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.

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 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 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/cmaqabs.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 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.