[Federal Register Volume 79, Number 149 (Monday, August 4, 2014)]
[Proposed Rules]
[Pages 45146-45151]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17786]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 790

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


Congestion Mitigation and Air Quality Improvement (CMAQ) Program

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The CMAQ program provides funding to State and local 
governments for transportation projects and programs to help meet the 
requirements of the Clean Air Act (CAA). 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 (nonattainment areas) and for 
areas that were out of compliance but have now met the standards 
(maintenance areas). The Moving Ahead for Progress in the 21st Century 
Act (MAP-21) requires priority use of CMAQ funds in areas that are 
designated nonattainment or maintenance for fine particulate matter 
(PM2.5) NAAQS under the CAA. Specifically, an amount equal 
to 25 percent of the CMAQ funds apportioned to each State for a 
nonattainment or maintenance area that is based all or in part on the 
weighted population of the PM2.5 nonattainment area shall be 
obligated to projects that reduce PM2.5 emissions in such 
area. These projects include diesel retrofits for on-road and some off-
road applications, as well as for diesel equipment operated on a 
highway construction project within PM2.5 nonattainment and 
maintenance areas.
    Although the MAP-21 language for the CMAQ funds that must be 
obligated for PM2.5 projects (referred to in this NPRM as a 
``set-aside'') instructs that the set-aside be calculated based on 
``weighted population'' for PM2.5, the statute does not 
specify the values to be applied to determine the weighted population. 
In this proposed rule, FHWA is requesting comments on a proposed 
weighting factor of 5, to be used in determining the weighted 
population of a PM2.5 nonattainment area.

DATES: Comments must be received on or before October 3, 2014. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, 1200 New Jersey Avenue 
SE., Washington, DC 20590, or submit electronically at 
www.regulations.gov or fax comments to 202-493-2251. All comments 
should include the docket number that appears in the heading of this 
document. All comments received will be available for examination and 
copying at the above address from 9 a.m. to 5 p.m., e.t., Monday 
through Friday, except Federal holidays. Those desiring notification of 
receipt of comments must include a self-addressed, stamped postcard or 
you may print the acknowledgment page that appears after submitting 
comments electronically. Anyone is able to search the electronic form 
of all comments in any one of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, or labor union). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: Ms. Cecilia Ho, Office of Natural 
Environment, HEPN, 202-366-9862, or Ms. Janet Myers, Office of the 
Chief Counsel, 202-366-2019, Federal Highway Administration, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001. Office hours are from 
8:00 a.m. to 4:30 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Document 
Management System at: http://www.regulations.gov. Electronic submission 
and retrieval help and guidelines are available under the help section 
of the Web site. It is available 24 hours each day, 365 days each year. 
Please follow the instructions. An electronic copy of this document may 
also be downloaded by accessing the Federal Register's home page at: 
http://www.federalregister.gov.

Executive Summary

I. Purpose of the Regulatory Action

    This regulation seeks to establish a proposed weighting factor of 
5, to be used in determining the weighted population of a 
PM2.5 nonattainment area. Although the MAP-21 language for 
the CMAQ funds that must be obligated for PM2.5 projects 
instructs that the set-aside be calculated based on ``weighted 
population'' for PM2.5, the statute does not specify the 
values to be applied to determine the weighted population.
    Section 1113(b)(6) of MAP-21 amends 23 U.S.C. 149 by adding 
subsection (k)(1) that requires 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 
that an amount equal to 25 percent of the funds attributed to 
PM2.5 nonattainment in each of the affected States must be 
used for projects that reduced PM2.5 emissions in those 
nonattainment and maintenance areas.
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    \1\ The EPA has set both an annual and a 24-hour NAAQS for 
PM2.5 (40 CFR 50.7).
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    Although this MAP-21 language states that the PM2.5 set-
aside must be

[[Page 45147]]

calculated based on ``weighted population,'' it is not specific 
regarding what that weighting factor should be. Because the language 
does not specify values to be applied to determine the weighted 
population, that determination must be made by FHWA as the agency 
implementing the CMAQ Program.

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    Section 790.107(d). Weighting Factors for Determining Weighted 
Populations. Subsection (d) would incorporate the weighting factor 
chosen by FHWA for PM2.5 as a result of this rulemaking. The 
MAP-21 makes clear that populations in PM2.5 nonattainment 
areas must be weighted, but it does not establish a specific weighting 
factor for those populations. This subsection would establish an 
appropriate weighting factor for PM2.5. The FHWA is seeking 
comments on establishing a weighting factor of 5 for PM2.5 
populations, as discussed below.

III. Costs and Benefits

    This rulemaking proposes to set forth requirements for the CMAQ 
Program, which would not change overall levels of State apportionments. 
Regardless of the weighting factor for PM2.5 that FHWA 
chooses to establish through this rulemaking, a State's total 
apportionment under the CMAQ program will not change; only the amount 
that the State would be required to set-aside for projects that reduce 
PM2.5 would change. Regardless of the weighting factor 
selected, only modest differences would result in the portion set aside 
for PM2.5. This rulemaking may result in minimal costs to 
grantees, and FHWA seeks comment on administrative or other costs that 
may be incurred as a result of the proposed weighting factor.

Background

    The Intermodal Surface Transportation Efficiency Act of 1991 
(ISTEA) (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 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 NAAQS 
for ozone, CO, or particulate matter (nonattainment areas) and for 
areas that were out of compliance but have now met the standards 
(maintenance areas). The program was reauthorized under the 
Transportation Equity Act for the 21st Century (TEA-21) (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, and most recently under MAP-
21 (Pub. L. 112-141, 126 Stat. 405) in 2012.
    The CMAQ Program supports two important DOT goals: Improving air 
quality and relieving congestion. This program helps States and 
metropolitan areas meet their CAA obligations in nonattainment and 
maintenance areas. Additionally, MAP-21 puts an increased focus on 
addressing PM2.5 emissions, also referred to as ``fine 
particulate matter''.
    The PM2.5 can create significant health risks at levels 
above the NAAQS, including premature death from heart and lung 
diseases. Newly available information \2\ for fine particles provides a 
substantially stronger level of confidence compared to previous reviews 
about a causal relationship between long- and short-term exposures to 
PM2.5 and mortality and cardiovascular and respiratory 
effects. The studies indicate that fine particles pose a serious public 
health problem. Exposure to fine particulate pollution at levels above 
the NAAQS can cause premature death and harmful effects on the 
cardiovascular system (the heart, blood, and blood vessels). Fine 
particle exposure also is linked to a variety of other public health 
problems, including respiratory diseases.\3\ An extensive body of 
scientific evidence indicates that breathing in PM2.5 over 
the course of hours to days (short-term exposure) and months to years 
(long-term exposure) can cause serious public health effects that 
include premature death and adverse cardiovascular and respiratory 
effects.
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    \2\ U.S. EPA. Integrated Science Assessment for Particulate 
Matter (Final Report). U.S. Environmental Protection Agency, 
Washington, DC, EPA/600/R-08/139F, 2009 (available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546); EPA National 
Ambient Air Quality Standards for Particular Matter: Final rule, 78 
FR 3086 (January 15, 2013) (available at http://www.gpo.gov/fdsys/pkg/FR-2013-01-15/pdf/2012-30946.pdf).
    \3\ EPA. Particle Pollution and Health, 2012 (available at 
http://www.epa.gov/pm/2012/decfshealth.pdf).
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    The health effects of PM2.5 are also greater when 
compared to the effects of other pollutants. For example, results of 
one recent research study \4\ found that exposure to modeled 2005 air 
quality concentrations relative to non-anthropogenic background air 
quality concentrations of PM2.5 was estimated to result in 
approximately 130,000 (51,000-200,000) \5\ premature deaths nationally 
for people greater than age 29, while ozone was predicted to result in 
approximately 19,000 (7,600-29,000) premature deaths nationally for 
people greater than age 29. The health benefits of reducing 
PM2.5 are particularly large because the relationship 
between PM2.5 and mortality is stronger than for ozone. 
Therefore, the avoided mortality due to reductions in PM2.5 
will be greater than proportional reductions in ozone.
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    \4\ Fann N, Lamson A, Wesson K, Risley D, Anenberg SC, Hubbell 
BJ. Estimating the National Public Health Burden Associated with 
Exposure to Ambient PM2.5 and Ozone. Risk Analysis; 2011 
(available at http://onlinelibrary.wiley.com/doi/10.1111/j.1539-6924.2011.01630.x/full).
    \5\ The ranges presented in parentheses for each health impact 
represents the 95 percent confidence interval calculated using a 
Monte Carlo method based on the standard error reported in each 
epidemiological study included in this analysis.
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I. Issue To Be Addressed by Rulemaking

    Section 1113(b)(6) of MAP-21 amends 23 U.S.C. 149 by adding 
subsection (k)(1) that requires priority use of CMAQ funds in areas 
that are designated nonattainment or maintenance for the 
PM2.5 NAAQS.\6\ Specifically, 23 U.S.C. 149(k)(1) states:
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    \6\ 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 
particular matter emissions in such area, including diesel 
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retrofits.

    Although this MAP-21 language states that the PM2.5 set-
aside must be calculated based on ``weighted population'', it is not 
specific regarding what that weighting factor should be. Because the 
language does not specify values to be applied to determine the 
weighted population, that determination must be made by FHWA as the 
agency implementing the CMAQ Program.
    Giving a higher or lower weighting factor to PM2.5 
populations will not affect each State's overall CMAQ apportionment. It 
may affect only the portion of each State's overall CMAQ apportionment 
required to be obligated for projects that reduce PM2.5 
emissions. Generally, a higher weighting factor would mean States must 
spend more funds on PM2.5 reduction strategies; a lower 
weighting factor would mean lower mandated spending on PM2.5 
projects.

II. Background of the Proposal

    Under ISTEA, TEA-21, and SAFETEA-LU, funding apportionments

[[Page 45148]]

for each State were calculated based on a formula for weighted 
populations in ozone and CO nonattainment and maintenance areas. All 
three prior transportation authorizations contained specific weighting 
factors to be used in the calculations. Unlike previous legislation, 
MAP-21 does not include a statutory distribution formula for CMAQ 
apportionment, although it indirectly references the former statutory 
formula. Beginning on October 1, 2012, a State's CMAQ apportionment is 
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, based on the statutory 
formula at the time.\7\
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    \7\ 23 U.S.C. 104(b)(4).
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    For the PM2.5 set-aside calculation, FHWA is following 
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 in nonattainment for PM2.5. The FHWA is using 
the weighting factors in the most recent statutory apportionment 
formula from SAFETEA-LU for ozone and CO. Because MAP-21 and prior 
legislation did not include a PM2.5 weighting factor in CMAQ 
apportionment formulas, FHWA is proposing to assign a new weighting 
factor to PM2.5. For informational purposes, the process of 
how weighted population is calculated is described below.
    The FHWA will continue to use the weighted population formula, 
which was used in prior statutes, under MAP-21. To determine the amount 
of the PM2.5 set-aside, based on the congressional 
description of the set-aside, requires several mathematical steps. The 
first step is to determine the part of the State's net CMAQ 
apportionment that is attributable to PM2.5 nonattainment 
and maintenance. The State's weighted populations in nonattainment and 
maintenance areas are determined for all three criteria pollutants 
(ozone, CO, and PM2.5) by multiplying the population in each 
county with a nonattainment or maintenance area, by the weighting 
factors for each pollutant for which the county is in nonattainment or 
maintenance status, to determine the State's weighted population by 
county for each criteria pollutant. The weighted populations of all 
counties for each pollutant (ozone, CO, and PM2.5) are then 
added up to determine the State's total weighted population for all 
three of these criteria pollutants. The weighted populations for all 
counties in nonattainment or maintenance status for PM2.5 
are added up and divided by the State's total weighted population for 
all three criteria pollutants to determine the percentage of the 
State's total weighted population for all three criteria pollutants 
that are attributable 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 resulting number is multiplied 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 imply that areas 
cannot spend additional CMAQ funds on PM2.5 projects.
    To calculate the weighted population of an area under 23 U.S.C. 
149(k)(1), FHWA will use 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 will then be 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. While MAP-21 does not include a weighted population, FHWA uses the 
weighting factors in the most recent statutory apportionment formula 
from SAFETEA-LU for ozone and CO, since retaining these weights would 
be consistent with MAP-21 provisions for using State's FY 2009 
apportionments as the basis for calculating CMAQ apportionments funding 
under MAP-21. Because MAP-21 and prior legislation did not include a 
PM2.5 weighting factor in CMAQ apportionment formulas, FHWA 
is proposing to assign a new weighting factor to PM2.5
    For FY 2013 and 2014, FHWA implemented the MAP-21 changes by an 
administrative determination to use a weighting factor of 1.2 for 
PM2.5 areas. The outcome of this rulemaking will not affect 
the calculations made for FY 2013 and 2014, and FHWA will continue to 
use the interim weighting factor of 1.2 until a factor is established 
through this rulemaking. The administrative determination to use a 
weighting factor of 1.2 for the PM2.5 areas was based on the 
following: first, FHWA noted that the earlier Senate version of MAP-21 
(section 1113(j)(6) of S. 1813) included a 1.2 weighting factor for an 
apportionment formula for areas designated nonattainment or maintenance 
for PM2.5. Second, historically, the weighting factors 
applied ranged from 1.0 for CO and the lowest ozone classification to 
1.4 for the highest ozone classification. A weighting factor of 1.2 is 
the midpoint value of that range, which would put PM2.5 at a 
comparable level with the two other criteria pollutants (CO and ozone) 
under prior legislation. Finally, FHWA considered that, while a weight 
of 1.2 would set the floor for the 25 percent set-aside, it would not 
preclude a State from investing more funding on PM2.5 
strategies if the State determined that it was the most appropriate use 
of its funds. However, due to the serious health impacts of 
PM2.5 as discussed in Section I, FHWA has decided to seek 
the benefit of public comment to evaluate the appropriate 
PM2.5 weighting factor through the rulemaking process. The 
FHWA will continue to use 1.2 as the weighting factor for determining 
PM2.5 set-aside until the rulemaking is completed.
    The weighting factor for PM2.5 is the focus of this 
rulemaking. The FHWA also proposes to include the prior statutory 
weighting factors for ozone and CO in the rule text because those 
factors are used in the calculation of the PM2.5 set-aside. 
However, since the ozone and CO weighting factors are already 
incorporated in the calculation of the CMAQ apportionments established 
under MAP-21, FHWA is not considering changes to these weighting 
factors.

III. Section-by-Section Discussion of the Proposal

    Following is a discussion of each of the Sections in the proposed 
rule:
    Section 790.101 Purpose. This section sets forth the purpose of the 
proposed regulation, explaining that it is intended to establish a 
weight for PM2.5 populations that would be used in 
calculating the 25 percent set-aside that must be used for 
PM2.5 reduction strategies in any State that has a 
PM2.5 nonattainment or maintenance area. This section also 
identifies the legislative basis for the rulemaking in 23 U.S.C. 
149(k)(1), as amended by MAP-21 section 1113(b)(6).

[[Page 45149]]

    Section 790.103 Applicability. This section clarifies that this 
proposed regulation would apply to all States that have a 
PM2.5 nonattainment or maintenance area. It would not apply 
to States that do not have a PM2.5 nonattainment or 
maintenance area.
    Section 790.105 Definitions. This section establishes that 
definitions contained in 23 U.S.C. 101(a) are applicable to this part. 
It also defines some additional terms that would be used in the 
proposed regulation. It includes a definition for Criteria Pollutant, 
Maintenance Area, National Ambient Air Quality Standards, Nonattainment 
Area, and Weighted Populations.
    Section 790.107. Weighting Factors for Determining Weighted 
Populations. Subsections (a), (b), and (c) of this section would 
present the weighting factors for ozone and CO that are incorporated 
into the calculation of State apportionments of CMAQ funding under MAP-
21 and are used as part of the weighted population formula for the 
calculation of the PM2.5 set-aside. While MAP-21 does not 
include a weighted population formula, it directed that the FY 2009 
CMAQ and total State apportionments be used as the basis for 
calculating CMAQ apportionments under MAP-21. The FY 2009 CMAQ 
apportionments were calculated based on the weighted values in the most 
recent statutory apportionment formula from SAFETEA-LU for ozone and 
CO. Retaining these weights is necessary in order to be consistent with 
the approach under MAP-21 of using FY 2009 apportionments as the basis 
for CMAQ funding. These weights are included in the rulemaking to 
clarify the ozone and CO weighting factors to be used in the 
PM2.5 set-aside formula. However, since they are based in 
prior statute, FHWA is not proposing changes to these weighting 
factors.
    Subsection (d) would incorporate the weighting factor chosen by 
FHWA for PM2.5 as a result of this rulemaking. As discussed 
above, MAP-21 makes clear that populations in PM2.5 
nonattainment areas must also be weighted, but it does not establish a 
specific weighting factor for those populations. This subsection would 
establish an appropriate weighting factor for PM2.5. The 
FHWA is seeking comments on establishing a weighting factor of 5 for 
PM2.5 populations, as discussed in more detail in the next 
section.

IV. Determine PM2.5 Weighting Factor

    The FHWA is proposing to set a weighting factor of 5 for 
PM2.5 areas. The FHWA requests comments on this weighting 
factor. The FHWA requests that commenters provide comments on whether 
setting the weighting factor at 5 may present any implementation 
concerns for States or local transportation agencies, and if so, how 
FHWA could address those concerns.
    Based upon FHWA's review of the serious health impacts of 
PM2.5 as described above, and Congress' direction to reduce 
PM2.5 emissions, as evidenced by its action to set-aside a 
portion of CMAQ funds to address PM2.5 emissions, FHWA 
believes it is reasonable to establish a weighting factor of 5. Given 
the severity of PM2.5 health impacts, a weight substantially 
higher than the weights for ozone and carbon monoxide is appropriate. 
Setting a higher weight for PM2.5 relative to the other two 
criteria pollutants is consistent with the emphasis by Congress on 
PM2.5 reduction strategies by singling them out for the set-
aside. Using the combined weight for the two other criteria pollutants, 
ozone and carbon monoxide, as a point of reference, FHWA believes that 
a weight for PM2.5 of approximately twice the weight for 
both of these criteria pollutants combined is reasonable. The highest 
combined weight for ozone and carbon monoxide populations is 2.4.\8\ 
Given the severe health impacts of PM2.5 as discussed above, 
FHWA, therefore, believes that a weight for PM2.5 
populations of 5 is appropriate. FHWA requests comments on this 
weighting factor.
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    \8\ Based on the previous CMAQ apportionment formula, the 
weighting factor for an extreme ozone nonattainment area is 1.4 and 
the weighting factor for a CO area is 1.0. The combined weights for 
ozone and CO is calculated as follows: 1.4 +1.0 = 2.4.
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V. Illustrations of Effects of Weighting on Funding Levels for 
PM2.5 Set-aside

    The FHWA's analyses indicate that setting the weighting factor at 
5, as compared to the 1.2 used for FY 2013 and 2014, only produces a 
modest difference in the amount of funding required to be set aside for 
PM2.5 reduction strategies in States with PM2.5 
nonattainment or maintenance areas. The 25 percent priority established 
by Congress still functions as a maximum or a ceiling for this 
dedicated portion of CMAQ funding. For illustrative purposes, a 
hypothetical example of a CMAQ apportionment at $100 million is 
presented below to demonstrate the order of magnitude of the change in 
the resulting values for the PM2.5 set-aside, using 1.2, 
2.5, and 5 as factors for weighted populations in PM2.5 
nonatttainment areas.\9\
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    \9\ Population in ozone and CO nonattainment and maintenance 
areas were weighted using factors as described in section 790.107.

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     Illustrative CMAQ
   apportionment at $100       Illustrative PM2.5 set-      Illustrative PM2.5 set-     Illustrative PM2.5 set-
          million                    aside at 1.2                aside at 2.5                 aside at 5
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          $100,000,000                  $19,667,367                 $21,449,921                 $22,693,414
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Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered by FHWA and will be 
available for examination in the docket at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined preliminarily that this action would be a 
significant rulemaking action within the meaning of Executive Order 
12866 and would be significant within the meaning of the DOT's 
regulatory policies and procedures. This action is considered 
significant based upon FHWA's review of the serious health impacts of 
PM2.5 as described above, and Congress' direction to reduce 
PM2.5 emissions, as evidenced by its action to set aside a 
portion of CMAQ funds to address PM2.5 emissions.
    However, this rulemaking is not considered economically significant 
within the meaning of Executive Order 12866 because this action would 
only have a limited impact on funding levels and affect a small measure 
of change in the existing CMAQ program. This rulemaking proposes to set 
forth requirements for the CMAQ Program, which would not change overall 
levels of State apportionments. Regardless of

[[Page 45150]]

the weighting factor for PM2.5 that FHWA chooses to 
establish through this rulemaking, a State's total apportionment under 
the CMAQ program will not change; only the amount that the State would 
be required to set-aside for projects that reduce PM2.5 
would change. As illustrated in the table above, regardless of whether 
FHWA selects a weighting factor of 1.2, 2.5, or 5, only modest 
differences would result in the portion set aside for PM2.5. 
This rulemaking may result in minimal costs to grantees, and FHWA seeks 
comment on administrative or other costs that may be incurred as a 
result of the proposed weighting factor. The proposed change is not 
anticipated to materially and adversely affect any sector of the 
economy. In addition, FHWA does not anticipate that these proposed 
changes would create a serious inconsistency with any other agency's 
action or materially alter the budgetary impact of any entitlements, 
grants, user fees, or loan programs. Consequently, a full regulatory 
evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 60l-612), FHWA has evaluated the effects of this proposed 
action on small entities and has determined that the proposed action 
would not have a significant economic impact on a substantial number of 
small entities.
    The proposed rule addresses requirements for the use of CMAQ funds 
in certain States for implementing the CMAQ Program. As such, it 
affects only States, and States are not included in the definition of a 
small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory 
Flexibility Act does not apply, and I hereby certify that this action 
would not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 
1995, 109 Stat. 48). This proposed rule would not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $143.1 million or more in any one year (2 
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform 
Act of 1995, FHWA will evaluate any regulatory action that might be 
proposed in subsequent stages of the proceeding to assess the effects 
on State, local, and tribal governments and the private sector. 
Additionally, the definition of ``Federal Mandate'' in the Unfunded 
Mandates Reform Act excludes financial assistance of the type in which 
State, local, or tribal governments have authority to adjust their 
participation in accordance with changes made in the program by the 
Federal Government. The Federal-aid highway program permits this type 
of flexibility.

Executive Order 13132 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132, and the 
FHWA has preliminarily determined that this proposed action would not 
warrant the preparation of a federalism assessment. The FHWA has also 
determined that this proposed action would not preempt any State law or 
State regulation or affect the States' ability to discharge traditional 
State governmental functions.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.205, 
Highway Planning and Construction. The regulations implementing 
Executive Order 12372 regarding intergovernmental consultation on 
Federal programs and activities apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), 
Federal agencies must obtain approval from the Office of Management and 
Budget for each collection of information they conduct, sponsor, or 
require through regulations. The FHWA has determined that this proposal 
does not contain collection of information requirements for the 
purposes of the PRA.

National Environmental Policy Act

    The agency has analyzed this action for purposes of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has 
determined that it will not have any significant effect on the quality 
of the environment and meets the criteria for a categorical exclusion 
under 23 CFR 771.117(c)(20).

Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this proposed rule under Executive Order 
12630, Governmental Actions and Interface with Constitutionally 
Protected Property Rights. The FHWA does not anticipate that this 
proposed action would affect a taking of private property or otherwise 
have taking implications under Executive Order 12630.

Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, and DOT 
Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at 
www.fhwa.dot.gov/enviornment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental 
justice (EJ) as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority and 
low income populations in the United States. The DOT Order requires DOT 
agencies to address compliance with the Executive Order and the DOT 
Order in all rulemaking activities. In addition, on June 14, 2012, the 
FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA 
Actions to Address Environmental Justice in Minority Populations and 
Low Income Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.htm).
    The FHWA has evaluated this proposed rule under the Executive 
Order, the DOT Order, and the FHWA Order. The agency has determined 
that the proposed rule, if finalized, would not cause 
disproportionately high and adverse human health and environmental 
effects on minority or low income populations. This action proposes to 
establish the weight applied in calculating the PM2.5 set-
aside under the CMAQ Program. The selected weight would be used only to 
determine the amount of apportioned CMAQ funds that each State must 
obligate to projects that reduce PM2.5 emissions. The same 
weight would be applied nationwide. The States, as grantees, would 
decide which projects they would like to fund with the set-aside, 
including which PM2.5 nonattainment or maintenance areas 
should host the projects and thereby benefit from reduced 
PM2.5 emissions. As part of the environmental review process 
required before FHWA approves funding for a State-selected project, the 
FHWA will evaluate the potential EJ impacts of the project pursuant to 
the Executive Order, DOT Order, and FHWA Order described above.

[[Page 45151]]

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. The FHWA 
certifies that this proposed action would not cause any environmental 
risk to health or safety that might disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under Executive Order 13175 and 
believes that the proposed action would not have substantial direct 
effects on one or more Indian tribes; would not impose substantial 
direct compliance costs on Indian tribal governments; and would not 
preempt tribal laws. The proposed rulemaking addresses the weighting 
factor for the PM2.5 areas for use in determining the 
weighted population to be included in the calculations of the 
PM2.5 set-asides under 23 U.S.C. 149(k), and would not 
impose any direct compliance requirements on Indian tribal governments. 
Therefore, a tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a significant 
energy action under that order since it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Therefore, a Statement of Energy Effects is not required.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

    Issued on: July 21, 2014
Gregory G. Nadeau,
Deputy Administrator, Federal Highway Administration.
    In consideration of the foregoing, the FHWA proposes to add part 
790 to title 23, subchapter H, Code of Federal Regulations, to read as 
follows:

PART 790--CONGESTION MITIGATION AND AIR QUALITY IMPROVEMENT

Sec.
790.101 Purpose.
790.102 Applicability.
790.103 Definitions.
790.104 Weighting factor for determining weighted population.

    Authority: 23 U.S.C. 149; 49 CFR 1.85.


Sec.  790.101  Purpose.

    The purpose of this part is to establish the weighting factors, as 
directed by 23 U.S.C. 149(k)(1), for the calculation of weighted 
population to determine the 25 percent of the funds apportioned under 
section 23 U.S.C. 104(b)(4) for any State that has a PM2.5 
nonattainment or maintenance area that must be obligated to fund 
projects that reduce PM2.5 emissions in such area.


Sec.  790.103  Applicability.

    This part applies to all States that have a PM2.5 
nonattainment or maintenance area.


Sec.  790.105  Definitions.

    Unless otherwise specified in this part, the definitions in 23 
U.S.C. 101(a) are applicable to this part. As used in this part:
    Criteria pollutant means any pollutant for which there is 
established a NAAQS at 40 CFR part 50. The transportation related 
criteria pollutants per 40 CFR 93.102(b) are carbon monoxide, nitrogen 
dioxide, ozone and particulate matter (PM10 and 
PM2.5).
    Maintenance area means any geographic region of the United States 
that the Environmental Protection Agency (EPA) previously designated as 
a nonattainment area for one or more pollutants pursuant to the Clean 
Air Act Amendments of 1990 and subsequently redesignated as attainment 
subject to the requirement to develop a maintenance plan under section 
175A of the Clean Air Act, as amended.
    National Ambient Air Quality Standards (NAAQS) means those 
standards established by the EPA pursuant to section 109 of the Clean 
Air Act.
    Nonattainment area means any geographic region of the United States 
that EPA has designated as nonattainment under section 107 of the Clean 
Air Act for any pollutant for which a national ambient air quality 
standard exists.
    Weighted population means the population of each county within a 
designated ozone, carbon monoxide (CO), and PM2.5 
nonattainment and maintenance area that would be given a relative 
value, or weighting to reflect the severity of the pollutant 
classification or designation.


Sec.  790.107  Weighting factors for determining weighted population.

    (a) For purposes of 23 U.S.C. 149(k)(1), for an ozone nonattainment 
and maintenance area, the weighting factors determined are as follows:
    (1) Marginal nonattainment area, the weighting factor is 1.0.
    (2) Moderate nonattainment area, the weighting factor is 1.1.
    (3) Serious nonattainment area, the weighting factor is 1.2.
    (4) Severe nonattainment area, the weighting factor is 1.3.
    (5) Extreme nonattainment area, the weighting factor is 1.4.
    (6) Maintenance area, the weighting factor is 1.0.
    (b) For purposes of 23 U.S.C. 149(k)(1), for a carbon monoxide 
nonattainment and maintenance area, the weighting factor is 1.0.
    (c) For purposes of 23 U.S.C. 149(k)(1), for areas that are 
designated nonattainment or maintenance for ozone and carbon monoxide, 
the weighting factor is 1.2 multiplied by the applicable ozone factor 
as defined in paragraph (a) of this section.
    (d) For purposes of 23 U.S.C. 149(k)(1), for a PM2.5 
nonattainment area, the weighting factor is 5.0. For a PM2.5 
maintenance area, the weighting factor is 1.0.
    (e) For purposes of 23 U.S.C. 149(k)(1), for areas that are 
designated nonattainment or maintenance for ozone and nonattainment for 
PM2.5, the weighting factor is 5.0 multiplied by the 
applicable ozone factor as defined in paragraph (a) of this section.

[FR Doc. 2014-17786 Filed 8-1-14; 8:45 am]
BILLING CODE 4910-22-P