 
criteria pollutant classification of the area, as established under the 
    Beginning in 2013, FHWA implemented the MAP-21 changes by an 
administrative determination to use a weighting factor of 1.2 for 
PM2.5 areas. The justification for this determination was 
outlined in the August 2014 NPRM.
    The FHWA issued a NPRM on August 4, 2014, proposing to set a 
weighting factor of 5.0 for PM2.5 areas. The FHWA solicited 
comments on this weighting factor and specifically requested comments 
on whether setting the weighting factor at 5.0 may present any 
implementation concerns for States or local transportation agencies, 
and if so, how FHWA could address those concerns. The FHWA received 28 
\3\ sets of comments on the NPRM.

    \3\ The docket shows receipt of 31 comments; however, 3 sets 
were duplicates.

NPRM Comments Generally

    One State DOT commented that a weighting factor of 5.0 does not 
fully consider the U.S. Environmental Protection Agency (EPA) analysis 
for the 2012 PM2.5 NAAQS. The EPA's analysis predicted that 
the implementation of Federal controls will ensure more than 90 percent 
of areas will attain the PM2.5 NAAQS by the year 2020. The 
EPA expects that fewer than 10 counties, out of the more than 3,000 
counties in the U.S., will need to consider any local actions to reduce 
fine particle pollution in order to meet the 2012 PM2.5 
NAAQS by 2020. The rest of the country can rely on air quality 
improvements from Federal rules already on the books to meet this new 
standard. It is not clear to the commenter that a proposed weighting 
factor of 5.0 sufficiently considered this EPA information and the 
associated reduction in potentially harmful health impacts.
    One metropolitan planning organization (MPO) commented that setting 
the weighting factor at 5.0 could

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inhibit the region's ability to meet existing reduction commitments for 
ground-level ozone and place a fast-growing region at a disadvantage 
for dealing with increased congestion. A weighting factor of 5.0 does 
not take into account resources available at the State and local level. 
The commenter is concerned that increasing the PM2.5 
weighting factor from the interim value of 1.2 to 5.0 will 
significantly reduce the flexibility of a State or region to develop 
air quality projects that best meet the needs of the affected local 
    One State DOT disagreed with FHWA's characterization of the impact 
of moving from a weighting factor of 1.2 to a weighting factor of 5.0 
as producing a ``modest difference.'' The commenter pointed out that 
the amount of the set-aside shown in an example set forth in the NPRM 
\4\ increases by more than 15 percent. If the weighting factor were to 
be increased from the current 1.2 to the proposed 5.0, the amount 
required to be set-aside for the 7 counties in Michigan would increase 
from $11.5 million to $15.6 million, an increase of more than $4.1 
million per year, or roughly 36 percent. Every dollar and the strings 
attached to each dollar, matter greatly to the State.
    The comments submitted by a transportation association and 
supported by 10 State DOTs and other transportation organizations 
recommended that the final rule provide the specific weightings to be 
used for each possible combination of nonattainment and maintenance 
areas. They commented that the following combinations were not 
addressed in the proposed rule, and should be added to the final rule: 
(1) Ozone nonattainment and maintenance areas that are also designated 
as PM2.5 maintenance areas; (2) CO nonattainment or 
maintenance areas that are also designated as PM2.5 
nonattainment areas; (3) CO nonattainment or maintenance areas that are 
also designated as PM2.5 maintenance areas; (4) Ozone 
nonattainment and maintenance areas that are also designated as CO 
nonattainment or maintenance areas and are designated as 
PM2.5 nonattainment areas; and (5) Ozone nonattainment and 
maintenance areas that are also designated as CO nonattainment or 
maintenance areas and are designated as PM2.5 maintenance 
areas. These combinations should be addressed specifically in the final 
rule even if the weighting for one or more of the individual pollutants 
(e.g., CO) is 1.0. The benefit of specifying the weighting factor for 
each possible combination is that it ensures clarity and certainty in 
implementation of the rule.
    The same transportation association with the supporting State DOTs 
also expressed their opposition to the proposed 5.0 weighting. They 
believed that the reasoning presented for selecting the weighting 
factor of 5.0 is inadequately supported in the proposed rulemaking. 
They commented that increasing the PM2.5 weighting factor 
from 1.2 to 5.0 will significantly reduce the flexibility of a State or 
region to develop air quality projects that best meet the needs of the 
affected local population. They recommended retaining the existing 
weighting of 1.2 for the following reasons: (1) The earlier Senate 
version of MAP-21 included a 1.2 weighting factor for an apportionment 
formula for areas designated nonattainment or maintenance for 
PM2.5: (2) The weighting factors used prior to MAP-21 (to 
determine CMAQ apportionments) ranged from 1.0 for CO to 1.4 for the 
highest ozone classification--as the NPRM notes, a weighting factor of 
1.2 is in the midpoint value of that range, and a reasonable inference 
is that Congress intended for FHWA to adopt a weighting factor within 
the range of those already in use; and (3) The factor only establishes 
a minimum investment level for PM2.5 projects. A State can 
invest additional funding in such projects if it determines this is the 
best use of its CMAQ funding. They do not believe there is sufficient 
support for concluding that PM2.5 should be assigned a 
weighting factor that is twice as great as the other two pollutants 
combined. Such a factor has no basis in the legislation nor does the 
scientific information cited in the NPRM provide a compelling basis for 
assigning such a weighting. They further commented that even if FHWA 
concluded that the highest existing factor should be doubled, there is 
an error in the logic proposed in this NPRM. The highest possible 
weighting factor should be 1.2 multiplied by 1.4, or 1.68 for an area 
that is nonattainment or maintenance for CO and is also extreme 
nonattainment for ozone. Thus, if the intent is to double the highest 
possible weighting factor under current law and policy, the weighting 
factor should be no higher than 3.36.
    In the event that a weighting factor of 1.2 is not retained for 
PM2.5 nonattainment areas, the commenters recommended 
adopting a weighting factor no higher than the current highest 
weighting factor of 1.4 for ``extreme'' ozone nonattainment areas. This 
approach would ensure that the weighting for PM2.5 
nonattainment areas is within the range contemplated by Congress when 
it enacted MAP-21 while also reflecting the heightened severity of 
PM2.5 health effects.
    Five commenters (two State DOTs and three MPOs) support FHWA 
setting the PM2.5 weighting factor at 5.0. These commenters 
cited the serious health impacts associated with PM2.5 
emissions. They agreed that setting the weighting factor at 5.0 for 
PM2.5 set-aside calculations was intended to improve and 
benefit overall public health by targeting PM2.5 emissions. 
The commenters also agreed that it is reasonable to set a weighting 
factor for PM2.5 that is higher than the weighting factor 
for ozone and CO given the potential health impacts.
    One commenter suggests that an even higher weighting factor (higher 
than 5.0) for PM2.5 nonattainment areas could be supported 
if cost effectiveness of CMAQ projects were taken into account. For 
example, the Carl Moyer Program administered by the California Air 
Resources Board has, for many years, taken the health impacts and 
toxicity of PM2.5 into account in its cost effectiveness 
formula that is used to determine which projects are funded. They urged 
FHWA to consider the rationale for a higher weighting of 
PM2.5 emission reductions relative to nitrogen oxide, 
volatile organic compounds, and CO, as well.
    One MPO commented that a wide variety of projects eligible under 
the CMAQ Program reduce PM2.5 as well as other criteria 
pollutants. The flexibility that FHWA has provided to select projects 
that demonstrate criteria pollutant emissions for CMAQ funding is 
beneficial and appreciated. This commenter requests that FHWA continue 
this flexibility with respect to the types of projects that reduce 
PM2.5 and are counted toward the obligation targets for such 
projects. This allows each region to effectively target investment 
opportunities specific to its unique strategies to meet air quality as 
well as other planning objectives.

FHWA Decision To Withdraw the NPRM

    Based on the current record, including comments received in 
response to the NPRM indicating that the 1.2 weighting factor was 
sufficient and provided States necessary flexibilities, FHWA has 
decided to withdraw the August 2014 NPRM and, accordingly, cancels the 
plans to develop a final rule. If FHWA determines changes to the 
weighting factor currently in use are necessary and advisable in the 
future, a new rulemaking would be initiated that will

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incorporate any appropriate recommendations from the comments received 
through this rulemaking. The FHWA will continue to use the weighting 
factor in use since 2013. The NPRM proposing to establish a weighting 
factor to be used in determining the weighted population of 
PM2.5 nonattainment areas are withdrawn.

    Issued on: April 10, 2018.
Brandye L. Hendrickson,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2018-07906 Filed 4-13-18; 8:45 am]