Congestion Mitigation and Air Quality Improvement (CMAQ) Program |
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Brandye L. Hendrickson
Federal Highway Administration
16 April 2018
[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]
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DEPARTMENT OF TRANSPORTATION
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.
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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45146), is withdrawn as of April 16, 2018.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.
SUPPLEMENTARY INFORMATION:
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.
Background
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:
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\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
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retrofits.
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\
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\2\ 23 U.S.C. 104(b)(4).
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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-
21.
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
CAA.
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.
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\3\ The docket shows receipt of 31 comments; however, 3 sets
were duplicates.
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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
population.
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]
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