Publication of Final Guidance on the Congestion Mitigation and Air Quality Improvement (CMAQ) Program, 62362-62379 [E8-24704]
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BILLING CODE 4710–10–P
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
Federal Highway
Administration (FHWA), DOT.
ACTION: Notice of publication of final
guidance.
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AGENCY:
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
1 23
U.S.C. 149 (2005).
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effective on December 20, 2007, beyond
the time for submitting comments on
the interim guidance.
FOR FURTHER INFORMATION CONTACT:
Mike Koontz, Office of Natural and
Human Environment, (202) 366–2076,
michael.koontz@dot.gov; or Diane Liff
(202) 366–6203, diane.liff@dot.gov, or
Harold Aikens (202) 366–1373,
harold.aikens@dot.gov, 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 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
https://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: https://www.archives.gov or the
Government Printing Office’s Web page
at https://www.gpoaccess.gov/nara.
An electronic version of the final
CMAQ guidance may be downloaded
from the FHWA Web page at: https://
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 5year 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
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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
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regarding the priority of congestion
relief projects (see comment below
regarding the eligibility of singleoccupant 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
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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.
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
2 23
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U.S.C. 149(f)(3)(B) (2005).
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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
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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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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 onehour 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
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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example, in outlining our treatment of
CMAQ eligibility for the former onehour 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.
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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
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
4 This memorandum is available at: https://
www.fhwa.dot.gov/environment/cmaqpgs/
stationm.htm.
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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 nonFederal 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.
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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, ‘‘FederalState 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 CostEffectiveness of Potential CMAQFunded 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 costeffectiveness 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
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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 costeffectiveness 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 (https://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)
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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 fiveyear 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.
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 https://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.
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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
Reducing pollution and other adverse
environmental effects of transportation
projects and transportation system
inefficiency have been long-standing
objectives of the Department of
5 Public Law 109–59, 119 Stat. 1144 (Aug. 10,
2005).
6 23 U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)).
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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
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: https://
isddc.dot.gov/OLPFiles/OST/
012988.pdf.
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.
7 42
U.S.C. 7506 Section 176(c).
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: https://
www.dot.gov/affairs/minetasp051606.htm.
9 23 U.S.C. 149(b)(5).
8 Speaking
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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
Fiscal year
authorization
FY
FY
FY
FY
FY
2005
2006
2007
2008
2009
................
................
................
................
................
Amount authorized
$1,667,255,304
$1,694,101,866
$1,721,380,718
$1,749,098,821
$1,777,263,247
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
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 Federalaid 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
10 23
U.S.C. 105 (SAFETEA–LU § 1104).
U.S.C. 126(c).
12 23 U.S.C. 149(b).
11 23
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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.
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 Statedirected programs that allow Federalaid 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
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
13 23
U.S.C. 132(a) (SAFETEA–LU § 1119).
14 23 U.S.C. 111(d) (SAFETEA–LU § 1412).
15 23 U.S.C. 190 (SAFETEA–LU § 1602).
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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:
• 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 idlereduction 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 Federalaid 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
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loans or grants to idle reduction
projects. More information on the DOT’s
innovative finance program is available
at https://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.
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 CMAQeligible activities. It is available online
at: https://www.epa.gov/cleandiesel/
publications.htm.
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
16 23
U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)).
U.S.C. 149(f)(2)(c) (SAFETEA–LU § 1808(d)).
18 23 U.S.C. 149(f)(3)(B) (SAFETEA–LU
§ 1808(d)).
17 23
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the importance of these efforts in project
selection—and rate them accordingly—
may accelerate the drive to air quality
attainment.19
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.
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
Pollutant
Classification at the time of annual apportionment
Ozone (O3) or (CO) ...............................................
Maintenance (these areas had to be previously eligible as nonattainment
areas—See Section VI.).
Subpart 1 (‘‘Basic’’) ......................................................................................
Marginal .......................................................................................................
Moderate ......................................................................................................
Serious .........................................................................................................
Severe ..........................................................................................................
Extreme ........................................................................................................
Nonattainment ..............................................................................................
Ozone nonattainment or maintenance and CO nonattainment or maintenance.
1/2 of 1 percent total annual apportionment of CMAQ funds .....................
Ozone .....................................................................
Ozone .....................................................................
Ozone .....................................................................
Ozone .....................................................................
Ozone .....................................................................
Ozone .....................................................................
CO ..........................................................................
Ozone and CO .......................................................
All States—minimum apportionment ......................
21 23
1.0
1.0
1.0
1.1
1.2
1.3
1.4
1.0
1.2 × O3 factor
N/A
U.S.C. § 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
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Weighting factor
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
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)
19 U.S. House, Safe, Accountable, Flexible,
Efficient Transportation Equity Act, a Legacy for
Users, Conference Report (to accompany H.R. 3)
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must be used for projects in
nonattainment/maintenance areas.23
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.
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.
VI. Geographic Areas That Are Eligible
To Use CMAQ Funds
C. Apportionments and State Allocation
A. Eligible Areas
Notwithstanding the statutory formula
for determining the apportionment
amount, the State may use its CMAQ
CMAQ funds may be invested in all
ozone, CO, and PM nonattainment and
maintenance areas. Funds also may be
(109 H. Rpt. 203), Section 1938, Priorities Provision
in Diesel Retrofit.
20 42 U.S.C. 7506 Section 176(c)(2)(B).
22 23 U.S.C. 149(c) (SAFETEA–LU § 1808(c)).
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23 23
U.S.C. 149(b).
L. 110–140, Sect. 1131 (December 20,
24 Pub.
2007).
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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
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
D. Flexible Funds in PM Areas
While States may use flexible CMAQ
funding anywhere and for any CMAQor 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
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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.
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.
3. Emission Reduction
Air quality improvement is defined by
several distinct terms in 23 U.S.C. § 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.
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
2. Projects that add new capacity for
SOVs are ineligible for CMAQ funding
unless construction is limited to highoccupancy 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 highoccupancy toll (HOT) and low-emission
vehicles.
3. Routine maintenance and
rehabilitation projects (e.g.,
replacement-in-kind of track or other
equipment, reconstruction of bridges,
stations, and other facilities, and
29 23
25 23
U.S.C. 149(b).
26 23 U.S.C. 149(b) (SAFETEA–LU § 1808(a)).
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27 40
CFR Parts 51 and 93
28 23 U.S.C. § 116.
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U.S.C. 149(b).
U.S.C. 149(b).
31 23 U.S.C. 149(b).
30 23
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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.
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
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
Partnerships should have a legallybinding 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
U.S.C. 116.
U.S.C. 149(k).
34 23 U.S.C. 149(e).
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.
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
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-
32 23
33 23
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U.S.C. 149(b)(1)(A)(i).
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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 nonmotorized 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 privatelyowned 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
37 SAFETEA–LU,
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other applicable eligibility requirements
noted in Section VII.B. above.
Establishing publicly-owned fueling
facilities and other infrastructure
needed to fuel alternative-fuel vehicles
is an eligible expense, unless privatelyowned fueling stations are in place and
reasonably accessible. Additionally,
CMAQ funds may support converting a
private fueling facility to support
alternative fuels through a publicprivate 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
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:
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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
38 23 U.S.C. 166(e) (SAFETEA–LU § 1121(a)). The
required rulemaking developed by EPA has been
published in the Federal Register at 72 FR 29102,
https://www.epa.gov/fedrgstr/EPA-AIR/2007/May/
Day-24/a9821.htm.
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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: https://
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-ofday parking charges that reflect
congested conditions. These strategies
should be designed to influence tripmaking behavior and may include
charges for using a parking facility at
peak periods, or a range of employerbased 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
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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 payper-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:
https://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
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
39 23 U.S.C. 149(b)(6) (SAFETEA–LU
§ 1808(b)(4)).
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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.
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.
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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
40 49
U.S.C. 5307.
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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 areawide 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;
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• 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
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
41 23
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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.
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 https://
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.
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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 https://
www.commuterchoice.com/.
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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
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.
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.
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/ondock 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
45 23
U.S.C. 149(b)(3).
U.S.C. 149(f)(3) (SAFETEA–LU § 1808(d)).
47 23 U.S.C. 149(f)(2) (SAFETEA–LU § 1808(d)).
43 23
U.S.C. 120(c).
44 23 U.S.C. 149(b)(3).
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construction equipment; the latter must
be used in Title 23 projects based in
nonattainment or maintenance areas for
either PM or ozone.48
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 aftertreatment 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
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 standalone 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.
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,
48 23
U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)).
of costs for full-vehicle
replacement may be limited to those elements that
lead to emission reductions.
50 23 U.S.C. 149(f) (SAFETEA–LU § 1808(d)).
49 Reimbursement
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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
https://www.epa.gov/otaq/
stateresources/transconf/
policy.htm#retrofit.
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 PublicPrivate 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.
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
https://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.
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.
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
52 23
U.S.C. 111(d) (SAFETEA–LU § 1412).
U.S.C. 504(e) (SAFETEA–LU § 5204(e)).
54 23 U.S.C. 149(b).
53 23
51 23
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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.
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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
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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
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
55 23
56 23
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U.S.C. 149(b)(1); (SAFETEA–LU § 1808(b)).
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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,
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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 costeffective project to which priority
consideration shall be given. The EPA
has conducted a study of the costeffectiveness 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 costeffectiveness of other CMAQ eligible
projects, with a focus on NOX and HC
reductions. This study can be found at
https://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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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
57 More information is available at https://
www.epa.gov/cleandiesel/publications.htm.
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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
CMAQ annual reports should be
submitted through the Web-based
CMAQ Tracking System. More
information on the CMAQ system is
available at: https://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
58 23
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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 projectlevel 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-
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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.
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Appendix 1: 23 U.S.C. 149
SAFETEA–LU Changes in Underlined Italics
§ 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
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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
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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
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(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
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16:42 Oct 17, 2008
Jkt 217001
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.
PO 00000
Frm 00133
Fmt 4703
Sfmt 4703
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
E:\FR\FM\20OCN1.SGM
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Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Notices
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. CMAQfunded 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 https://
www.epa.gov/otaq/retrofit/
retroverifiedlist.htm. CARB’s verification
program can be found at https://
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: https://www.epa.gov/
cleandiesel/publications.htm.
mstockstill on PROD1PC66 with NOTICES
Refueling
U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)).
VerDate Aug<31>2005
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: https://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 https://www.epa.gov/otaq/
certdata.htm.
For more information on diesel retrofits,
please see the EPA’s National Clean Diesel
Campaign Web site at https://www.epa.gov/
cleandiesel/.
[FR Doc. E8–24704 Filed 10–17–08; 8:45 am]
BILLING CODE 4910–22–P
Refueling is eligible when combined with
an overall diesel retrofit project for which the
cleaner fuel is required. For example, ultralow 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.
59 23
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:
https://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.
16:42 Oct 17, 2008
Jkt 217001
DEPARTMENT OF TRANSPORTATION
Maritime Administration
Reports, Forms and Recordkeeping
Requirements; Agency Information
Collection Activity Under OMB Review
Maritime Administration, DOT.
Notice and request for
comments.
AGENCY:
ACTION:
SUMMARY: In compliance with the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.), this notice
announces that the Information
Collection abstracted below has been
forwarded to the Office of Management
60 23
PO 00000
U.S.C. 149(b)(7) (SAFETEA–LU § 1808(b)).
Frm 00134
Fmt 4703
Sfmt 4703
62379
and Budget (OMB) for review and
approval. The nature of the information
collection is described as well as its
expected burden. The Federal Register
Notice with a 60-day comment period
soliciting comments on the following
collection of information was published
on August 8, 2008, and comments were
due by October 7, 2008.
No comments were received.
DATES: Comments should be submitted
on or before November 19, 2008.
FOR FURTHER INFORMATION CONTACT:
Thomas Harrelson, Maritime
Administration, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
Telephone: 202–366–5515; or E-Mail:
tom.harrelson@dot.gov. Copies of this
collection also can be obtained from that
office.
SUPPLEMENTARY INFORMATION: Maritime
Administration (MARAD).
Title: Monthly Report of Ocean
Shipments Moving under Export-Import
Bank Financing.
OMB Control Number: 2133–0013.
Type of Request: Extension of
currently approved collection.
Affected Public: Shippers subject to
Export/Import Bank financing.
Form Numbers: MA–518.
Abstract: 46 U.S.C. 55304, requires
MARAD to monitor and enforce the
U.S.-flag shipping requirements relative
to the loans/guarantees extended by the
Export-Import Bank (EXIMBANK) to
foreign borrowers. Public Resolution 17
requires that shipments financed by
EXIMBANK and that move by sea, must
be transported exclusively on U.S.-flag
registered vessels unless a waiver is
obtained from MARAD.
Annual Estimated Burden Hours: 169
hours.
Addresses: Send comments to the
Office of Information and Regulatory
Affairs, Office of Management and
Budget, 725 17th Street, NW.,
Washington, DC 20503, Attention
MARAD Desk Officer.
Comments Are Invited on: (a)
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
(b) the accuracy of the agency’s estimate
of the burden of the proposed
information collection; (c) ways to
enhance the quality, utility and clarity
of the information to be collected; and
(d) ways to minimize the burden of the
collection of information on
respondents, including the use of
automated collection techniques or
other forms of information technology.
A comment to OMB is best assured of
having its full effect if OMB receives it
within 30 days of publication.
E:\FR\FM\20OCN1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 203 (Monday, October 20, 2008)]
[Notices]
[Pages 62362-62379]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-24704]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\1\ 23 U.S.C. 149 (2005).
FOR FURTHER INFORMATION CONTACT: Mike Koontz, Office of Natural and
Human Environment, (202) 366-2076, michael.koontz@dot.gov; or Diane
Liff (202) 366-6203, diane.liff@dot.gov, or Harold Aikens (202) 366-
1373, harold.aikens@dot.gov, 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
---------------------------------------------------------------------------
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 https://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: https://
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: https://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.
---------------------------------------------------------------------------
\2\ 23 U.S.C. 149(f)(3)(B) (2005).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\4\ This memorandum is available at: https://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 (https://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.
---------------------------------------------------------------------------
\5\ Public Law 109-59, 119 Stat. 1144 (Aug. 10, 2005).
---------------------------------------------------------------------------
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 https://
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)).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\7\ 42 U.S.C. 7506 Section 176(c).
---------------------------------------------------------------------------
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: https://isddc.dot.gov/OLPFiles/OST/012988.pdf.
---------------------------------------------------------------------------
\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: https://www.dot.gov/affairs/
minetasp051606.htm.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\9\ 23 U.S.C. 149(b)(5).
---------------------------------------------------------------------------
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
------------------------------------------------------------------------
Fiscal year authorization Amount authorized
------------------------------------------------------------------------
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
------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ 23 U.S.C. 105 (SAFETEA-LU Sec. 1104).
---------------------------------------------------------------------------
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 https://
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.
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\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: https://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\
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\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.
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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.
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\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\
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\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.
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\24\ Pub. L. 110-140, Sect. 1131 (December 20, 2007).
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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\
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\25\ 23 U.S.C. 149(b).
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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\
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\26\ 23 U.S.C. 149(b) (SAFETEA-LU Sec. 1808(a)).
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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.
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\27\ 40 CFR Parts 51 and 93
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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.
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\28\ 23 U.S.C. Sec. 116.
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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.
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\29\ 23 U.S.C. 149(b).
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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\
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\30\ 23 U.S.C. 149(b).
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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.
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\31\ 23 U.S.C. 149(b).
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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.
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\32\ 23 U.S.C. 116.
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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\
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\33\ 23 U.S.C. 149(k).
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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\
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\34\ 23 U.S.C. 149(e).
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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 sh
