Congestion Mitigation and Air Quality Improvement Program Interim Guidance |
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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
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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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