[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Notices]
[Pages 62362-62379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24704]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2006-26383]
Publication of Final Guidance on the Congestion Mitigation and
Air Quality Improvement (CMAQ) Program
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of publication of final guidance.
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SUMMARY: The purpose of this notice is to announce the publication of
CMAQ final guidance. Sections 1101, 1103 and 1808 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) (Pub. L. 109-59, Aug. 10, 2005) \1\ amend the
Congestion Mitigation and Air Quality Improvement (CMAQ) Program, and
authorize $8.6 billion to support the CMAQ program in 2005-2009. The
interim guidance went into effect October 31, 2006; however, we
solicited comments on the interim guidance on December 19, 2006, at 71
FR 76038. This notice describes and discusses comments we received and
announces the publication of the final CMAQ guidance. The notice also
describes the effect of a provision of the Energy Independence and
Security Act of 2007, Pub. L. 110-140 that affects CMAQ funding. This
provision became effective on December 20, 2007, beyond the time for
submitting comments on the interim guidance.
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\1\ 23 U.S.C. 149 (2005).
FOR FURTHER INFORMATION CONTACT: Mike Koontz, Office of Natural and
Human Environment, (202) 366-2076, [email protected]; or Diane
Liff (202) 366-6203, [email protected], or Harold Aikens (202) 366-
1373, [email protected], Office of the Chief Counsel, Federal
Highway Administration, 1200 New Jersey Avenue, SE., Washington, DC
20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday
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through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access this document, the notice of interim
guidance and request for comment, and all comments received by the U.S.
Department of Transportation (DOT) by using the Federal eRulemaking
portal at http://www.regulations.gov. It is available 24 hours each
day, 365 days each year. Electronic submission and retrieval help and
guidelines are available under the help section of the Web site.
An electronic copy of this document may also be downloaded by
accessing the Office of the Federal Register's home page at: http://www.archives.gov or the Government Printing Office's Web page at http://www.gpoaccess.gov/nara.
An electronic version of the final CMAQ guidance may be downloaded
from the FHWA Web page at: http://www.fhwa.dot.gov/environment/cmaq06gm.htm. It is also attached for reference below.
Background
The CMAQ program was created by the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, Dec.
18, 1991) and continued under the Transportation Equity Act for the
21st Century (TEA-21) (Pub. L. 105-178; Oct. 1998). Through 2005, the
program supported nearly 16,000 transportation projects across the
country. In SAFETEA-LU, the most recent authorization of the Federal-
aid highway program, Congress amended the CMAQ program and authorized
funding to support the CMAQ program in 2005-2009 (see sections 1101,
1103 and 1808 of SAFETEA-LU). More than $8.6 billion are authorized
over the 5-year program (2005-2009), with annual authorization amounts
increasing each year during this period.
This final guidance updates and replaces previous program guidance
issued in 1999. It focuses primarily on project eligibility provisions
and identifies the types of projects that are eligible for CMAQ
support. It also provides information on how CMAQ apportionments are
calculated and the geographic areas where CMAQ funds can be used;
discusses the project selection process and requirements for analyzing
emissions benefits from potential projects as part of the selection
process; and examines Federal, State and Metropolitan Planning
Organization (MPO) program administration responsibilities.
This final guidance includes discussions and directions on new or
highlighted CMAQ topics under SAFETEA-LU and, in particular, emphasizes
diesel engine retrofits and cost-effective congestion mitigation
activities as priorities for CMAQ expenditures. It also provides
relative cost-effectiveness data on various eligible project types to
help inform the CMAQ project selection process.
Discussion of Comments Received to the Notice of Interim Guidance
The FHWA published its Notice of Interim Guidance and Request for
Comment on December 19, 2006 (71 FR 76038). In response to the notice,
the FHWA received 42 comments. Of the 42 comments, 11 were submitted by
or on behalf of transportation advocacy organizations, 9 were submitted
by metropolitan planning organizations (MPO) or other similar regional
governmental entities, 5 were received from State departments of
transportation or other State government agencies, 3 were received from
county governments, 2 from counsel representing transportation
organizations, 2 from environmental advocacy organizations, and 1
comment was submitted by a private citizen. It should be noted that the
total does not sum to the 42 docket entries due to duplication
associated with edited and resent documents and separate submittals for
attachments. The FHWA considered each of these comments in adopting
this final guidance. Following is a section-by-section analysis of the
docketed comments and the FHWA's conclusions regarding issues raised:
Section-by-Section Discussion of Comments
Section IV. Priority for Use of CMAQ Funds
A total of 14 comments were received about the guidance's treatment
of project prioritization and selection for cost-effective CMAQ funded
programs and activities, specifically diesel retrofits. The only
comment received
[[Page 62363]]
regarding the priority of congestion relief projects (see comment below
regarding the eligibility of single-occupant vehicle (SOV) capacity
increases) pertained to items that are beyond the scope of this
guidance.
Respondents suggested a spectrum of possibilities. Some, noting the
flexibility of CMAQ as its biggest asset, recommended leaving the
priority and selection to the local decision makers. In particular,
many State and local agencies, and organizations representing State and
local governments, pointed to the SAFETEA-LU savings language, which
states that the CMAQ program is not intended to disturb the existing
authorities and roles of governmental agencies in making final project
selections.
Others suggested making cost effectiveness the sole reason to
support project or program selection and sought mandatory set-asides
for diesel retrofit projects. Some diesel retrofit manufacturers and
related trade and air quality associations proposed new language for
the guidance that would more strongly emphasize the priority of diesel
retrofits. One group favoring priority of diesel retrofits proposed a
number of ways that this could be done including: (1) Developing a
point system for the award of CMAQ dollars to give (a higher) weight to
retrofit projects; (2) utilizing an overmatch where the State share of
funding would be greater for diesel retrofit projects, thereby
necessitating less than a 20 percent match by project sponsors; (3)
dedicating a specific percentage of total CMAQ funds to diesel
retrofits; and (4) requiring States and MPOs, in situations where
projects other than diesel retrofits are selected, to justify their
rationale for choosing other less cost effective projects.
There were other comments proposing variations on the theme of
putting more emphasis on the benefits of diesel retrofit projects
through a ratio or weighting formula, such as those used in
California's Carl Moyer grant program. Some commenters also suggested
that since some diesel retrofit projects reduced both particulate
matter (PM) and ozone precursors, the final guidance should make these
projects eligible for CMAQ funding in ozone nonattainment and
maintenance areas as well.
In general, the comments received supported a balanced approach by
maintaining the guidance language that promotes the idea that cost
effectiveness evaluations should guide the program prioritization and
project selection, with a special focus on diesel retrofit and
congestion reduction, while also continuing to recognize that
successfully improving air quality and reducing congestion depends on a
diverse mixture of activities and efforts.
We believe that the existing language in the interim guidance
provides adequate emphasis related to project priority and selection
for use of CMAQ funds. Therefore, no changes were made to this section.
Our decision not to change this section was based on our understanding
of Congress' intent in this matter. Section 1808 of SAFETEA-LU includes
a ``savings clause'' that states, ``[t]his paragraph is not intended to
disturb the existing authorities and roles of governmental agencies in
making final project selections.'' \2\ The savings clause demonstrates,
in our view, Congress' understanding that many factors go into program
funding decisions, and Congress' intention that the statutory diesel
retrofit priority not disturb existing authorities and roles in project
selection. Thus, under the final guidance, State and local authorities
remain responsible for the selection and prioritization of projects
under the CMAQ program that will best reduce air pollution and
congestion, while, at the same time, fit the local fiscal,
transportation, environment, and political landscape.
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\2\ 23 U.S.C. 149(f)(3)(B) (2005).
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Our conclusion regarding this legislative intent is further
supported by the relevant legislative history. In addressing funding
priority, the Conference Report on H.R. 3 (SAFETEA-LU) states: ``The
priority is further clarified to ensure that governmental agencies
retain existing authorities and roles in making final project
selections. These clarifications to the original Senate priority
language are intended to retain needed flexibility in utilizing CMAQ
funds while providing States with direction to focus on cost-
effectiveness as an important consideration in distributing program
funds.'' H.R. Rep. No. 109-203, at H7462 (July 28, 2005)(Conf. Rep.).
In addition, a subsequent section of the Conference Report, Priorities
Provision in Diesel Retrofit, further expands on this point:
``Conferees expect that other priorities can still be pursued with
applicable funds. Priority is not absolute and exclusive. That is one
reason why the paragraph also includes language establishing that this
paragraph is not intended to disturb existing authorities and roles in
project selections.'' H.R. Rep. No. 109-203, at H7467 (July 28, 2005)
(Conf. Rep.).
The statutory language and legislative history also support the
FHWA's decision declining to make changes proposed in a September 19,
2007, letter to the Office of Management and Budget (OMB) by Senators
Carper, Clinton, Isakson, and Voinovich, which we have placed in the
docket. The letter requests that additional language be inserted in the
final guidance to create a presumption requiring diesel retrofit
projects to be funded first, and, further, requiring States and MPOs
funding other than diesel retrofit projects to publish written
justification for their selections. In addition, the letter requests
revision of the definition of ``cost effective'' in the final guidance,
by limiting that term to the cost per ton of emission reductions by
pollutant.
In our view, the requested changes would remove or greatly diminish
the authority of States and MPOs to make final project selections. The
plain language of the ``savings clause,'' as well as that provision's
legislative history, discussed above, do not support additional limits
on project selection or the imposition of a publication burden on
States or MPOs. Adoption of the requested presumption would also limit
the variety of eligible CMAQ projects and programs permitted under the
statute (see 23 U.S.C. 149(c)). In addition, the requested revision of
the definition of ``cost-effective'' would diminish the authority of
States and MPOs to select a mix of project and program activities that
best reflect the air quality and congestion challenges in their local
areas.
The final guidance does, however, encourage States and local
agencies to take the priority language into account when selecting and
funding their CMAQ projects. One good example of how this might be
undertaken is an outreach effort initiated by Oregon's Rogue Valley
Metropolitan Planning Organization (RVMPO), which sent a letter to 10
private companies within the Rogue Valley community to initiate a
conversation about using Federal funding for diesel retrofits by
inviting them to a diesel retrofit workshop to discuss how retrofits
could benefit the various companies and improve air quality in the
area.
Section V. Annual Apportionments of CMAQ Funds to States
Two comments called for a set-aside of CMAQ funds for diesel
retrofit projects. Citing the importance of diesel retrofit projects,
the respondents contended that a predetermined amount or percentage
share of CMAQ apportionments should be reserved solely for diesel
retrofits.
The FHWA has neither the statutory authority nor the administrative
discretion to establish or enforce such a
[[Page 62364]]
set-aside. Funding under the CMAQ program is apportioned to the States
after a limited number of takedowns (e.g., 2 percent for State Planning
and Research (SP&R)). Other than this very limited amount of CMAQ set-
aside, the vast majority of remaining apportioned funds is available to
the States at their discretion, provided general project eligibility
requirements are met.
Two comments were received supporting a change in the final
guidance that would allow a 100 percent Federal share for diesel
projects. Respondents asserted that the additional Federal-aid funding
would serve as a financial incentive to generate greater interest in
diesel retrofit projects. As with the creation of new set-asides, the
FHWA lacked statutory authority to increase the Federal match on CMAQ
projects when these comments were received. However, subsequent
enactment of the Energy Independence and Security Act of 2007, Public
Law 110-140 (December 20, 2007) authorizes an increase in the Federal
share of CMAQ funding up to 100 percent, at the discretion of the State
for CMAQ projects obligated in FY 2008 and FY 2009.\3\
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\3\ ``CMAQ PROJECTS--The Federal share payable on account of a
project or program carried out under section 149 with funds
obligated in fiscal year 2008 or 2009, or both, shall be not less
than 80 percent and, at the discretion of the State, may be up to
100 percent of the cost thereof.'' Sec. 1131(2).
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Section VI. Geographic Areas That Are Eligible To Use CMAQ Funds
Several respondents requested clarification of the definition of
ozone nonattainment areas, largely preferring removal of the qualifiers
``one-hour'' and ``eight-hour'' ozone. These comments were submitted in
apparent anticipation of possible changes arising from recent court
decisions that may or may not reinstate some of the requirements
attributed to former one-hour ozone areas. In view of the uncertainties
surrounding this matter, we have decided not to revise the definitions
at this time.
In addition, similar comments were submitted in favor of
consolidating the references to the two particulate matter terms. We
have consolidated the terms in a few sections of the final guidance to
avoid confusion between the two qualifiers for designated ozone
nonattainment areas. However, we have done so only where the qualifier
was not necessary, i.e., where the plain term ``ozone nonattainment
area'' was sufficient. References to both one-hour and eight-hour ozone
in other sections were included by necessity. For example, in outlining
our treatment of CMAQ eligibility for the former one-hour areas where
eight-hour ozone designations were not forthcoming, we discussed the
areas separately and, in turn, used the two distinct terms. We have
retained this discussion in the final guidance. As for the treatment of
the two terms for particulate matter--PM-2.5 and PM-10--the interim
guidance did not make a distinction between the two levels of the
pollutant, and we will retain use of the singular term ``particulate
matter'' or ``PM'' in the final guidance.
One respondent made a case for modifying CMAQ geographic
eligibility to include attainment areas, based on the need to provide
resources to areas so they might avoid slipping into nonattainment
status (i.e., use of the program as a preventive measure). While the
commenter provides a compelling argument for application of CMAQ
funding in attainment areas, and while there may be merit to such an
extension of the program, the statute is clear that CMAQ funding is
restricted to areas that are or were designated as nonattainment for
ozone, carbon monoxide, or particulate matter (23 U.S.C. 149(a)). FHWA
does not have the authority to make such a discretionary modification
to fundamental, statutory eligibility requirements. Only those areas
attaining the National Ambient Air Quality Standards (NAAQS) that are
identified by Environmental Protection Agency (EPA) as maintenance
areas or required to file maintenance plan documentation are eligible
for CMAQ investments.
Section VII. Project Eligibility Provisions
A number of respondents commented on the continuation of the 3-year
limit on using CMAQ funds for operating costs, with responses both
favoring the limit and calling for an end to this aspect of program
eligibility.
The 3-year limit on operating costs has been retained in the final
guidance. The FHWA discussed our preference for a limitation on using
CMAQ funds for operational support in the interim guidance. We continue
to look upon long-term, limitless, operational support as a practice
contrary to 23 U.S.C. 116, which places the responsibility for
maintenance of transportation resources on States. Ending the 3-year
limit for operational support would be akin to shifting this
maintenance role to the Federal level. The focus of the CMAQ program is
to provide new or expanded transportation resources that provide an air
quality benefit, not the long-term continuation and support of existing
services.
One respondent called for the establishment of CMAQ eligibility for
transit station rehabilitations. The commenter discussed the benefits
of projects that seek to renovate or restore transit stations and
terminals in need of repair, citing the corresponding increase in
ridership that may ensue.
The FHWA and Federal Transit Administration (FTA) have a
longstanding policy on transit station projects. Those endeavors that
involve existing facilities must expand the carrying capacity of the
station or terminal. This policy--written into the interim guidance--
has been retained in the final guidance. The agencies are aware of the
capital-intensive nature of these projects. No project that attempts to
rebuild, renovate, or restore a major transit hub will be completed
inexpensively. However, given the air quality goals of the CMAQ
program, it is unlikely that restoration projects that leave system
capacity at status quo levels will have any impact on network ridership
and, hence, on clean air efforts. Both FHWA and FTA addressed this
question in a January 2003 memorandum that elaborated on this
policy.\4\
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\4\ This memorandum is available at: http://www.fhwa.dot.gov/environment/cmaqpgs/stationm.htm.
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There were a few comments calling for the clarification of
eligibility for projects that targeted reductions in pollutant
precursors. We have reviewed the interim guidance with such
clarification in mind and have retained the language as written in the
final guidance. The eligibility of ozone and particulate matter
precursors is discussed in a number of areas of the guidance document,
most notably in part A.3., entitled ``Emission Reduction,'' in Section
VII. ``Project Eligibility.''
One respondent called for the further extension of eligibility
guidelines to include capacity expansions for SOV highways. The
commenter asserted that the congestion mitigation aspects of the CMAQ
program provide a rationale for such an expansion of eligibility. Use
of CMAQ funding for the provision of additional capacity available to
SOVs is prohibited by 23 U.S.C. 149(b). This prohibition was part of
the Intermodal Surface Transportation Efficiency Act of 1991, which
created the CMAQ program and has been carried forward with each
reauthorization of transportation legislation, including SAFETEA-LU.
The sole exception allowed is for construction of high-occupancy
vehicle (HOV) facilities available to SOVs only at off-peak times of
the day. The
[[Page 62365]]
exception includes HOV facilities that are available to High Occupancy
Toll (HOT), low-emission, and other vehicles as authorized under 23
U.S.C. 166.
Several commenters objected to the interim guidance's change in
policy disallowing operating assistance for the initial 3 years of
operations of major transit capital investment projects (New Starts).
As stated in the interim guidance, this change was made to be
consistent with FTA's requirement that project sponsors establish long-
term, dedicated sources of non-Federal funds for operating and
maintaining New Starts. The point was made in the comments, however,
that short-term, initial funding with CMAQ has never been a substitute
for the development of long-term, non-Federal sources of funding, but
rather has served as an important supplementary funding source, while
farebox revenue is growing at the start of system operations. FTA
acknowledges that transit agencies that used CMAQ funds for this
purpose in the past also went on to establish sources of non-Federal
funding to support operations for the long term.
Another reason for the proposed change in policy was to return to
the original intent in providing operating assistance under the CMAQ
program. The original intent was to fund demonstrations of new types of
service that could be easily terminated if they were not successful; it
was not to provide operating assistance for permanent infrastructure
projects. However, a review of the types of projects that have received
operating assistance in the recent past indicated a number of projects
that are not ``demonstrations.'' Some were major transit capital
investment projects that did not involve Federal New Starts funding.
The review showed there is a history of supporting permanent
infrastructure as well as the demonstration-type projects that were
originally envisioned. In light of this, it would be inconsistent for
such non-Federal projects to continue receiving CMAQ operating
assistance while the same type of project, if federally funded, was
denied CMAQ operating assistance. Therefore, FTA has decided to return
to the previous policy of allowing operating assistance for New Starts.
The wording in the interim guidance disallowing operating assistance
for New Start projects has been removed.
One respondent suggested language that would prohibit States from
using CMAQ funds to compete with services provided by the private
sector. The Federal-aid highway program is a federally assisted State
program. Consequently, the States exercise sovereignty in their project
selection for all the Federal-aid highway program categories, including
the CMAQ program. Under 23 U.S.C. 145, ``Federal-State Relationship,''
the States' role in determining transportation projects is protected.
Given this statutory support for the States' position, the FHWA has no
authority to amend the guidance with such a restriction, although we
have retained our policy discouraging the use of CMAQ support for
projects which may compete directly with private business services.
Section IX. Program Administration
Several responders commented that the burden of preparing and
submitting the annual reports required for the CMAQ program is
understated and that the schedule for submittals is somewhat
aggressive.
We have outlined the burden or staff time requirements for the
annual reports, as required under the Paperwork Reduction Act, 44
U.S.C. 3501-3520, in a separate Federal Register notice, 71 FR 67420
(November 21, 2006), and in our associated report to OMB. In view of
the comments and further study of the issue, the FHWA has increased the
time estimates for annual reports from the initial 6 hours for filing
the report to a more representative 125 hours, which better reflects
the necessary workload associated with compiling the information for
State DOTs, metropolitan planning organizations, and other units of
government. The final guidance incorporates this change.
As to the schedule for submittals, we have extended the due date
from February to March. This change was included in the interim
guidance; we will retain the extension in the final guidance.
Appendix 4: Comparative Cost-Effectiveness of Potential CMAQ-Funded
Retrofits
There were 16 comments on the treatment of cost-effectiveness data,
specifically as they appeared in Appendix 4 of the interim guidance.
Diesel retrofits manufacturers and related trade and air quality
associations made several recommendations for changes to Appendix 4.
First, they suggested weighing the cost-effectiveness data for
activities that reduce PM with those that reduce NOX and
volatile organic compounds (VOCs) so that the data can be directly
compared to each other. Second, they suggested that we include the
diesel retrofit technologies in Figures A and D along with the projects
that reduce NOX and VOCs. One commenter commissioned a study
indicating that reducing a ton of NOX has health benefits
14.2 times that of VOCs, while reducing a ton of PM has health benefits
of 117.5 times that of VOCs.
State and local agencies and national associations commented that
the data presented in Appendix 4 were based on a dated study of project
types that does not account for improvements in emission reduction
technologies and that includes assumptions that may alter the cost-
effectiveness of projects. Specifically, commenters suggested that the
data for inspection and maintenance programs were no longer accurate.
Commenters also noted that cost-effectiveness is only one of the
selection criteria and should not be the sole basis for decision-
making.
Since the release of the interim guidance, the EPA has released its
own analysis of the cost-effectiveness of diesel engine retrofit
technologies and other mobile source emission reduction activities as
required by the SAFETEA-LU. As such, we have removed Appendix 4 from
our guidance and have instead provided an electronic link to the EPA
guidance document providing this research (http://www.epa.gov/otaq/stateresources/policy/general/420b07006.pdf). We intend to rely on the
EPA data in determining cost effectiveness.
Authority: Sections 1101, 1103 and 1808 of Pub. L. 109-59)
Issued on: October 7, 2008.
Thomas J. Madison, Jr.,
Federal Highway Administrator.
The Congestion Mitigation and Air Quality (CMAQ) Improvement Program
Under the Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users; Final Program Guidance
October, 2008
The guidance contained in this document is intended to be
nonbinding, except insofar as it references existing statutory
requirements. In this guidance document, the use of mandatory language
such as ``shall,'' ``must,'' ``required,'' or ``requirement'' is only
used to reflect statutory or regulatory mandates and does not create
new requirements. This guidance does not create or confer any rights
for or on any person and should not be construed as rules of general
applicability and legal effect.
I. Introduction
The CMAQ program was created under the Intermodal Surface
Transportation Efficiency Act (ISTEA)
[[Page 62366]]
of 1991, continued under the Transportation Equity Act for the 21st
Century (TEA-21), and reauthorized by the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-
LU).\5\ Over $8.6 billion is authorized over the five-year program
(2005-2009), with annual authorization amounts increasing each year
during this period. Through 2005, the program has supported nearly
16,000 transportation projects across the country.
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\5\ Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005).
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This guidance replaces the April 1999 version and provides
information on the CMAQ program, including:
Authorization levels and apportionment factors specific to
the SAFETEA-LU.
Flexibility and transferability provisions available to
States.
Geographic area eligibility for CMAQ funds.
Project eligibility information.
Project selection processes.
Program administration.
Appendices 1-3 provide updated statutory language relating to the
CMAQ program. Appendix 4 provides supplemental information on diesel
retrofit projects.
Information on the current annual apportionment to each State and
an electronic version of this guidance are available at http://www.fhwa.dot.gov/environment/cmaqpgs/index.htm.
This guidance document has been prepared by the Air Quality Team in
FHWA's Office of Environment and Planning.
II. Program Purpose
The purpose of the CMAQ program is to fund transportation projects
or programs that will contribute to attainment or maintenance of the
national ambient air quality standards (NAAQS) for ozone, carbon
monoxide (CO), and particulate matter (PM).
The CMAQ program supports two important goals of the Department of
Transportation: Improving air quality and relieving congestion. While
these goals are not new elements of the program, they are strengthened
in a new provision added to the CMAQ statute by SAFETEA-LU,
establishing priority consideration for cost-effective emission
reduction and congestion mitigation activities when using CMAQ
funding.\6\
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\6\ 23 U.S.C. 149(f)(3) (SAFETEA-LU Sec. 1808(d)).
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Reducing pollution and other adverse environmental effects of
transportation projects and transportation system inefficiency have
been long-standing objectives of the Department of Transportation. The
strategic plans for the Department of Transportation and for the
Federal Highway Administration both include performance measures
specifically focused on reducing air pollution from transportation
facilities. The CMAQ program provides funding for a broad array of
tools to accomplish these goals. By choosing to fund a CMAQ project, a
State or local government can improve air quality and make progress
towards achieving attainment status and ensuring compliance with the
transportation conformity provisions of the Clean Air Act.\7\
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\7\ 42 U.S.C. 7506 Section 176(c).
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Reducing congestion is also a key objective of the Department of
Transportation, and one that has gained increasing attention in the
past several years. The cost of congestion, which negatively affects
the U.S. economy, quality of life, and air quality, has risen
dramatically in the last 25 years despite record levels of
transportation investment. Some economists estimate that the overall
cost of congestion to the U.S. economy approaches $200 billion a year.
As a result, in May 2006, the Department of Transportation announced
its National Strategy to Reduce Congestion on America's Transportation
Network (the Congestion Initiative) that aims to meaningfully reduce
the economic and social costs of congestion on our nation's highways
and in other transportation facilities.\8\ This strategy can be found
at: http://isddc.dot.gov/OLPFiles/OST/012988.pdf.
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\8\ Speaking before the National Retail Federation's annual
conference on May 16, 2006, in Washington, DC, former U.S.
Transportation Secretary Norman Mineta unveiled a new plan to reduce
congestion plaguing America's roads, rails, and airports. The
National Strategy to Reduce Congestion on America's Transportation
Network includes a number of initiatives designed to reduce
transportation congestion. The transcript of these remarks is
available at the following URL: http://www.dot.gov/affairs/minetasp051606.htm.
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Since congestion relief projects also reduce idling, the negative
emissions impacts of ``stop and go'' driving, and the number of
vehicles on the road, they have a corollary benefit of improving air
quality. Based on their emissions reductions, these types of projects,
including investments in improved system pricing and operations, are
eligible for CMAQ funding.\9\ The Department believes State and local
governments can simultaneously reduce the costly impacts of congestion
while also improving air quality.
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\9\ 23 U.S.C. 149(b)(5).
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III. Authorization Levels Under the SAFETEA-LU
A. Authorization Levels
Table 1 shows the SAFETEA-LU CMAQ authorization levels by fiscal
year. The CMAQ funds will be apportioned to States each year based upon
the apportionment factors discussed in Section V.
Table 1--SAFETEA-LU CMAQ Authorization Levels
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Fiscal year authorization Amount authorized
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FY 2005........................................ $1,667,255,304
FY 2006........................................ $1,694,101,866
FY 2007........................................ $1,721,380,718
FY 2008........................................ $1,749,098,821
FY 2009........................................ $1,777,263,247
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B. Equity Bonus
Similar to the minimum guarantee under the TEA-21, the Equity Bonus
in SAFETEA-LU provides additional funding beyond the authorized levels
so that each State receives a minimum percentage of its gas tax
receipts back in the form of Federal-aid funds.\10\
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\10\ 23 U.S.C. 105 (SAFETEA-LU Sec. 1104).
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C. Transferability of CMAQ Funds
Since transportation and environmental program priorities
fluctuate, States may choose to transfer a limited portion of their
CMAQ apportionment to the following Federal-aid highway programs:
Surface Transportation Program (STP), National Highway System (NHS),
Highway Bridge Program (HBP), Interstate Maintenance (IM), Recreational
Trails Program (RTP), and the Highway Safety Improvement Program
(HSIP).
States may transfer CMAQ funds according to the following
provision: An amount not to exceed 50 percent of the quantity of the
State's annual apportionment less the amount the State would have
received if the CMAQ program had been authorized at $1,350,000,000.\11\
For example, if the annual national apportionment is $1.75 billion and
a State receives $10 million more than it would have received if the
national apportionment had been $1.35 billion, the State can transfer
up to $5 million to other programs. Any transfer of such funds must
still be obligated in nonattainment and maintenance areas.\12\ The
amount of transferable funds will differ each year and by State,
depending on overall authorization levels. Each year, the FHWA will
inform States how much, if any, CMAQ funding is
[[Page 62367]]
transferable and will track this movement of CMAQ funds. States also
may transfer CMAQ funds to other Federal agencies. The SAFETEA-LU
provides additional flexibility to complete such transfers when the
receiving Federal agency has entered into an agreement with the State
to undertake an eligible Federal-aid project.\13\ These opportunities
apply to projects that have met all CMAQ eligibility requirements prior
to the transfer.
---------------------------------------------------------------------------
\11\ 23 U.S.C. 126(c).
\12\ 23 U.S.C. 149(b).
\13\ 23 U.S.C. 132(a) (SAFETEA-LU Sec. 1119).
---------------------------------------------------------------------------
D. CMAQ and Innovative Finance: State Infrastructure Bank (SIB) and
Section 129 Loans
Projects with dedicated repayment streams, i.e., a consistent
source of revenue, may be financed with loans through DOT's innovative
finance program as an alternative or supplement to CMAQ funding.
State Infrastructure Banks are State-directed programs that allow
Federal-aid funds to be lent to sponsors of eligible Federal-aid
projects (any project under Title 23 or capital projects, as defined by
49 U.S.C. 5302, are eligible). SIBs may be capitalized with several
Federal-aid highway apportionments including the National Highway
System Program, the Surface Transportation Program, the Highway Bridge
Program, the Interstate Maintenance Program, and the Equity Bonus
program. (Note: CMAQ may not be used to capitalize a SIB, but SIB funds
may be used to finance CMAQ projects). State funds also may be used to
capitalize the SIB. The State then receives repayments over time that
can be directed toward other transportation projects. For example, New
York State was successful in utilizing its SIB to implement two truck
stop electrification projects along the New York State Thruway.
Section 129 loans (23 U.S.C. 129(a)(7)) allow States to use
Federal-aid highway apportionments to make loans for projects with
dedicated revenue streams (this is only applicable to highway, bridge,
tunnel, ferry boat, and ferry terminal projects). A Section 129 loan
may be used to construct a truck stop electrification facility if the
facility is located on the Interstate right-of-way.\14\
---------------------------------------------------------------------------
\14\ 23 U.S.C. 111(d) (SAFETEA-LU Sec. 1412).
---------------------------------------------------------------------------
The SAFETEA-LU establishes a new SIB program under which all States
are authorized to enter into cooperative agreements with the U.S. DOT
to establish infrastructure revolving-funds eligible to be capitalized
with Federal transportation funds.\15\ The key difference between a
Section 129 loan and a SIB is that a Section 129 loan usually provides
financing to an individual project and funding a SIB capitalizes a
financial entity that can assist multiple projects. The two loan
programs have similar maximum allowable terms established by Federal
law:
---------------------------------------------------------------------------
\15\ 23 U.S.C. 190 (SAFETEA-LU Sec. 1602).
---------------------------------------------------------------------------
Both public and private entities are eligible to be
project sponsors.
Repayments begin within 5 years of project completion.
Maximum loan term is 30 years after project authorization
(Section 129) or 30 years after first repayment (SIB).
Interest rate may be set by State, at or below market
rates.
Loans can only be made up to 80 percent of eligible
project costs (Section 129). For SIBs, loans can be made up to 80
percent of eligible project costs (although the non-Federal share can
be reduced under 23 U.S.C. 120(b) if the sliding scale rate is used).
These innovative loan programs can increase the efficiency of
States' transportation investments and significantly leverage Federal
resources by attracting non-Federal public and private investment, and
provide greater flexibility to the States by allowing other types of
project assistance in addition to grant assistance. This type of
financing is important for new technologies or start-up businesses that
may have difficulty finding financing in the private capital markets.
In addition to SIBs and section 129 loans, the FHWA also administers
the Transportation Infrastructure Finance and Innovation Act (TIFIA)
program, which provides Federal credit assistance to large-scale
projects greater than $50 million.
The following example illustrates how a Section 129 loan could work
to construct an idle-reduction facility on an Interstate right-of-way.
A private party intends to build a stationary idle-reduction facility,
and seeks grant funding for it from the State DOT. The idle reduction
facility will eventually earn a profit by charging user fees, but since
the capital costs are high, the private party needs assistance with
financing the initial construction. Instead of providing an outright
grant, the State could offer a loan of Federal-aid funds with flexible
repayment terms. If the facility required $1 million for initial
construction, the State could make a loan at 5 percent over 15 years.
The State could accelerate the payments if the facility was more
successful than expected, and delay repayment if the facility failed to
meet revenue targets. The State could also build in credits for
additional emissions reductions, providing incentives for additional
loans or grants to idle reduction projects. More information on the
DOT's innovative finance program is available at http://www.fhwa.dot.gov/innovativefinance/.
IV. Priority for Use of CMAQ Funds
The SAFETEA-LU directs States and MPOs to give priority to two
categories of funding. First, priority is for diesel retrofits,
particularly where necessary to facilitate contract compliance, and
other cost-effective emission reduction activities, taking into
consideration air quality and health effects. Second, priority is to be
given to cost-effective congestion mitigation activities that provide
air quality benefits.\16\ Other projects also may be cost-effective.
The priority provisions in the statute apply to the portion of CMAQ
funds derived from the application of sections 104(b)(2)(B) and
104(b)(2)(C) of SAFETEA-LU, i.e., the CMAQ apportionment formula. They
do not apply to areas where CMAQ funding has been derived from the
minimum apportionment provisions.
---------------------------------------------------------------------------
\16\ 23 U.S.C. 149(f)(3) (SAFETEA-LU Sec. 1808(d)).
---------------------------------------------------------------------------
In accordance with the SAFETEA-LU,\17\ the EPA has released a
guidance document, The Cost Effectiveness of Heavy-Duty Diesel
Retrofits and Other Mobile Source Emission Reduction Projects and
Programs, which provides cost-effectiveness data on diesel engine
retrofit technologies and other CMAQ-eligible activities. It is
available online at: http://www.epa.gov/cleandiesel/publications.htm.
---------------------------------------------------------------------------
\17\ 23 U.S.C. 149(f)(2)(c) (SAFETEA-LU Sec. 1808(d)).
---------------------------------------------------------------------------
In addition, the Transportation Research Board published The
Congestion Mitigation and Air Quality Improvement Program: Assessing 10
Years of Experience in 2002, providing a number of effectiveness
measures for both emissions and travel activity.
Though SAFETEA-LU establishes these CMAQ investment priorities, it
also retains State and local agencies' authority in project selection.
The law maintains the existing roles and authorities of public
agencies, and substantial shifts in local procedures are not required
by the SAFETEA-LU.\18\ However, project selection should reflect the
positive cost-effectiveness relationships highlighted in the EPA
guidance. State and local transportation programs that implement a
broad array of these cost-effective measures may record a more rapid
rate of progress toward their clean air goals, since many of these
endeavors generate immediate benefits. Local procedures that elevate
[[Page 62368]]
the importance of these efforts in project selection--and rate them
accordingly--may accelerate the drive to air quality attainment.\19\
---------------------------------------------------------------------------
\18\ 23 U.S.C. 149(f)(3)(B) (SAFETEA-LU Sec. 1808(d)).
\19\ U.S. House, Safe, Accountable, Flexible, Efficient
Transportation Equity Act, a Legacy for Users, Conference Report (to
accompany H.R. 3) (109 H. Rpt. 203), Section 1938, Priorities
Provision in Diesel Retrofit.
---------------------------------------------------------------------------
In addition to the SAFETEA-LU priority on cost-effectiveness,
Section 176(c) of the Clean Air Act \20\ requires that the FHWA and FTA
ensure timely implementation of transportation control measures (TCMs)
in applicable State Implementation Plans (SIPs). These and other CMAQ-
eligible projects identified in approved SIPs should receive funding
priority.
---------------------------------------------------------------------------
\20\ 42 U.S.C. 7506 Section 176(c)(2)(B).
---------------------------------------------------------------------------
The FHWA recommends that States and MPOs develop their
transportation/air quality programs using complementary measures that
provide alternatives to single-occupant vehicle (SOV) travel while
improving traffic flow through operational strategies and balancing
supply and demand through pricing, parking management, regulatory, or
other means.
V. Annual Apportionments of CMAQ Funds to States
A. CMAQ Apportionments
Federal CMAQ funds are apportioned annually to each State according
to the severity of its ozone and CO problem (see Appendix 2). The
population of each county (based upon Census Bureau data) that is in a
nonattainment or maintenance area for ozone and/or CO is weighted by
multiplying by the appropriate factor listed in Table 2. PM
nonattainment and maintenance areas and former 1-hour areas, except
those few 1-hour maintenance areas participating in Early Action
Compacts, are not included in the apportionments.
Note: CMAQ apportionments and CMAQ eligibility are two different
things. Some areas in which CMAQ funds may be spent are not included
in the apportionments (see Section VI.).
Table 2--SAFETEA-LU CMAQ Apportionment Factors \21\
----------------------------------------------------------------------------------------------------------------
Classification at the time of annual
Pollutant apportionment Weighting factor
----------------------------------------------------------------------------------------------------------------
Ozone (O3) or (CO).................... Maintenance (these areas had to be 1.0
previously eligible as nonattainment
areas--See Section VI.).
Ozone................................. Subpart 1 (``Basic'')................... 1.0
Ozone................................. Marginal................................ 1.0
Ozone................................. Moderate................................ 1.1
Ozone................................. Serious................................. 1.2
Ozone................................. Severe.................................. 1.3
Ozone................................. Extreme................................. 1.4
CO.................................... Nonattainment........................... 1.0
Ozone and CO.......................... Ozone nonattainment or maintenance and 1.2 x O3 factor
CO nonattainment or maintenance.
All States--minimum apportionment..... 1/2 of 1 percent total annual N/A
apportionment of CMAQ funds.
----------------------------------------------------------------------------------------------------------------
\21\ 23 U.S.C. Sec. 104(b)(2) (SAFETEA-LU 1103(d)).
CMAQ apportionments are calculated based on the nonattainment and
maintenance areas that exist at the time of apportionment. Generally,
apportionments are calculated prior to the beginning of each fiscal
year.
B. Area Designations: Attainment vs. Nonattainment
Each State is guaranteed a minimum apportionment of one-half
percent of the year's total program funding, regardless of whether the
State has any nonattainment or maintenance areas. These flexible funds
or minimum apportionment funds can be used anywhere in the State for
projects eligible for either CMAQ or the STP.\22\
---------------------------------------------------------------------------
\22\ 23 U.S.C. 149(c) (SAFETEA-LU Sec. 1808(c)).
---------------------------------------------------------------------------
The FHWA Budget Division identifies annual apportionments of CMAQ
funds as either mandatory or flexible. All funding is considered
mandatory for States with weighted populations yielding one-half
percent or more of the authorized funds (based on the table above).
Annual CMAQ funding apportioned through the application of sections
104(b)(2)(B) and 104(b)(2)(C) must be used for projects in
nonattainment/maintenance areas.\23\
---------------------------------------------------------------------------
\23\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
States with weighted populations yielding at least some apportioned
value but less than one-half percent of the authorized funds receive
both mandatory and flexible funds to reach the minimum apportionment.
For example, if a State's weighted population yields two tenths of one
percent of the authorized funds, it would receive two tenths of one
percent of the national funds as mandatory funds, and three tenths of
one percent as flexible funds. Thus, 40 percent of the State's funds
would be mandatory and 60 percent would be flexible.
For States with no areas applicable to the apportionment table,
their minimum apportionment, one-half percent, is all flexible funding.
The FHWA reports the breakdown of mandatory and flexible funds by State
in its fiscal year apportionment tables.
C. Apportionments and State Allocation
Notwithstanding the statutory formula for determining the
apportionment amount, the State may use its CMAQ funds in any ozone,
CO, or PM nonattainment or maintenance area. A State is under no
statutory obligation to allocate CMAQ funds in the same way they are
apportioned. States are encouraged to consult affected MPOs to
determine regional and local CMAQ priorities and work with them to
allocate funds accordingly.
D. Federal Share and State/Local Match Requirements
The Federal share for most CMAQ projects, generally, has been 80
percent. However, under the Energy Independence and Security Act of
2007,\24\ the Federal share for eligible CMAQ projects carried out with
funds obligated in fiscal year 2008 or 2009, or both, may be, at the
discretion of the State, up to 100 percent of the cost of the project
or program.
---------------------------------------------------------------------------
\24\ Pub. L. 110-140, Sect. 1131 (December 20, 2007).
---------------------------------------------------------------------------
VI. Geographic Areas That Are Eligible To Use CMAQ Funds
A. Eligible Areas
CMAQ funds may be invested in all ozone, CO, and PM nonattainment
and maintenance areas. Funds also may be
[[Page 62369]]
spent in the few remaining 1-hour ozone maintenance areas (these
counties also have Early Action Compacts in place), since the 1-hour
standard remains in effect for these areas.
Funds also may be used for projects in proximity to nonattainment
and maintenance areas if the benefits will be realized primarily within
the nonattainment or maintenance area. The delineation of an area
considered ``in proximity'' should be discussed with the FHWA and FTA
field offices and elevated to headquarters if necessary.
B. Maintenance Areas
CMAQ funds may be invested in maintenance areas that have approved
maintenance plans under CAA section 175A. In States with ozone or CO
maintenance areas but no nonattainment areas, mandatory CMAQ funds must
be used in the maintenance areas.\25\
---------------------------------------------------------------------------
\25\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
C. Maintenance Plan Requirement, SAFETEA-LU
CMAQ funds may be invested in former 1-hour ozone areas that were
not designated under the 8-hour standard but where the 1-hour standard
has been revoked. Since these areas are required to file maintenance
plans, they are considered eligible for CMAQ funding under provisions
of the SAFETEA-LU.\26\
---------------------------------------------------------------------------
\26\ 23 U.S.C. 149(b) (SAFETEA-LU Sec. 1808(a)).
---------------------------------------------------------------------------
D. Flexible Funds in PM Areas
While States may use flexible CMAQ funding anywhere and for any
CMAQ- or STP-eligible project (see V.B. on minimum apportionment), the
FHWA encourages States and MPOs to evaluate the cost-effectiveness and
benefits to public health of targeting flexible CMAQ funding to
projects that reduce PM. Examples of such projects include implementing
a diesel retrofit or idle reduction program, constructing freight/
intermodal transfer facilities, traffic signalization, or ITS projects
that reduce congestion, paving dirt roads, and purchasing street
sweeping equipment.
VII. Project Eligibility Provisions
A. Project Eligibility: General Conditions
To be eligible for CMAQ funds, a project must be included in the
MPO's current transportation plan and TIP (or the current STIP in areas
without an MPO). In nonattainment and maintenance areas, the project
also must meet the conformity provisions contained in section 176(c) of
the Clean Air Act and the transportation conformity regulations.\27\ In
addition, all CMAQ-funded projects need to complete National
Environmental Policy Act (NEPA) requirements and meet basic eligibility
requirements for funding under titles 23 and 49 of the United States
Code.
---------------------------------------------------------------------------
\27\ 40 CFR Parts 51 and 93
---------------------------------------------------------------------------
The following should guide CMAQ eligibility decisions:
1. Capital Investment
CMAQ funds may be used to establish new or expanded transportation
projects or programs that reduce emissions, including capital
investments in transportation infrastructure, congestion relief
efforts, diesel engine retrofits, or other capital projects.
2. Operating Assistance
There are several general conditions that must be met for operating
assistance to be eligible under the CMAQ program:
a. Operating assistance is limited to new transit services,
intermodal facilities, and travel demand management strategies
(including traffic operation centers); and the incremental cost of
expanding existing transit services.
b. In using CMAQ funds for operating assistance, the intent is to
help start up viable new transportation services that can demonstrate
air quality benefits and eventually cover their costs as much as
possible. Other funding sources should supplement and ultimately
replace CMAQ funds for operating assistance, as these projects no
longer represent additional, net air quality benefits but have become
part of the baseline transportation network.
c. Operating assistance includes all costs of providing new
transportation services, including, but not limited to, labor, fuel,
administrative costs, and maintenance.
d. When CMAQ funds are used for operating assistance, non-Federal
share requirements still apply.
e. With the focus on start-up costs only, operating assistance
under the CMAQ program is limited to three years. The provisions in 23
U.S.C. 116 place responsibilities for maintenance on States.\28\ Since
facility maintenance is akin to operations, three years of CMAQ
assistance provides adequate incentive and flexibility while not
creating a pattern of excessive or even perpetual support. Exceptions
are listed below under VII.D.7 Travel Demand Management, VII.D.8 Public
Education, and VII.D.10 Carpooling and Vanpooling.
---------------------------------------------------------------------------
\28\ 23 U.S.C. Sec. 116.
---------------------------------------------------------------------------
3. Emission Reduction
Air quality improvement is defined by several distinct terms in 23
U.S.C. Sec. 149. These terms include contribution to attainment,
reduction in pollution, air quality benefits, and others. For purposes
of this guidance, the FHWA uses emission reduction to represent this
group of terms. CMAQ-invested projects or programs must reduce CO,
ozone precursor (NOX and VOCs), PM, or PM precursor (e.g.,
NOX) emissions from transportation; these reductions must
contribute to the area's overall clean air strategy and can be
demonstrated by the assessment that is required under this
guidance.\29\ States and MPOs also may consider the ancillary benefits
of eligible projects, including greenhouse gas reductions, congestion
relief, safety, or other elements, when programming CMAQ funds, though
such benefits do not alone establish eligibility.
---------------------------------------------------------------------------
\29\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
4. Planning and Project Development
Activities in support of eligible projects also may be appropriate
for CMAQ investments. Studies that are part of the project development
pipeline (e.g., preliminary engineering) under NEPA are eligible for
CMAQ support, as are FTA's Alternatives Analyses. General studies that
fall outside specific project development do not qualify for CMAQ
funding. Examples of such efforts include major investment studies,
commuter preference studies, modal market polls or surveys, transit
master plans, and others. These activities are eligible for Federal
planning funds.
B. Projects Ineligible for CMAQ Funding
The following projects are ineligible for CMAQ funding:
1. Light-duty vehicle scrappage programs.\30\
---------------------------------------------------------------------------
\30\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
2. Projects that add new capacity for SOVs are ineligible for CMAQ
funding unless construction is limited to high-occupancy vehicle (HOV)
lanes.\31\ This HOV lane eligibility includes the full range of HOV
facility uses authorized under 23 U.S.C. 166, such as high-occupancy
toll (HOT) and low-emission vehicles.
---------------------------------------------------------------------------
\31\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
3. Routine maintenance and rehabilitation projects (e.g.,
replacement-in-kind of track or other equipment, reconstruction of
bridges, stations, and other facilities, and
[[Page 62370]]
repaving or repairing roads) are ineligible for CMAQ funding as they
only maintain existing levels of highway and transit service, and
therefore do not reduce emissions.\32\ Other funding sources, such as
STP and FTA's Section 5307 program, are available for such activities.
---------------------------------------------------------------------------
\32\ 23 U.S.C. 116.
---------------------------------------------------------------------------
4. Administrative costs of the CMAQ program may not be defrayed
with program funds, e.g., support for a State's ``CMAQ Project
Management Office'' is not eligible.
5. Projects that do not meet the specific eligibility requirements
of titles 23 and 49 U.S.C. are ineligible for CMAQ funds.
6. Stand-alone projects to purchase fuel. One exception is listed
below in Section VII.D.3.\33\
---------------------------------------------------------------------------
\33\ 23 U.S.C. 149(k).
---------------------------------------------------------------------------
C. Public-Private Partnerships (PPPs)
In a PPP, a private or non-profit entity's resources replace or
supplement State or local funds and possibly a portion of the Federal-
aid in a selected project. The PPP elements of the program have been
refined over the last two transportation reauthorizations, and these
partnerships have become a critical part of CMAQ.\34\
---------------------------------------------------------------------------
\34\ 23 U.S.C. 149(e).
---------------------------------------------------------------------------
Partnerships should have a legally-binding written agreement in
place between the public agency and the private or non-profit entity
before a CMAQ-funded project may be implemented. These agreements
should be developed under relevant Federal and State law and should
specify the intended use for CMAQ funding; the roles and
responsibilities of the participating entities; and how the disposition
of land, facilities, and equipment will be carried out should the
original terms of the agreement be altered (e.g., due to insolvency,
change in ownership, or other changes in the structure of the PPP).
Public funds should not be invested where a strong public benefit
cannot be demonstrated. Consequently, CMAQ funds should be devoted to
PPPs that benefit the general public by clearly reducing emissions, not
for financing marginal projects. Consistent with the planning and
project selection provisions of the Federal-aid highway program, the
FHWA considers it essential that all interested parties have full,
open, and timely access to the project selection process.
There are several other statutory restrictions and special
provisions on the use of CMAQ funds in PPPs. Eligible costs under this
section should not include costs to fund an obligation imposed on
private sector or non-profit entities under the CAA or any other
Federal law.\35\ However, if the private or non-profit entity is
clearly exceeding its obligations under Federal law, CMAQ funds may be
used for that incremental portion of the project.
---------------------------------------------------------------------------
\35\ 23 U.S.C. 149(e)(5).
---------------------------------------------------------------------------
Eligible non-monetary activities that satisfy the non-Federal match
requirements under the partnership provisions include the following:
Ownership or operation of land, facilities, or other
physical assets
Construction or project management
Other forms of participation approved by the U.S. DOT.
Sharing of total project costs, both capital and operating, is a
critical element of a successful public-private venture, particularly
if the private entity is expected to realize profits as part of the
joint venture. State and local officials are urged to consider a full
range of cost-sharing options when developing a PPP, including a larger
State/local match. For detailed information on cost principles beyond
the scope of this guidance, please consult OMB Circular A-87, which
focuses on determining allowable costs for State, local, and tribal
governments; and 49 CFR part 18, which provides direction on
administering Federal grants to State and local governments.
D. Eligible Projects and Programs
Eligibility information is provided below. Not all possible
requests for CMAQ funding are covered--this section provides examples
of activities eligible for CMAQ funds.
1. Transportation Control Measures (TCMs)
Most of the TCMs included in Section 108 of the CAA, listed below,
are eligible for CMAQ funding. One CAA TCM, programs to encourage
removal of pre-1980 light-duty vehicles, is specifically excluded from
CMAQ eligibility.\36\
---------------------------------------------------------------------------
\36\ 23 U.S.C. 149(b)(1)(A)(i).
---------------------------------------------------------------------------
i. Programs for improved public transit;
ii. Restriction of certain roads or lanes to, or construction of
such roads or lanes for use by, passenger buses or HOV;
iii. Employer-based transportation management plans, including
incentives;
iv. Trip-reduction ordinances;
v. Traffic flow improvement programs that reduce emissions;
vi. Fringe and transportation corridor parking facilities serving
multiple-occupancy vehicle programs or transit service;
vii. Programs to limit or restrict vehicle use in downtown areas or
other areas of emission concentration particularly during periods of
peak use;
viii. Programs for the provision of all forms of high-occupancy,
shared-ride services;
ix. Programs to limit portions of road surfaces or certain sections
of the metropolitan area to the use of non-motorized vehicles or
pedestrian use, both as to time and place;
x. Programs for secure bicycle storage facilities and other
facilities, including bicycle lanes, for the convenience and protection
of bicyclists, in both public and private areas;
xi. Programs to control extended idling of vehicles;
xii. Reducing emissions from extreme cold-start conditions;
xiii. Employer-sponsored programs to permit flexible work
schedules;
xiv. Programs and ordinances to facilitate non-automobile travel,
provision and utilization of mass transit, and to generally reduce the
need for SOV travel, as part of transportation planning and development
efforts of a locality, including programs and ordinances applicable to
new shopping centers, special events, and other centers of vehicle
activity; and
xv. Programs for new construction and major reconstructions of
paths, tracks, or areas solely for the use by pedestrian or other non-
motorized means of transportation when economically feasible and in the
public interest.
2. Extreme Low-Temperature Cold Start Programs
Projects intended to reduce emissions from extreme cold-start
conditions are eligible for CMAQ funding. Such projects include
retrofitting vehicles and fleets with water and oil heaters and
installing electrical outlets and equipment in publicly-owned garages
or fleet storage facilities (See Section VII.C. for a possible
expansion to privately-owned equipment and facilities).
3. Alternative Fuels and Vehicles
Fuel
With the exception of Missouri, Iowa, Minnesota, Wisconsin,
Illinois, Indiana, and Ohio, fuel costs are not an eligible expense as
a stand-alone project.\37\ Only these seven States may use CMAQ funds
to purchase the alternative fuels defined in section 301 of the 1992
Energy Policy Act (natural gas, ethanol, etc.) or biodiesel, assuming
such projects meet
[[Page 62371]]
other applicable eligibility requirements noted in Section VII.B.
above.
---------------------------------------------------------------------------
\37\ SAFETEA-LU, Sec. 1808(k).
---------------------------------------------------------------------------
Establishing publicly-owned fueling facilities and other
infrastructure needed to fuel alternative-fuel vehicles is an eligible
expense, unless privately-owned fueling stations are in place and
reasonably accessible. Additionally, CMAQ funds may support converting
a private fueling facility to support alternative fuels through a
public-private partnership agreement (See Section VII.C.).
Non-Transit Vehicles
CMAQ funds may be used to purchase publicly-owned alternative fuel
vehicles, including passenger vehicles, refuse trucks, street cleaners,
and others. Costs associated with converting fleets to run on
alternative fuels are also eligible. When private vehicles are
purchased, only the cost difference between the alternative fuel
vehicles and comparable conventional fuel vehicles is eligible. Such
vehicles should be fueled by one of the alternative fuels identified in
section 301 of the 1992 Energy Policy Act or biodiesel. Eligible
projects also include alternatives to diesel engines and vehicles.
Hybrid Vehicles
Although not defined by the Energy Policy Act of 1992 as
alternative fuel vehicles, certain hybrid vehicles that have lower
emissions rates than their non-hybrid counterparts may be eligible for
CMAQ investment. Hybrid passenger vehicles must meet EPA's low
emissions and energy efficiency requirements for certification under
the HOV exception provisions of the SAFETEA-LU to be eligible for CMAQ
funding.\38\
---------------------------------------------------------------------------
\38\ 23 U.S.C. 166(e) (SAFETEA-LU Sec. 1121(a)). The required
rulemaking developed by EPA has been published in the Federal
Register at 72 FR 29102, http://www.epa.gov/fedrgstr/EPA-AIR/2007/May/Day-24/a9821.htm.
---------------------------------------------------------------------------
Projects involving heavier vehicles, including refuse haulers and
delivery trucks, also may be appropriate for program support.
Eligibility should be based on a comparison of the emissions
projections of these larger candidate vehicles and other comparable
models.
4. Congestion Reduction & Traffic Flow Improvements
Traffic flow improvements may include the following:
a. Traditional Improvements
Traditional traffic flow improvements, such as the construction of
roundabouts, HOV lanes, left-turn or other managed lanes, are eligible
for CMAQ funding provided they demonstrate net emissions benefits.
b. Intelligent Transportation Systems
Intelligent Transportation Systems (ITS) projects, such as traffic
signal synchronization projects, traffic management projects, and
traveler information systems, can be effective in relieving traffic
congestion, enhancing transit bus performance, and improving air
quality. The following have the greatest potential for improving air
quality:
Regional multi-modal traveler information systems.
Traffic signal control systems.
Freeway management systems.
Electronic toll-collection systems.
Transit management systems.
Incident management programs.
A lengthier discussion of the benefits associated with various
operational improvements can be found at: http://ops.fhwa.dot.gov/program_areas/programareas.htm.
c. Value/Congestion Pricing
As part of its Congestion Initiative referenced above, the
Department broadly promotes highway congestion pricing and is also
seeking an area-wide demonstration of the effectiveness of congestion
pricing (along with other elements). Congestion pricing is a market-
based mechanism that allows tolls to rise and fall depending on
available capacity and demand. It has gained increasing attention and
popularity in recent years following several highly successful facility
demonstrations in the U.S. and several network wide demonstrations
abroad. Tolls can be charged electronically, thereby eliminating the
need for tollbooths. In addition to the benefits associated with
reducing congestion, revenue is generated that can be used to pay for a
wide range of transportation improvements, including Title 23--eligible
transit services in the newly tolled corridor.
Parking pricing can include time-of-day parking charges that
reflect congested conditions. These strategies should be designed to
influence trip-making behavior and may include charges for using a
parking facility at peak periods, or a range of employer-based parking
cash-out policies that provide financial incentives to avoid parking or
driving alone. Parking pricing integrated with other pricing strategies
is encouraged.
Pricing encompasses a variety of market-based approaches such as:
HOT lanes, or High Occupancy Toll lanes, on which variable
tolls are charged to drivers of low-occupancy vehicles using HOV lanes,
such as the ``FasTrak'' Lanes on I-15 in San Diego and the recently
converted I-394 in Minneapolis in which prices vary dynamically every
two minutes based on traffic conditions
New variably tolled express lanes on existing toll-free
facilities, such as the ``91 Express Lanes'' on State Route 91 in
Orange County, CA
Variable tolls on existing or new toll roads, such as on
the bridges and tunnels operated by the Port Authority of New York and
New Jersey
Network-wide or cordon pricing, such as implemented in
Stockholm, London and Singapore
Usage-based vehicle pricing, such as mileage-based vehicle
taxation being explored by the State of Oregon, or pay-per-mile car
insurance
As with any eligible CMAQ project, value pricing should generate an
emissions reduction. Marketing and outreach efforts to expand and
encourage the use of eligible pricing measures may be funded
indefinitely. Eligible expenses for reimbursement include, but are not
limited to: Tolling infrastructure, such as transponders and other
electronic toll or fare payment systems; small roadway modifications to
enable tolling, marketing, public outreach, and support services, such
as transit in a newly tolled corridor. Innovative pricing approaches
yet to be deployed in the U.S. also may be supported through the Value
Pricing Pilot Program. A more complete discussion of projects currently
underway in the U.S. can be found at: http://ops.fhwa.dot.gov/tolling_pricing/value_pricing/index.htm.
Operating expenses for traffic flow improvements are eligible for
CMAQ funding for three years if they can be shown to produce air
quality benefits, if the expenses are incurred from new or additional
services, and if previous funding mechanisms, such as fares or fees for
services, are not displaced.
Projects or programs that involve the purchase of integrated,
interoperable emergency communications equipment are eligible for CMAQ
funding.\39\
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\39\ 23 U.S.C. 149(b)(6) (SAFETEA-LU Sec. 1808(b)(4)).
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5. Transit Improvements
Many transit projects are eligible for CMAQ funds. The general
guideline for determining eligibility is whether the project increases
capacity and would likely result in an increase in transit ridership
and a potential reduction in congestion. As with other types of CMAQ
projects, there should be a quantified estimate of the project's
[[Page 62372]]
emissions benefits accompanying the proposal.
The FTA administers most transit projects. Once the FTA determines
a project eligible, CMAQ funds will be transferred from the FHWA to the
FTA, and the project will be administered according to the requirements
of the FTA's Urbanized Area Formula Grant Program.\40\ Certain types of
transit projects for which the FTA lacks statutory authority, such as
diesel retrofit equipment for public school bus fleets, are
administered by the FHWA.
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\40\ 49 U.S.C. 5307.
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a. Facilities
New transit facilities (e.g., lines, stations, terminals, transfer
facilities) are eligible if they are associated with new or enhanced
mass transit service. Routine maintenance or rehabilitation of existing
facilities is not eligible, as it does not reduce emissions. However,
rehabilitation of a facility may be eligible if the vast majority of
the project involves physical improvements that will increase capacity.
In such cases there should be supporting documentation showing an
increase in transit ridership that is more than minimal. If the vast
majority of the project involves capacity enhancements, other elements
involving refurbishment and replacement-in-kind also are eligible.
b. Vehicles and Equipment
New transit vehicles (bus, rail, or van) to expand the fleet or
replace existing vehicles are eligible. Transit agencies are encouraged
to purchase vehicles that are most cost-effective in reducing
emissions. Diesel engine retrofits, such as replacement engines and
exhaust after-treatment devices, are eligible if certified or verified
by the EPA or California Air Resources Board (CARB). Routine preventive
maintenance for vehicles is not eligible as it only returns the
vehicles to baseline conditions. Besides diesel engine retrofits, other
transit equipment may be eligible if it represents a major system-wide
upgrade that will significantly improve speed or reliability of transit
service, such as advanced signal and communications systems.
c. Fuel
Fuel, whether conventional or alternative fuel, is an eligible
expense only as part of a project providing operating assistance for
new or expanded transit service under the CMAQ program. This includes
fuels and fuel additives considered diesel retrofit technologies by the
EPA or CARB. See Section VII.D.3 for statutory exceptions for certain
states regarding the purchase of alternative fuel with CMAQ funds.
d. Operating Assistance
Operating assistance to introduce new transit service or expand
existing service is eligible. It may be a new type of service, service
to a new geographic area, or an expansion of existing service providing
additional hours of service or reduced headways. For a service
expansion, only the operating costs of the new increment of service are
eligible. Eligible operating costs include labor, fuel, maintenance,
and related expenses. Operating assistance may be CMAQ-funded for a
maximum of three years. The intent is to support the demonstration of
new services that may prove successful enough to sustain with other
funding sources, and to free up CMAQ funds to generate new air quality
benefits.
e. Transit Fare Subsidies
CMAQ funds may be used to subsidize regular transit fares in an
effort to prevent the NAAQS from being exceeded, but only under the
following conditions: The reduced or free fare should be part of a
comprehensive area-wide program to prevent the NAAQS from being
exceeded. ``Ozone Action'' programs vary in scope around the country,
but they generally include actions that individuals and employers can
take and they are aimed at all major sources of air pollution, not just
transportation. The subsidized fare should be available to the general
public and may not be limited to specific groups. It may only be
offered during periods of elevated pollution when the threat of
exceeding the NAAQS is greatest; it is not intended for the entire
high-ozone season. Finally, the fare subsidy proposal should
demonstrate that the responsible local agencies will combine the
reduced or free fare with a robust marketing program to inform SOV
drivers of other transportation options. Because the fare subsidy is
not strictly a form of operating assistance, it would not be subject to
the three-year limit.
6. Bicycle and Pedestrian Facilities and Programs
Bicycle and pedestrian facilities and programs are included as a
TCM in section 108(f)(1)(A) of the CAA. The following are eligible
projects:
Constructing bicycle and pedestrian facilities (paths,
bike racks, support facilities, etc.) that are not exclusively
recreational and reduce vehicle trips;
Non-construction outreach related to safe bicycle use;
Establishing and funding State bicycle/pedestrian
coordinator positions for promoting and facilitating nonmotorized
transportation modes through public education, safety programs, etc.
(Limited to one full-time position per State) \41\
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\41\ 23 U.S.C. 217(d).
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7. Travel Demand Management
Travel demand management (TDM) encompasses a diverse set of
activities that focuses on physical assets and services that provide
real-time information on network performance and support better
decision-making for travelers choosing modes, times, routes, and
locations. Such projects can help ease congestion and reduce SOV use--
contributing to mobility, while enhancing air quality and saving energy
resources. Similar to ITS and Value Pricing, today's TDM programs seek
to optimize the performance of local and regional transportation
networks. The following activities are eligible if they are explicitly
aimed at reducing SOV travel and associated emissions:
Fringe parking.
Traveler information services.
Shuttle services.
Guaranteed ride home programs.
Market research and planning in support of TDM
implementation.
Carpools, vanpools (see item 10 below).
Traffic calming measures.
Parking pricing.
Variable road pricing.
Telecommuting.
Employer-based commuter choice programs.
CMAQ funds may support capital expenses and up to three years of
operating assistance to administer and manage new or expanded TDM
programs.
Marketing and outreach efforts to expand use of TDM measures may be
funded indefinitely, but only if they are broken out as distinct line
items (see Section VII.D.8. below).
Eligible telecommuting activities include planning, preparing
technical and feasibility studies, and training. Construction of
telecommuting centers and computer and office equipment purchases
should not be supported with CMAQ funds.
8. Public Education and Outreach Activities
The goal of CMAQ-funded public education and outreach activities is
to educate the public, community leaders, and potential project
sponsors about connections among trip making and transportation mode
choices, traffic
[[Page 62373]]
congestion, and air quality. Public education and outreach can help
communities reduce emissions and congestion by inducing drivers to
change their transportation choices. More important, an informed public
is likely to support larger regional measures necessary to reduce
congestion and meet CAA requirements.
A wide range of public education and outreach activities is
eligible for CMAQ funding, including activities that promote new or
existing transportation services, developing messages and advertising
materials (including market research, focus groups, and creative),
placing messages and materials, evaluating message and material
dissemination and public awareness, technical assistance, programs that
promote the Tax Code provision related to commute benefits,\42\ transit
``store'' operations, and any other activities that help forward less-
polluting transportation options.
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\42\ Section 132(f) of the Internal Revenue Code allows
employers to pay their employees, as of November 5, 2007, up to $115
per month for transit and vanpool expenses and up to $215 per month
for qualified parking. 26 U.S.C. 132(f). Each of these benefits is
subject to annual increases based on changes to the Consumer Price
Index. 26 U.S.C. 1(f)(3). Alternately, employers may allow employees
to use their pre-tax income to purchase these commuter benefits.
Employers may also provide a combination of these employer-paid and
employee paid tax-free benefits. For more information, please visit
http://www.commuterchoice.com/.
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Using CMAQ funds, communities have disseminated many transportation
and air quality public education messages, including maintain your
vehicle; curb SOV travel by trip chaining, telecommuting and using
alternate modes; fuel properly; observe speed limits; don't idle your
vehicle for long durations; eliminate ``jack-rabbit'' starts and stops,
and others.
The It All Adds Up to Cleaner Air public education messages and
materials (regarding vehicle maintenance, proper fueling, trip
chaining, and alternate modes) have been successful in raising
awareness, garnering funds and in-kind support, and building coalitions
of diverse groups across the country. These commercial-quality
materials, which were developed in response to requests by State and
local transportation and air agencies, are free and communities are
encouraged to use and build on them. More information is available at
http://www.italladdsup.gov/.
Long-term public education and outreach can be effective in raising
awareness that can lead to changes in travel behavior and ongoing
emissions reductions; therefore, these activities may be funded
indefinitely.
9. Transportation Management Associations
Transportation Management Associations (TMAs) are groups of
citizens, firms, or employers that organize to address the
transportation issues in their immediate locale by promoting rideshare
programs, transit, shuttles, or other measures. TMAs can play a useful
role in brokering transportation services to private employers.
CMAQ funds may be used to establish TMAs provided that they reduce
emissions. Eligible expenses include TMA start-up costs and up to three
years of operating assistance. Eligibility of specific TMA activities
is addressed throughout this guidance.
10. Carpooling and Vanpooling
Eligible activities can be divided into two types of costs:
Marketing (which applies to both carpools and vanpools) and vehicle
(which applies to vanpools only). a. Carpool/vanpool marketing covers
existing, expanded, and new activities designed to increase the use of
carpools and vanpools, and includes purchase and use of computerized
matching software and outreach to employers. Guaranteed ride home
programs are also considered marketing tools. Marketing costs may be
funded indefinitely. b. Vanpool vehicle capital costs include
purchasing or leasing vans for use in vanpools. Eligible operating
costs, limited to three years, include empty-seat subsidies,
maintenance, insurance, administration, and other related expenses.
CMAQ funds should not be used to buy or lease vans that would
directly compete with or impede private sector initiatives. States and
MPOs should consult with the private sector prior to using CMAQ funds
to purchase vans, and if private firms have definite plans to provide
adequate vanpool service, CMAQ funds should not be used to supplant
that service.
Carpooling and vanpooling activities may be funded with up to 100%
federal funding, with certain limitations.\43\
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\43\ 23 U.S.C. 120(c).
---------------------------------------------------------------------------
11. Freight/Intermodal
Projects and programs targeting freight capital costs--rolling
stock or ground infrastructure--are eligible provided that air quality
benefits can be demonstrated.\44\ Freight projects that reduce
emissions fall generally into two categories: Primary efforts that
target emissions directly or secondary projects that reduce net
emissions.
---------------------------------------------------------------------------
\44\ 23 U.S.C. 149(b)(3).
---------------------------------------------------------------------------
Successful primary projects could include new diesel engine
technology or retrofits of vehicles or engines. Eligibility is not
confined to highway projects, but also applies to nonroad mobile
freight projects, such as rail.\45\ See Section VII.D.12. below on
diesel retrofit technology--examples of primary freight projects--and
for information on EPA's guidance and model rule for emissions
reduction credit in the SIP and conformity processes.
---------------------------------------------------------------------------
\45\ 23 U.S.C. 149(b)(3).
---------------------------------------------------------------------------
Secondary projects reduce emissions through shifts in or additions
to infrastructure. Support for an intermodal container transfer
facility may be eligible if the project demonstrates reduced diesel
engine emissions when balancing the drop in truck VMT against the
increase in locomotive or other non-highway activity. Intermodal
facilities, such as inland transshipment ports or near/on-dock rail,
may generate substantial emissions reductions through the decrease in
miles traveled for pre-1986 heavy-duty diesel trucks. This secondary,
indirect effect on truck traffic and the ensuing drop in diesel
emissions help demonstrate eligibility.
The transportation function of these freight/intermodal projects
should be emphasized. Marginal projects that support freight operations
in a very tangential manner are not eligible for CMAQ funding.
Warehouse handling equipment, for example, is not an eligible
investment of program funds. However, equipment that provides a
transportation function or directly supports this function is eligible,
such as railyard switch locomotives or shunters.
12. Diesel Engine Retrofits & Other Advanced Truck Technologies
The SAFETEA-LU places a new emphasis on diesel engine retrofits and
the various types of projects that fall under this broad category.\46\
These efforts are defined as vehicle replacement, repowering (replacing
an engine with a cleaner diesel engine, alternative fuels, etc.),
rebuilding an engine, or other technologies determined by the EPA as
appropriate for reducing emissions from diesel engines.\47\ This latter
point, highlighting developing technologies, establishes a degree of
flexibility and a need for periodic adjustment in the definition by the
EPA. The legislation defines retrofit projects as applicable to both
on-road motor vehicles and nonroad
[[Page 62374]]
construction equipment; the latter must be used in Title 23 projects
based in nonattainment or maintenance areas for either PM or ozone.\48\
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\46\ 23 U.S.C. 149(f)(3) (SAFETEA-LU Sec. 1808(d)).
\47\ 23 U.S.C. 149(f)(2) (SAFETEA-LU Sec. 1808(d)).
\48\ 23 U.S.C. 149(b)(7) (SAFETEA-LU Sec. 1808(b)).
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There are a number of project types in the diesel retrofit area for
which CMAQ funds are eligible. Assuming all other CMAQ criteria are
met, eligible projects include diesel engine replacement; full engine
rebuilding and reconditioning; and purchase and installation of after-
treatment hardware, including particulate matter traps and oxidation
catalysts, and other technologies; and support for heavy-duty vehicle
retirement programs. Project agreements involving replacements of
either engine or full vehicle should include a provision for disposal
of the engine block and a process to verify the retirement of this
equipment.\49\
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\49\ Reimbursement of costs for full-vehicle replacement may be
limited to those elements that lead to emission reductions.
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CMAQ funds may be used to purchase and install emission control
equipment on school buses. (Such projects, generally, should be
administered by FHWA; see VII.D.5, Transit Improvements, above.) In
addition, although CMAQ funds should not be used for the initial
purchase of airport parking lot shuttles, funds may be used for
purchase and installation of after treatment hardware or repowering
(with a hybrid drive train, for example).
Refueling is not eligible as a stand-alone project, but is eligible
if it is required to support the installation of emissions control
equipment, repowering, rebuilding, or other retrofits of non-road
engines.\50\ For example, ultra-low sulfur diesel (ULSD) may be
purchased as part of a project to install diesel particulate filters on
nonroad construction equipment because these devices need ULSD to
function properly. Costs associated with ULSD are eligible for CMAQ
funding only until the standards are effective and the fuel becomes
commonly available through the regional supply and logistics chain,
effectively rendering ULSD the only remaining diesel fuel distributed.
Eligible costs are limited to the difference between standard nonroad
diesel fuel and ULSD.
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\50\ 23 U.S.C. 149(f) (SAFETEA-LU Sec. 1808(d)).
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In addition to equipment and technology, outreach activities that
provide information exchange and technical assistance to diesel owners
and operators on retrofit options are eligible investments. These
projects could include the actual education and outreach program,
construction or acquisition of appropriate buildings, and other efforts
to promote the use of retrofit technologies. Please see Appendix 4 for
more detail on diesel retrofits and the various strategies available in
this developing air quality field.
The FHWA acknowledges that diesel retrofit projects may include
nonroad mobile source endeavors, which traditionally have been outside
the Federal-aid process. However, the SAFETEA-LU clarifies CMAQ
eligibility for nonroad diesel retrofit projects.\51\ Areas that fund
these projects are not required to take credit for the projects in the
transportation conformity process. For areas that want to take credit,
the EPA developed guidance for estimating diesel retrofit emission
reductions and for applying the credit in the SIP and transportation
conformity processes. The guidance can be found at http://www.epa.gov/otaq/stateresources/transconf/policy.htm#retrofit.
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\51\ 23 U.S.C. 149(b)(7) (SAFETEA-LU Sec. 1808(b)).
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In addition to retrofit projects, upgrading long-haul heavy-duty
diesel trucks with advanced technologies, such as idle reduction
devices, cab and trailer aerodynamic fixtures, and single-wide or other
efficient tires, has been demonstrated by the EPA's Smart Way Transport
Partnership Program to reduce NOX emissions and save fuel.
These strategies also are eligible for CMAQ support. Such projects
funded directly by CMAQ that involve the private sector should be part
of a Public-Private Partnership, as discussed in Section VII.C.
13. Idle Reduction
Idle reduction projects that reduce emissions and are located
within, or in proximity to and primarily benefiting, a nonattainment or
maintenance area are eligible for CMAQ investment (The geographic
requirement mainly applies to off-board projects, i.e., truck stop
electrification (TSE) efforts). However, if CMAQ funding is used for an
on-board project (i.e., auxiliary power units, direct fired heaters,
etc.) the vehicle--usually a heavy-duty truck--should travel within, or
in proximity to and primarily benefiting, a nonattainment or
maintenance area.
There have been several instances where operating assistance funds
have been requested for TSE services. CMAQ funding to date for TSE
projects has been limited to capital costs (i.e. deployment of TSE
infrastructure). Operating assistance for TSE projects should not be
funded under the CMAQ program because TSE projects generate their own
revenue stream and therefore should be able to cover all operating
expenses from the accumulated revenue. See Section III.D for
information on innovative financing opportunities available for these
efforts.
The SAFETEA-LU also permits electrification or other idling
reduction facilities and equipment to be constructed or located on
rights-of-way of the Interstate system.\52\ Prior to the enactment of
the SAFETEA-LU, this activity was prohibited.
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\52\ 23 U.S.C. 111(d) (SAFETEA-LU Sec. 1412).
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The EPA issued guidance in January 2004 on methods for calculating
emissions reduction credits in SIPs and in the transportation
conformity process for long-haul truck idle reduction projects. The
guidance can be found at http://www.epa.gov/smartway/idlingimpacts.htm.
14. Training
The SAFETEA-LU provides that States and MPOs may use Federal-aid
funds to support training and educational development for the
transportation workforce.\53\ The FHWA encourages State and local
officials to weigh the air quality benefits of such training against
other cost-effective strategies detailed elsewhere in this guidance
before using CMAQ funds for this purpose. Training funded with CMAQ
dollars should be directly related to implementing air quality
improvements and be approved in advance by the FHWA Division office.
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\53\ 23 U.S.C. 504(e) (SAFETEA-LU Sec. 5204(e)).
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15. Inspection/Maintenance (I/M) Programs
Funds under the CMAQ program may be used to establish either
publicly or privately owned I/M facilities. Eligible activities include
construction of facilities, purchase of equipment, I/M program
development, and one-time start-up activities, such as updating quality
assurance software or developing a mechanic training curriculum. The I/
M program must constitute new or additional efforts,\54\ existing
funding (including inspection fees) should not be displaced, and
operating expenses are eligible for three years.
---------------------------------------------------------------------------
\54\ 23 U.S.C. 149(b).
---------------------------------------------------------------------------
Privately Owned I/M Facilities
In States that rely on privately owned I/M facilities, State or
local I/M program-related administrative costs may be funded under the
CMAQ program as in States that use public I/M facilities. However, CMAQ
support to establish I/M facilities at privately owned stations, such
as service stations
[[Page 62375]]
that own the equipment and conduct emission test-and-repair services,
requires a public-private partnership (See Section VII.C.).
The establishment of ``portable'' I/M programs, including remote
sensing, is also eligible under the CMAQ program, provided that they
are public services, reduce emissions, and do not conflict with
statutory I/M requirements or EPA regulations.
16. Experimental Pilot Projects
State and local organizations have experimented with various types
of transportation services to better meet the travel needs of their
constituents. These ``experimental'' projects may show promise in
reducing emissions, but do not yet have supporting data. The FHWA has
supported and funded some of these projects as demonstrations to
determine their benefits and costs. These experimental pilots are not
intended to bypass the definition of basic project eligibility but seek
to better define the projects' future role in strategies to reduce
emissions.
For a project or program to qualify as an experimental pilot, it
should be defined as a transportation project and be expected to reduce
emissions by decreasing vehicle miles traveled (VMT), fuel consumption,
congestion, or by other factors. The FHWA encourages States and MPOs to
creatively address their air quality problems and to experiment with
new services, innovative financing arrangements, public-private
partnerships, and complementary approaches that use transportation
strategies to reach clean air goals. The CMAQ program may be used to
support a well-conceived project even if the proposal may not fully
meet the eligibility criteria of this guidance.
Given the untried nature of these pilot projects, before-and-after
studies should be completed to determine actual project impacts on air
quality as measured by net emissions reduced. These assessments should
document the project's immediate impacts in addition to long-term
benefits. A schedule for completing the study should be a part of the
project agreement. Completed studies should be submitted to the FHWA
Division office within three years of implementation of the project or
one year after the project's completion, whichever is sooner.
VIII. Project Selection Process--General Conditions
Proposals for CMAQ funding should include a precise description of
the project, providing information on its size, scope, location, and
timetable. Also, an assessment of the project's expected emission
reduction benefits should be completed prior to project selection to
better inform the selection of CMAQ projects (See Below).
A. Air Quality Analysis
1. Quantitative Analyses
Quantified emissions benefits (i.e., emissions reductions) and
disbenefits (i.e., emissions increases) should be included in all
project proposals, except where it is not possible to quantify
emissions benefits (see Qualitative Assessment, below). Benefits and
disbenefits should be included for all pollutants for which the area is
in nonattainment or maintenance status and should include appropriate
precursor emissions. Benefits should be listed in a consistent fashion
(i.e., kg/day) across projects to allow accurate comparison during the
project selection process. Net benefits from all emissions sources
involved should be included in the analysis. For example, in analyzing
a commuter rail project, net benefits would include emissions
reductions from the auto trips avoided, and emissions increases tied to
locomotive operation.
State and local transportation and air quality agencies conduct
CMAQ-project air quality analyses with different approaches, analytical
capabilities, and technical expertise. The SAFETEA-LU encourages State
DOTs and MPOs to consult with State and local air quality agencies
about the estimated emission reductions from CMAQ proposals.\55\
However, while no single method is specified, every effort must be
taken to ensure that determinations of air quality benefits are
credible and based on a reproducible and logical analytical
procedure.\56\
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\55\ 23 U.S.C. 149(e) (SAFETEA-LU Sec. 1808(e)).
\56\ 23 U.S.C. 149(b)(1); (SAFETEA-LU Sec. 1808(b)).
---------------------------------------------------------------------------
2. Qualitative Assessment
Although quantitative analysis of air quality impacts is expected
for almost all project types, an exception will be made when it is not
possible to accurately quantify emissions benefits. In these cases,
qualitative assessments based on reasoned and logical determinations
that the projects or programs will decrease emissions and contribute to
attainment or maintenance of a NAAQS are acceptable.
Public education, marketing, and other outreach efforts, which can
include advertising alternatives to SOV travel, employer outreach, and
public education campaigns, may fall into this category. The primary
benefit of these activities is enhanced communication and outreach that
is expected to influence travel behavior, and thus air quality.
3. Analyzing Groups of Projects
In some situations, it may be more appropriate to examine the
impacts of comprehensive strategies to improve air quality by grouping
projects. For example, transit improvements coupled with demand
management to reduce SOV use in a corridor might best be analyzed
together. Other examples include linked signalization projects, transit
improvements, marketing and outreach programs, and ridesharing programs
that affect an entire region or corridor.
4. Tradeoffs
As noted above, emissions benefits should be calculated for all
pollutants for which an area is in nonattainment or maintenance status.
Some potential projects may lead to benefits for one pollutant and
increased emissions for another, especially when the balance involves
precursors such as NOX and VOC. States and MPOs should
consult with relevant air agencies to weigh the net benefits of the
project.
IX. Program Administration
A. Project Selection--MPO and State Responsibilities
CMAQ projects are selected by the State or the MPO. MPOs, State
DOTs, and transit agencies should develop CMAQ project selection
processes in accordance with the metropolitan and/or statewide planning
process. The selection process should involve State and/or local
transportation and air quality agencies. This selection process
provides an opportunity for States and/or local agencies to present a
case for the selection of eligible projects that will best use CMAQ
funding to meet the requirements and advance the goals of the Clean Air
Act.
The CMAQ project selection process should be transparent, in
writing, and publicly available. The process should identify the
agencies involved in rating proposed projects, clarify how projects are
rated, and name the committee or group responsible for making the final
recommendation to the MPO board or other approving body. The selection
process should also clearly identify the basis for rating projects,
including emissions benefits, cost effectiveness, and any other
ancillary selection factors such as congestion relief, greenhouse gas
reductions, safety, system preservation, access to opportunity,
sustainable development and freight, reduced SOV reliance, multi-modal
benefits, and others. At a minimum,
[[Page 62376]]
projects should be identified by year and proposed funding source.
Close coordination is encouraged between the State and MPO to
ensure that CMAQ funds are used appropriately and to maximize their
effectiveness in meeting the CAA requirements. While the program of
projects is being developed, the State or MPO should consult with FHWA
and FTA to resolve any questions about eligibility. This will ensure
that the projects programmed for CMAQ funding in the TIP are all
eligible.
States and MPOs should fulfill this responsibility so that
nonattainment and maintenance areas are able to make good-faith efforts
to attain and maintain the NAAQS by the prescribed deadlines. State
DOTs and MPOs should consult with State and local air quality agencies
to develop an appropriate project list of CMAQ programming priorities
that will have the greatest impact on air quality. In developing this
list, MPOs and States should evaluate the cost-effectiveness of the
projects and give priority consideration to those that will create the
greatest emissions reductions for the least cost. The SAFETEA-LU calls
out diesel retrofits as one type of cost-effective project to which
priority consideration shall be given. The EPA has conducted a study of
the cost-effectiveness of diesel retrofits in reducing PM,
NOX, and VOC emissions.\57\ In addition, the National
Academy of Science's Transportation Research Board has evaluated the
cost-effectiveness of other CMAQ eligible projects, with a focus on
NOX and HC reductions. This study can be found at http://www.fhwa.dot.gov/environment/cmaqpgs/index.htm. Information on the
cost-effectiveness of CMAQ-eligible projects can be used as a guidepost
in evaluating the different types of projects under consideration by an
MPO or State. However, cost-effectiveness ultimately will depend on
local conditions and project specific factors that affect emission
reductions and costs.
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\57\ More information is available at http://www.epa.gov/cleandiesel/publications.htm.
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B. Federal Agency Responsibilities and Coordination
1. Eligibility Determinations
The FTA determines the eligibility of transit projects, and the
FHWA determines the eligibility of all other projects. The FHWA, FTA,
and EPA field offices should establish and maintain a consultation and
coordination process to review CMAQ funding proposals as needed. While
the eligibility determination is not made jointly, every effort should
be made to satisfy the concerns raised by the agencies' field offices.
The FHWA or FTA field offices may request additional information from
the State or MPO to help determine eligibility. The consultation
process should provide for timely review and handling of CMAQ funding
proposals. The FHWA and FTA headquarters offices are available to
consult with their field offices on eligibility determinations.
2. Program Administration
The FHWA Division offices and the FTA Regional offices are
responsible for administering the CMAQ program. In general, the FHWA
transfers funds to the FTA to administer CMAQ-funded transit projects.
In cases where the FTA lacks statutory authority (e.g., school bus
fleets), the FHWA will administer the transit project. For projects
that involve transit and non-transit elements, such as park-and-ride
lots and intermodal passenger projects, the administering agency is
decided on a case-by-case basis. All other projects are administered by
the FHWA.
3. Tracking Mandatory/Flexible Funds
The FHWA Division office is responsible for tracking obligation of
mandatory and flexible CMAQ funds in appropriate areas (See Section
V.B.).
C. Annual Reports
States should prepare annual reports detailing how CMAQ funds have
been invested. CMAQ reporting is not only useful for the FHWA, the FTA,
and the general public, but maintenance of a cumulative database of all
CMAQ projects is required by SAFETEA-LU. In addition, the annual
reports will be key in developing the CMAQ Evaluation and Assessment, a
major research effort designed to gauge the impact of the program, and
also required by the statute.\58\
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\58\ 23 U.S.C. 149(h) (SAFETEA-LU Sec. 1808(f)).
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CMAQ annual reports should be submitted through the Web-based CMAQ
Tracking System. More information on the CMAQ system is available at:
http://www.fhwa.dot.gov/environment/cmaqpgs/usersguidemail.htm.
The FHWA Division offices, State DOTs, and MPOs should develop a
process for entering and approving the data in a timely manner. This
report should be approved by the FHWA Division office by the first day
of March following the end of the previous Federal fiscal year
(September 30) and cover all CMAQ obligations for that fiscal year.
Thus, State DOTs and MPOs should report the data early enough that the
Division office has time to review and comment on the report. The
report as entered into the CMAQ Tracking System should include:
1. A list of projects funded under CMAQ, in seven main project
categories:
Transit: Facilities, vehicles, and equipment, operating
assistance for new transit service, etc. Include all transit projects
whether administered by the FTA or the FHWA.
Shared Ride: Vanpool and carpool programs and parking for
shared-ride services.
Traffic Flow Improvements: Traffic management and control
services, signalization projects, ITS projects, intersection
improvements, and construction or dedication of HOV lanes.
Demand Management: Trip reduction programs, transportation
management plans, flexible work schedule programs, vehicle restriction
programs.
Pedestrian/Bicycle: Bikeways, storage facilities,
promotional activities.
I/M and other TCMs: Projects not covered by the above
categories.
STP/CMAQ: Projects funded with flexible funds.
For reporting purposes, obligations for all CMAQ-eligible phases
(beginning with the NEPA process) should be reported for the project
they support.
2. The amount of CMAQ funds obligated or deobligated for each
project during the Federal fiscal year. Enter deobligations as a
negative number. (Do not include Advance Construct funds, as these are
not obligations of federal CMAQ funds. Such projects should be reported
later when converted to CMAQ funds.)
3. Emissions benefits (and disbenefits) for each project developed
from project-level analyses. Report projected emissions benefits
expected to occur in the first year that a project is fully
operational, in kilograms reduced per day. Benefits should be reported
the first time a project is entered into the system, and only then to
avoid double counting of benefits. (Because funds may be obligated for
a project over several years, an individual CMAQ project may show up in
reports for multiple years.) Additionally, address all pollutants for
which the area is in nonattainment or maintenance status. Do not enter
emissions benefits for deobligations or projects funded with flexible
funds (STP/CMAQ).
4. Public-private partnerships and experimental pilot projects
should be identified in the system. Transmit electronic versions of
completed before-
[[Page 62377]]
and-after studies for experimental pilot projects to the Division
offices (See Section VII.D.16., Experimental Pilot Projects).
5. Other required information: MPO, nonattainment/maintenance area,
project description.
6. Optional information: TIP, State and/or FMIS project numbers--
highly recommended. Other optional information includes: Greenhouse gas
emission reductions, cost effectiveness, safety, congestion relief, and
other ancillary benefits.
Appendix 1: 23 U.S.C. 149
SAFETEA-LU Changes in Underlined Italics
Sec. 149. Congestion mitigation and air quality improvement
program
(a) Establishment.--The Secretary shall establish and implement
a congestion mitigation and air quality improvement program in
accordance with this section.
(b) Eligible Projects.--Except as provided in subsection (c), a
State may obligate funds apportioned to it under section 104 (b)(2)
for the congestion mitigation and air quality improvement program
only for a transportation project or program if the project or
program is for an area in the State that is or was designated as a
nonattainment area for ozone, carbon monoxide, or particulate matter
under section 107(d) of the Clean Air Act (42 U.S.C. 7407 (d)) and
classified pursuant to section 181(a), 186(a), 188(a), or 188(b) of
the Clean Air Act (42 U.S.C. 7511 (a), 7512 (a), 7513 (a), or 7513
(b)) or is or was designated as a nonattainment area under such
section 107 (d) after December 31, 1997, or is required to prepare,
and file with the Administrator of the Environmental Protection
Agency, maintenance plans under the Clean Air Act (42 U.S.C. 7401 et
seq.) and--
(1)(A)(i) if the Secretary, after consultation with the
Administrator determines, on the basis of information published by
the Environmental Protection Agency pursuant to section 108(f)(1)(A)
of the Clean Air Act (other than clause (xvi)) that the project or
program is likely to contribute to--
(I) The attainment of a national ambient air quality standard;
or
(II) the maintenance of a national ambient air quality standard
in a maintenance area; and
(ii) a high level of effectiveness in reducing air pollution, in
cases of projects or programs where sufficient information is
available in the database established pursuant to subsection (h) to
determine the relative effectiveness of such projects or programs;
or,
(B) in any case in which such information is not available, if
the Secretary, after such consultation, determines that the project
or program is part of a program, method, or strategy described in
such section 108(f)(1)(A);
(2) if the project or program is included in a State
implementation plan that has been approved pursuant to the Clean Air
Act and the project will have air quality benefits;
(3) the Secretary, after consultation with the Administrator of
the Environmental Protection Agency, determines that the project or
program is likely to contribute to the attainment of a national
ambient air quality standard, whether through reductions in vehicle
miles traveled, fuel consumption, or through other factors;
(4) to establish or operate a traffic monitoring, management,
and control facility or program if the Secretary, after consultation
with the Administrator of the Environmental Protection Agency,
determines that the facility or program, including advanced truck
stop electrification systems, is likely to contribute to the
attainment of a national ambient air quality standard; (removed
``or'')
(5) if the program or project improves traffic flow, including
projects to improve signalization, construct high occupancy vehicle
lanes, improve intersections, improve transportation systems
management and operations that mitigate congestion and improve air
quality, and implement intelligent transportation system strategies
and such other projects that are eligible for assistance under this
section on the day before the date of enactment of this paragraph;
(6) if the project or program involves the purchase of
integrated, interoperable emergency communications equipment; or
(7) if the project or program is for--
(A) the purchase of diesel retrofits that are--
(i) for motor vehicles (as defined in section 216 of the Clean
Air Act (42 U.S.C. 7550)); or
(ii) published in the list under subsection (f)(2) for non-road
vehicles and non-road engines (as defined in section 216 of the
Clean Air Act (42 U.S.C. 7550)) that are used in construction
projects that are--
(I) located in nonattainment or maintenance areas for ozone,
PM10, or PM2.5 (as defined under the Clean Air
Act (42 U.S.C. 7401 et seq.)); and
(II) funded, in whole or in part, under this title; or
(B) the conduct of outreach activities that are designed to
provide information and technical assistance to the owners and
operators of diesel equipment and vehicles regarding the purchase
and installation of diesel retrofits.
No funds may be provided under this section for a project which
will result in the construction of new capacity available to single
occupant vehicles unless the project consists of a high occupancy
vehicle facility available to single occupant vehicles only at other
than peak travel times. In areas of a State which are nonattainment
for ozone or carbon monoxide, or both, and for PM-10 resulting from
transportation activities, the State may obligate such funds for any
project or program under paragraph (1) or (2) without regard to any
limitation of the Department of Transportation relating to the type
of ambient air quality standard such project or program addresses.
(c) States Receiving Minimum Apportionment.--
(1) States without a nonattainment area.--If a State does not
have, and never has had, a nonattainment area designated under the
Clean Air Act (42 U.S.C. 7401 et seq.), the State may use funds
apportioned to the State under section 104 (b)(2) for any project in
the State that--
(A) would otherwise be eligible under this section as if the
project were carried out in a nonattainment or maintenance area; or
(B) is eligible under the surface transportation program under
section 133.
(2) States with a nonattainment area.--If a State has a
nonattainment area or maintenance area and receives funds under
section 104 (b)(2)(D) above the amount of funds that the State would
have received based on its nonattainment and maintenance area
population under subparagraphs (B) and (C) of section 104 (b)(2),
the State may use that portion of the funds not based on its
nonattainment and maintenance area population under subparagraphs
(B) and (C) of section 104 (b)(2) for any project in the State
that--
(A) would otherwise be eligible under this section as if the
project were carried out in a nonattainment or maintenance area; or
(B) is eligible under the surface transportation program under
section 133.
(d) Applicability of Planning Requirements.--Programming and
expenditure of funds for projects under this section shall be
consistent with the requirements of sections 134 and 135 of this
title.
(e) Partnerships With Nongovernmental Entities.--
(1) In general.--Notwithstanding any other provision of this
title and in accordance with this subsection, a metropolitan
planning organization, State transportation department, or other
project sponsor may enter into an agreement with any public,
private, or nonprofit entity to cooperatively implement any project
carried out under this section.
(2) Forms of participation by entities.--Participation by an
entity under paragraph (1) may consist of--
(A) Ownership or operation of any land, facility, vehicle, or
other physical asset associated with the project;
(B) cost sharing of any project expense;
(C) carrying out of administration, construction management,
project management, project operation, or any other management or
operational duty associated with the project; and
(D) any other form of participation approved by the Secretary.
(3) Allocation to entities.--A State may allocate funds
apportioned under section 104 (b)(2) to an entity described in
paragraph (1).
(4) Alternative fuel projects.--In the case of a project that
will provide for the use of alternative fuels by privately owned
vehicles or vehicle fleets, activities eligible for funding under
this subsection--
(A) May include the costs of vehicle refueling infrastructure,
including infrastructure that would support the development,
production, and use of emerging technologies that reduce emissions
of air pollutants from motor vehicles, and other capital investments
associated with the project;
(B) shall include only the incremental cost of an alternative
fueled vehicle, as compared to a conventionally fueled vehicle, that
would otherwise be borne by a private party; and
[[Page 62378]]
(C) shall apply other governmental financial purchase
contributions in the calculation of net incremental cost.
(5) Prohibition on federal participation with respect to
required activities.--A Federal participation payment under this
subsection may not be made to an entity to fund an obligation
imposed under the Clean Air Act (42 U.S.C. 7401 et seq.) or any
other Federal law.
(f) Cost-Effective Emission Reduction Guidance.--
(1) Definitions.--In this subsection, the following definitions
apply:
(A) Administrator.--The term `Administrator' means the
Administrator of the Environmental Protection Agency.
(B) Diesel retrofit.--The term `diesel retrofit' means a
replacement, repowering, rebuilding, after treatment, or other
technology, as determined by the Administrator.
(2) Emission reduction guidance.--The Administrator, in
consultation with the Secretary, shall publish a list of diesel
retrofit technologies and supporting technical information for--
(A) Diesel emission reduction technologies certified or verified
by the Administrator, the California Air Resources Board, or any
other entity recognized by the Administrator for the same purpose;
(B) diesel emission reduction technologies identified by the
Administrator as having an application and approvable test plan for
verification by the Administrator or the California Air Resources
Board that is submitted not later that 18 months of the date of
enactment of this subsection;
(C) available information regarding the emission reduction
effectiveness and cost effectiveness of technologies identified in
this paragraph, taking into consideration air quality and health
effects.
(3) Priority.--
(A) In general.--States and metropolitan planning organizations
shall give priority in distributing funds received for congestion
mitigation and air quality projects and programs from apportionments
derived from application of sections 104(b)(2)(B) and 104(b)(2)(C)
to--
(i) diesel retrofits, particularly where necessary to facilitate
contract compliance, and other cost-effective emission reduction
activities, taking into consideration air quality and health
effects; and
(ii) cost-effective congestion mitigation activities that
provide air quality benefits.
(B) Savings.--This paragraph is not intended to disturb the
existing authorities and roles of governmental agencies in making
final project selections.
(4) No effect on authority or restrictions.--Nothing in this
subsection modifies or otherwise affects any authority or
restriction established under the Clean Air Act (42 U.S.C. 7401 et
seq.) or any other law (other than provisions of this title relating
to congestion mitigation and air quality).
(g) Interagency Consultation.--The Secretary shall encourage
States and metropolitan planning organizations to consult with State
and local air quality agencies in nonattainment and maintenance
areas on the estimated emission reductions from proposed congestion
mitigation and air quality improvement programs and projects.
(h) Evaluation and Assessment of Projects.--
(1) In general.--The Secretary, in consultation with the
Administrator of the Environmental Protection Agency, shall evaluate
and assess a representative sample of projects funded under the
congestion mitigation and air quality program to--
(A) determine the direct and indirect impact of the projects on
air quality and congestion levels; and
(B) ensure the effective implementation of the program.
(2) Database.--Using appropriate assessments of projects funded
under the congestion mitigation and air quality program and results
from other research, the Secretary shall maintain and disseminate a
cumulative database describing the impacts of the projects.
(3) Consideration.--The Secretary, in consultation with the
Administrator, shall consider the recommendations and findings of
the report submitted to Congress under section 1110(e) of the
Transportation Equity Act for the 21st Century (112 Stat. 144),
including recommendations and findings that would improve the
operation and evaluation of the congestion mitigation and air
quality improvement program.
SAFETEA-LU Section 1808: Additional Provisions
The following provisions were included in the SAFETEA-LU Section
1808. These provisions do not amend 23 U.S.C. and therefore sunset
when the SAFETEA-LU expires. To avoid confusion, they are presented
here separate from the rest of the statutory text.
(g) Flexibility in the State of Montana.--The State of Montana
may use funds apportioned under section 104(b)(2) of title 23,
United States Code, for the operation of public transit activities
that serve a nonattainment or maintenance area.
(h) Availability of Funds for State of Michigan.--The State of
Michigan may use funds apportioned under section 104(b)(2) of such
title for the operation and maintenance of intelligent
transportation system strategies that serve a nonattainment or
maintenance area.
(i) Availability of Funds for the State of Maine.--The State of
Maine may use funds apportioned under section 104(b)(2) of such
title to support, through September 30, 2009, the operation of
passenger rail service between Boston, Massachusetts, and Portland,
Maine.
(j) Availability of Funds for Oregon.--The State of Oregon may
use funds apportioned on or before September 30, 2009, under section
104(b)(2) of such title to support the operation of additional
passenger rail service between Eugene and Portland.
(k) Availability of Funds for Certain Other States.--The States
of Missouri, Iowa, Minnesota, Wisconsin, Illinois, Indiana, and Ohio
may use funds apportioned under section 104(b)(2) of such title to
purchase alternative fuel (as defined in section 301 of the Energy
Policy Act of 1992 (42 U.S.C. 13211)) or biodiesel.
Appendix 2: 23 U.S.C. 104(b)(2) Apportionment
(2) Congestion mitigation and air quality improvement program.--
(A) In general.--For the congestion mitigation and air quality
improvement program, in the ratio that--
(i) the total of all weighted nonattainment and maintenance area
populations in each State; bears to
(ii) the total of all weighted nonattainment and maintenance
area populations in all States.
(B) Calculation of weighted nonattainment and maintenance area
population.-Subject to subparagraph (C), for the purpose of
subparagraph (A), the weighted nonattainment and maintenance area
population shall be calculated by multiplying the population of each
area in a State that was a nonattainment area or maintenance area as
described in section 149(b) for ozone or carbon monoxide by a factor
of--
(i) 1.0 if, at the time of apportionment, the area is a
maintenance area;
(ii) 1.0 if, at the time of the apportionment, the area is
classified as a marginal ozone nonattainment area under subpart 2 of
part D of title I of the Clean Air Act (42 U.S.C. 7511 et seq.);
(iii) 1.1 if, at the time of the apportionment, the area is
classified as a moderate ozone nonattainment area under such
subpart;
(iv) 1.2 if, at the time of the apportionment, the area is
classified as a serious ozone nonattainment area under such subpart;
(v) 1.3 if, at the time of the apportionment, the area is
classified as a severe ozone nonattainment area under such subpart;
(vi) 1.4 if, at the time of the apportionment, the area is
classified as an extreme ozone nonattainment area under such
subpart;
(vii) 1.0 if, at the time of the apportionment, the area is not
a nonattainment or maintenance area as described in section 149(b)
for ozone, but is classified under subpart 3 of part D of title I of
such Act (42 U.S.C. 7512 et seq.) as a nonattainment area described
in section 149(b) for carbon monoxide; or
(viii) 1.0 if, at the time of apportionment, an area is
designated as nonattainment for ozone under subpart 1 of part D of
title I of such Act (42 U.S.C. 7512 et seq.).
(C) Additional Adjustment for Carbon Monoxide Areas.--If, in
addition to being designated as a nonattainment or maintenance are
for ozone as described in section 149(b), any county within the area
was also classified under subpart 3 of part D of title I of the
Clean Air Act (42 U.S.C. 7512 et seq.) as a nonattainment or
maintenance area described in section 149(b) for carbon monoxide,
the weighted nonattainment or maintenance area population of the
county, as determined under clauses (i) through (vi) or clause
(viii) of subparagraph (B), shall be further multiplied by a factor
of 1.2.
(D) Minimum apportionment.--Notwithstanding any other provision
of this paragraph, each State shall receive a minimum of \1/2\ of 1
percent of the funds apportioned under this paragraph.
(E) Determinations of population.--In determining population
figures for the
[[Page 62379]]
purposes of this paragraph, the Secretary shall use the latest
available annual estimates prepared by the Secretary of Commerce.
Appendix 3: Considerations for Diesel Retrofit Projects
The term diesel retrofit includes any technology or system that
achieves emission reductions beyond that required by the EPA
regulations at the time of engine certification. Assuming all other
criteria are met, eligible diesel retrofit projects include the
replacement of high-emitting vehicles/equipment with cleaner
vehicles/equipment (including hybrid or alternative fuel models),
repowering or engine replacement, rebuilding the engine to a cleaner
standard, the purchase and installation of advanced emissions
control technologies (such as particulate matter traps or oxidation
catalysts) or the use of a cleaner fuel to support eligible nonroad
devices. The legislation defines retrofit projects as applicable to
both on-road motor vehicles and nonroad construction equipment.
Retrofit strategies include:
Emissions Control Technologies
The EPA and the California Air Resources Board (CARB) have
retrofit technology verification programs that evaluate the
performance of advanced emissions control technologies and engine
rebuild kits. CMAQ-funded diesel retrofit projects must use retrofit
technologies that are verified under the EPA's Voluntary Diesel
Retrofit Program or CARB.\59\ A list of EPA-verified technologies is
available at http://www.epa.gov/otaq/retrofit/retroverifiedlist.htm.
CARB's verification program can be found at http://www.arb.ca.gov/diesel/verdev/home/home.htm. In addition, for more detailed
information on the cost-effectiveness of various diesel retrofit
technologies, the EPA's study, ``The Cost-Effectiveness of Heavy-
Duty Diesel Retrofits and Other Mobile Source Emission Reduction
Projects and Programs'' can be found at: http://www.epa.gov/cleandiesel/publications.htm.
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\59\ 23 U.S.C. 149(b)(7) (SAFETEA-LU Sec. 1808(b)).
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Refueling
Refueling is eligible when combined with an overall diesel
retrofit project for which the cleaner fuel is required. For
example, ultra-low sulfur diesel (ULSD) may be purchased as part of
a project to install diesel particulate filters on highway
construction equipment only because these devices require ULSD to
function properly.
Fuel-related technologies identified in EPA's list of retrofit
strategies are eligible only until standards for such clean fuel are
effective. For example, ULSD is eligible for CMAQ only until the
standard is effective. For on-road use, ULSD is mandated for use in
October 2006. According to EPA's regulatory development calendar,
low sulfur diesel (500 ppm of sulfur) will be required for nonroad
use in 2007, while ULSD (15 ppm of sulfur) will be required for
nonroad use in 2010.
Vehicle/Equipment Replacement Projects
Replacement projects occur when older vehicles/equipment are
replaced with cleaner vehicles/equipment before they would have been
removed through normal fleet turnover or attrition. The vehicle or
equipment being replaced should be scrapped or the engine
remanufactured to a cleaner standard. For areas that want to take
credit in the SIP and transportation conformity processes for these
projects, see the EPA's retrofit guidance at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm#retrofit.
Generally, the replacement vehicle or equipment would perform
the same function as the vehicle or equipment that is being replaced
(e.g., an excavator used to dig pipelines or utility trenches would
be replaced by an excavator that continues these duties).
In addition, the vehicle or equipment being replaced would be in
good working order and able to perform the duties of the new vehicle
or equipment. Removing vehicles that no longer function or are at
the end or their useful life will not lead to an emissions
reduction.
Repower or Engine Replacement Projects
Engine replacement projects involve the replacement of an older,
higher emitting engine with a newer, cleaner engine. Engine
replacements can also be combined with emission control
technologies. The engines being replaced should be scrapped or
remanufactured to a cleaner standard. As noted above, for areas that
want to take credit in the SIP and transportation conformity
processes for these projects, see EPA's retrofit guidance at: http://www.epa.gov/otaq/stateresources/transconf/policy.htm#retrofit.
New engines also must be EPA-certified.\60\ For a complete list
of all EPA certified large highway and nonroad engines, please
consult the list at http://www.epa.gov/otaq/certdata.htm.
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\60\ 23 U.S.C. 149(b)(7) (SAFETEA-LU Sec. 1808(b)).
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For more information on diesel retrofits, please see the EPA's
National Clean Diesel Campaign Web site at http://www.epa.gov/cleandiesel/.
[FR Doc. E8-24704 Filed 10-17-08; 8:45 am]
BILLING CODE 4910-22-P