Congestion Mitigation and Air Quality Improvement Program Interim Guidance

Victor M. Mendez
Federal Highway Administration
November 12, 2013

[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Notices]
[Pages 67442-67445]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-26795]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[FHWA Docket No. FHWA-2013-0023]


Congestion Mitigation and Air Quality Improvement Program Interim 
Guidance

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

ACTION: Notice of Interim Guidance; Request for Comment.

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SUMMARY: The FHWA is issuing Interim Guidance on the Congestion 
Mitigation and Air Quality Improvement (CMAQ) Program (Interim 
Guidance). The Interim Guidance revises CMAQ Program Guidance issued in 
October 2008 (``2008 CMAQ Program Guidance'').\1\ The revisions in the 
Interim Guidance explain changes to the CMAQ Program as a result of the 
enactment of the Moving Ahead for Progress in the 21st Century Act 
(MAP-21). The Interim Guidance also contains changes to clarify the 
2008 CMAQ Program Guidance. Because the Interim Guidance contains 
information needed for grantees to plan CMAQ-funded projects and use 
CMAQ funds during FY 2013, the Interim Guidance is effective on the 
date of the publication of this notice in the Federal Register. By this 
notice, the FHWA invites public comments on the changes contained in 
the Interim Guidance, which is available electronically at the docket 
established for this notice. The FHWA will consider all comments 
submitted to the Docket and will publish a notice of the availability 
of the resulting final guidance in the Federal Register.
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    \1\ See http://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/2008_guidance/ guidance/.

DATES: This Interim Guidance is effective November 12, 2013. Comments 
must be received on or before January 13, 2014. Late comments will be 
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considered to the extent practicable.

ADDRESSES: Mail or hand deliver comments to the U.S. Department of 
Transportation, Dockets Management Facility, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590, or fax comments to (202) 493-
2251. Alternatively, comments may be submitted to the Federal 
eRulemaking portal at http://www.regulations.gov. All comments must 
include the docket number that appears in the heading of this document. 
All comments received will be available for examination and copying at 
the above address from 9 a.m. to 5 p.m., e.t., Monday through

[[Page 67443]]

Friday, except Federal holidays. Those desiring notification of receipt 
of comments must include a self-addressed, stamped postcard or you may 
print the acknowledgment page that appears after submitting comments 
electronically. Anyone is able to search the electronic form of all 
comments in any one of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, or labor union). Anyone may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70, Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For questions about the program 
discussed herein, contact Michael Koontz, CMAQ Program Manager, FHWA 
Office of Natural Environment, (202) 366-2076, or via email at 
michael.koontz@dot.gov. For legal questions, please contact Janet 
Myers, Assistant Chief Counsel for Program Legal Services, FHWA Office 
of the Chief Counsel, (202) 366-2019, or via email at 
janet.myers@dot.gov. Business hours for the FHWA are from 8:00 a.m. to 
4:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing

    You may submit or retrieve comments online through the Federal 
eRulemaking portal at: www.regulations.gov. The Web site is available 
24 hours every day 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 from 
Office of the Federal Register's home page at: http://www.archives.gov/federal_register and the Government Printing Office's Web page at: 
http://www.gpoaccess.gov.

I. Background

    The CMAQ Program was established 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) and the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) (Pub. L. 109-59; Aug. 10, 2005). Through 2012, 
the program supported more than 28,000 transportation projects, 
providing resources to the transportation environmental community in 
every State across the country. In the most recent authorization of the 
Federal-aid highway program, Congress amended the CMAQ Program, and 
authorized funding to support eligible CMAQ projects in FY 2013 and FY 
2014 (see sections 1101, 1105 and 1113 of the MAP-21).\2\ More than 
$2.2 billion in total CMAQ apportionments to the States are estimated 
for each year of the authorization. The total apportioned Federal-aid 
highway program is authorized at just under $38 billion for each year 
of the MAP-21 authorization.
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    \2\ Section 149(m) of title 23, United States Code, states that 
``[a] State may obligate funds apportioned under section 104(b)(2) 
[of Title 23]. . . .'' The FHWA has interpreted the reference to 
section 104(b)(2), which is the Surface Transportation Program, as a 
drafting error. Under prior law, section 104(b)(2) was the funding 
authorization for the CMAQ program, and MAP-21 placed CMAQ funding 
in section 104(b)(4). The FHWA intends to apply section 149(m) as 
though the reference read ``funds apportioned under section 
104(b)(4). . . .''
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    This Interim Guidance updates and replaces the 2008 CMAQ Program 
Guidance, which covers the program as it existed under SAFETEA-LU.\3\ 
The Interim Guidance continues to focus on project eligibility 
information, geographic area eligibility, the flexibility and 
transferability provisions available to States, requirements for annual 
reporting of CMAQ program obligations, and a discussion of the 
pertinent program and administrative responsibilities of Federal, 
State, and Metropolitan Planning Organizations (MPOs), transit 
agencies, and private sector project sponsors. Importantly, this 
Interim Guidance includes a number of discussions and interpretations 
of new or emphasized areas in the MAP-21. For example, the Interim 
Guidance provides information on the focus that MAP-21 continues from 
SAFETEA-LU on diesel retrofits and overall diesel emissions mitigation. 
In addition, the Interim Guidance outlines the policies behind the new 
priority set-aside for PM2.5 obligations created by MAP-21 
and describes implementing procedures. The Interim Guidance outlines 
performance management requirements for both congestion and emissions 
measures required by section 1203 (23 U.S.C. 150) of MAP-21. The MAP-21 
also enhanced the SAFETEA-LU focus on project cost-effectiveness; these 
related issues are discussed in the Interim Guidance, as well. In 2012, 
the Environmental Protection Agency (EPA) revoked the 1997 8-hour ozone 
standard for transportation conformity purposes only. Although EPA has 
proposed full revocation of the 1997 8-hour ozone standard, this 
interim guidance does not address potential CMAQ implementation issues 
due to the revocation. The FHWA will provide additional guidance once 
EPA finalizes the revocation of that standard.
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    \3\ The 2008 CMAQ Program Guidance is available at: http://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/2008_guidance/ guidance/.
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    The Interim Guidance is available electronically at the docket 
established for this notice and is effective on the date of the 
publication of this notice in the Federal Register. The FHWA will 
consider all comments submitted to the Docket and will publish a notice 
of the availability of the resulting final guidance in the Federal 
Register.

II. Section-by-Section Analysis

    The main differences between the Interim Guidance and the 2008 CMAQ 
Guidance are described below. The FHWA invites public comment on these 
changes. In addition, the Interim Guidance reorganizes some parts of 
the 2008 CMAQ Guidance, updates references, and changes some language 
to improve clarity without altering the substance of the 2008 CMAQ 
Guidance.

1. Section III.B. Authorization Levels Under the MAP-21: 
Transferability of CMAQ Funds

    The MAP-21 changed the transfer provisions for CMAQ considerably. 
Prior to MAP-21, State transfer of CMAQ funds to other elements of the 
Federal-aid highway program was subject to a specific statutory process 
that served to limit such annual transfer flexibility to approximately 
20 percent of a State's overall CMAQ funds (the percentage varied 
somewhat by State). Section 1509 of MAP-21 removed this unique transfer 
provision for CMAQ. The Interim Guidance explains that, with the 
removal of this special provision for CMAQ, the standard 
transferability provisions of 23 U.S.C. 126 now apply. Under 23 U.S.C. 
126, a limit of 50 percent of CMAQ program funds can be transferred 
each year. The Interim Guidance clarifies, however, that the section 
126 transfer provision does not apply to the statutory PM2.5 
priority set-aside funds (discussed in Section V). In addition, the 
FHWA's Fiscal Management Information System now includes a separate 
accounting code for the CMAQ setaside, which is blocked from transfer 
flexibility.

2. Section IV. Cost Effectiveness and Priority Use of CMAQ Funds

    The MAP-21 continues the emphasis introduced by SAFETEA-LU on cost-
effective projects that generate the greatest emissions reduction 
possible for the CMAQ funds invested. The SAFETEA-LU focus was on 
diesel retrofits and congestion-mitigation

[[Page 67444]]

efforts that produced an air quality benefit. Section 1113(b)(6) of 
MAP-21 not only expands the priority for efficiency and cost effective 
project selection with a broader emphasis on projects that are proven 
to reduce PM2.5, but also calls for evaluation and 
assessment of projects. This includes the development of a series of 
graphs and tables that describe the various cost-benefit relationships 
of a cross-section of CMAQ project types. The Interim Guidance outlines 
these legislative priorities and discusses the intended role of these 
tables and other graphic representations. The Interim Guidance 
emphasizes that the tables and the supporting research are to inform 
States, MPOs, and other project sponsors about the air quality benefits 
derived from the wide range of projects studied and the relative costs 
associated with these efforts. The Interim Guidance also offers a 
number of options for States and MPOs to use prior to the FHWA's 
completion of the tables and graphics required by MAP-21.

3. Section V.A-B. Annual Apportionment Process for CMAQ Funds: State 
Federal-aid Apportionment and CMAQ Apportionment

    Under ISTEA, TEA-21, and SAFETEA-LU, funding apportionments for 
each State were calculated based on a formula for weighted populations 
in ozone and carbon monoxide nonattainment and maintenance areas. 
Unlike previous legislation, MAP-21 does not contain a specific 
statutory distribution formula for CMAQ apportionment. The CMAQ 
apportionments under MAP-21 are determined based on overall share of 
the program in FY 2009. Under 23 U.S.C. 104(b)(4), CMAQ apportionments 
are determined using a ratio of the State's FY 2009 CMAQ funding 
relative to the State's total apportioned Federal-aid highway program 
funding for FY 2009. The resulting ratio applies to the calculation of 
the FY 2013 and FY 2014 CMAQ apportionments. The weighting factors from 
SAFETEA-LU, shown in Table 2 of the Interim Guidance, have been carried 
forward through MAP-21's use of the FY 2009 apportionments to set the 
FY 2013 and 2014 apportionments. The Interim Guidance discusses these 
changes.

4. Section V.C. Annual Apportionment Process for CMAQ Funds: Priority 
Set-aside for PM2.5 Areas

    Section 1113(b)(6) of MAP-21 established a clear priority for 
PM2.5 emissions reductions with respect to CMAQ obligations 
in 23 U.S.C. 149(k). Under the legislation, States with such 
nonattainment or maintenance areas are required to invest a portion of 
their CMAQ funds on projects that reduce PM2.5 emissions. 
The Interim Guidance describes the legislative priority for 
PM2.5 reductions, outlines potentially eligible project 
types, including the MAP-21 focus on construction equipment and 
vehicles, and summarizes the interim approach to calculating the 
PM2.5 priority set-aside. The FHWA is proposing a higher 
weighting factor through the rulemaking and public comment process. The 
FHWA will use the interim approach until the rulemaking is completed.

5. Section V.D and F. Annual Apportionment Process for CMAQ Funds: 
State Flexibility and Federal Share and State/Local Match Requirements

    The Energy Independence and Security Act of 2007 amended 23 U.S.C. 
120, Federal share payable, to provide temporary flexibility for States 
to use a 100-percent Federal share on all CMAQ projects. This 
flexibility was carried forward with each of the SAFETEA-LU extensions, 
but was not continued under the MAP-21. Consequently, the Interim 
Guidance clarifies that, as of October 1, 2012, Federal share 
requirements for CMAQ reverted to the standard provisions of 23 U.S.C. 
120, which provides for an 80 percent Federal share.

6. Section VII.A.2, Project Eligibility Provisions: Operating 
Assistance

    Section 1113(b)(6) of MAP-21 added paragraph (m) to the CMAQ 
provisions in 23 U.S.C. 149. Paragraph (m) expressly allows States to 
obligate CMAQ funds for operating assistance. The FHWA interprets 
paragraph (m) to allow the continuation of the Program's longstanding 
support for start-up and transition costs, but also to support 
additional flexibility in the timing of such assistance. Accordingly, 
the Interim Guidance continues to embody FHWA's interpretation that 
start-up and transition operating costs are eligible for funding under 
the CMAQ Program, but that long-term operating assistance support is 
not eligible because such costs are akin to maintenance and normal 
system operating costs that are the responsibility of the States and 
local governments.
    The Interim Guidance also revises the 3-year approach under the 
2008 CMAQ Program Guidance. The 3 years of operating assistance 
allowable under the 2008 CMAQ Program Guidance may now be spread over a 
longer time period, for a total of up to 5 sequential years of support. 
Grantees electing to provide operating support may spread the third 
year amount (an amount not to exceed the greater of year 1 or 2) across 
an additional 2 years (i.e., years 4 and 5) to provide an incremental, 
taper-down approach. The FHWA developed the option to spread the third 
year of assistance over a longer period (years 3, 4, and 5) to provide 
more flexibility to grantees. This provides for a smoother transition 
to more independent system operation. This new approach is designed to 
gradually reduce the Federal financial assistance once the activity has 
had an opportunity to become established. This is in keeping with the 
expectation that a new activity should increasingly be able to support 
itself through ridership growth and by procuring other sources of 
operating support. The Interim Guidance includes information on the 
eligibility of previous recipients of CMAQ operating assistance.
    Subsection VII.A.2.a of the Interim Guidance includes a reference 
to passenger rail service as one of the types of service the States may 
fund for operating assistance. The FHWA previously acknowledged the 
eligibility of certain types of rail service in a January 16, 2002, 
Federal Register notice (67 FR 2278), and in a March 8, 2010, letter 
from FHWA Administrator Victor M. Mendez to the National Railroad 
Passenger Corporation. The new 23 U.S.C. 149(m) states that the CMAQ 
funds for operating assistance apply ``in an area of such State that is 
otherwise eligible for obligations of such funds for operating costs 
under chapter 53 of title 49. . . .'' Considered alone, the phrase 
``otherwise eligible'' could be read as a reference to funding that was 
provided to certain transit operators prior to MAP-21. In reading 23 
U.S.C. 149(b)(3) together with 23 U.S.C. 149(m), however, it is clear 
that MAP-21 did nothing to alter the availability of CMAQ funds to help 
start up viable new public transportation services that demonstrate air 
quality benefits regardless of the area in which the service is 
provided. The eligibility applies regardless of the size of the 
urbanized area or whether a particular grantee is or was previously 
authorized to use funding under 49 U.S.C. Chapter 53 for operating 
assistance.
    Finally, 23 U.S.C. 149(m) states that operating assistance is 
allowed ``on a system that was previously eligible under this 
section.'' The FHWA interprets this statutory language to refer to 
those uses previously eligible for operating assistance funding under 
the exceptions in SAFETEA-LU sections 1808(g) through (k) and certain 
provisions in appropriations acts. Those

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uses are eligible for CMAQ operating assistance for an additional 5 
years as discussed in the Interim Guidance.

7. Section VII.F.1, Diesel Engine Retrofits & Other Advanced Truck 
Technologies

    The Interim Guidance discusses CMAQ eligibility for diesel 
retrofits under MAP-21. While SAFETEA-LU included eligibility 
provisions for diesel retrofit projects, MAP-21 places increased 
emphasis on the use of diesel retrofits. Such projects are included in 
the ``Priority Consideration'' provisions in 23 U.S.C. 149(g)(3), and 
MAP-21 includes diesel retrofit eligibility for projects undertaken to 
reduce PM2.5 emissions using the PM2.5 set-aside 
under 23 U.S.C. 149(k).

8. Section VII.F.6.c-e, Transit Improvements: Fuel, Operating 
Assistance and Transit Fare Subsidies

    The Interim Guidance discusses transit-specific aspects of transit 
fuel assistance, operating assistance, and transit fare subsidies. The 
MAP-21 does not alter the types of transit projects or the range of 
transit project sponsors able to receive this type of assistance. The 
Interim Guidance relocates the primary discussion of operating 
assistance to Section VII.A.2, leaving only transit-specific details in 
VII.F.6.d.

9. Section VII.F.7. Bicycle and Pedestrian Facilities Programs

    The Interim Guidance explains that CMAQ eligibility is available to 
programs authorized in the bicycle and pedestrian programs governed by 
23 CFR Part 652, with an example discussed.

10. Section VII.F.17. Alternative Fuels and Vehicles

    The Interim Guidance explains that stand-alone fuel acquisitions 
outside of transit operating support are not eligible for CMAQ funding. 
The fuel exception from SAFETEA-LU 1808(k) continues under MAP-21, 
subject to the time period and other limitations that govern all types 
of operating assistance.
    The Interim Guidance discusses the scope of CMAQ eligibility for 
electric vehicle charging stations and natural gas vehicle refueling 
stations under 23 U.S.C. 149(c)(2). The Interim Guidance reaffirms 
prior FHWA guidance that, consistent with 23 U.S.C. 111(a), such 
activities may be located in Interstate rest areas only if no fee is 
charged to users.

11. Section IX.B.3. Federal Agency Responsibilities and Coordination: 
Tracking Mandatory/Flexibility and PM2.5 Set-aside Funds

    The MAP-21 provisions on flexible funding and the PM2.5 
set-aside created a need for revised financial management systems. The 
Interim Guidance adds a description of the Fiscal Management 
Information System coding used to track mandatory and flexible CMAQ 
spending, including the new PM2.5 set-aside.

12. Section IX.D. Performance Plan

    Under MAP-21, MPOs serving a transportation management area (as 
defined in 23 U.S.C. 134) with a population over 1,000,000 people and 
representing a nonattainment or maintenance area are required to 
develop a performance plan under 23 U.S.C. 149(l). The requirements for 
the plan are discussed in the Interim Guidance, together with how FHWA 
plans to administer the reporting requirement in 23 U.S.C. 149(l). 
Performance planning and performance management are key elements of 
MAP-21, and several parts of MAP-21 contain performance planning and 
management requirements that touch on activities under the CMAQ 
Program. Several of the provisions will be the subject of rulemaking, 
and CMAQ guidance will be updated as needed following the conclusion of 
the rulemaking proceedings.

III. Request for Comments

    The FHWA invites interested parties to submit comments on the 
Interim Guidance's implementation of MAP-21 and other changes to the 
2008 Program Guidance. The FHWA will consider these comments in 
developing final guidance for the CMAQ Program. Late-filed comments 
will be considered to the extent practicable.

    Authority: 23 U.S.C. 104(b)(4), 126, and 149.

    Issued on: October 18, 2013.
Victor M. Mendez,
FHWA Administrator.
[FR Doc. 2013-26795 Filed 11-8-13; 8:45 am]
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