Notice2024-25523
Notice of Availability of Interim Congestion Mitigation and Air Quality Improvement (CMAQ) Program Guidance as Revised by the Bipartisan Infrastructure Law (BIL)
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Published
November 6, 2024
Effective
November 6, 2024
Issuing agencies
Transportation DepartmentFederal Highway Administration
Abstract
This notice announces the availability of FHWA CMAQ Program Interim Guidance (Interim Guidance). The Interim Guidance provides information and guidance on eligibility, transfer, and other CMAQ Program requirements under the BIL, enacted as the Infrastructure Investment and Jobs Act. The CMAQ Program requirements in the BIL took effect on October 1, 2021, and apply to all funding obligated on or after that date, whether carryover or new. Because the CMAQ Program requirements in the BIL are in effect and the Interim Guidance contains information that is needed to plan CMAQ-funded projects and use CMAQ funds, the Interim Guidance is effective on the date of publication of this notice in the Federal Register. The Interim Guidance replaces the November 12, 2013 Interim CMAQ Program Guidance under MAP-21 and the July 2014 Revised Interim Guidance on CMAQ Operating Assistance under MAP-21. The FHWA invites public comments on the Interim Guidance and will consider all timely comments submitted to the docket in developing final guidance.
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<title>Federal Register, Volume 89 Issue 215 (Wednesday, November 6, 2024)</title>
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[Federal Register Volume 89, Number 215 (Wednesday, November 6, 2024)]
[Notices]
[Pages 88108-88111]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25523]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-2023-0036]
Notice of Availability of Interim Congestion Mitigation and Air
Quality Improvement (CMAQ) Program Guidance as Revised by the
Bipartisan Infrastructure Law (BIL)
AGENCY: Federal Highway Administration (FHWA), Department of
Transportation (DOT).
ACTION: Notice of availability of Interim Guidance; request for
comment.
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SUMMARY: This notice announces the availability of FHWA CMAQ Program
Interim Guidance (Interim Guidance). The Interim Guidance provides
information and guidance on eligibility, transfer, and other CMAQ
Program requirements under the BIL, enacted as the Infrastructure
Investment and Jobs Act. The CMAQ Program requirements in the BIL took
effect on October 1, 2021, and apply to all funding obligated on or
after that date, whether carryover
[[Page 88109]]
or new. Because the CMAQ Program requirements in the BIL are in effect
and the Interim Guidance contains information that is needed to plan
CMAQ-funded projects and use CMAQ funds, the Interim Guidance is
effective on the date of publication of this notice in the Federal
Register. The Interim Guidance replaces the November 12, 2013 Interim
CMAQ Program Guidance under MAP-21 and the July 2014 Revised Interim
Guidance on CMAQ Operating Assistance under MAP-21. The FHWA invites
public comments on the Interim Guidance and will consider all timely
comments submitted to the docket in developing final guidance.
DATES: The Interim Guidance is effective November 6, 2024. Comments
must be received on or before January 6, 2025. Late comments will be
considered to the extent practicable.
ADDRESSES: The Interim Guidance is available for review on
<a href="http://www.regulations.gov">www.regulations.gov</a> using the docket number noted above. To ensure that
you do not duplicate your docket submissions, please submit comments by
only one of the following means:
<bullet> Federal eRulemaking Portal: Go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> and follow the online instructions for submitting
comments.
<bullet> Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590.
<bullet> Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m. ET, Monday through Friday, except Federal holidays. The telephone
number is (202) 366-9329.
<bullet> Instructions: You must include the agency name and docket
number at the beginning of your comments. All comments received will be
posted without change to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Cecilia Ho, Air Quality and Noise Team
Leader, FHWA Office of Natural Environment, 202-366-9862,
<a href="/cdn-cgi/l/email-protection#88cbedebe1e4e1e9a6c0e7c8ece7fca6efe7fe"><span class="__cf_email__" data-cfemail="d794b2b4bebbbeb6f99fb897b3b8a3f9b0b8a1">[email protected]</span></a>, or Lev Gabrilovich, FHWA Office of the Chief
Counsel, 202 366-3813, <a href="/cdn-cgi/l/email-protection#1d51786b335a7c7f6f7471726b747e755d797269337a726b"><span class="__cf_email__" data-cfemail="82cee7f4acc5e3e0f0ebeeedf4ebe1eac2e6edf6ace5edf4">[email protected]</span></a>. FHWA is located at 1200
New Jersey Avenue SE, Washington, DC 20590. Office hours are from 8:00
a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access and Filing
A copy of this notice, all comments received on this Notice, and
all background material may be viewed online at <a href="http://www.regulations.gov">http://www.regulations.gov</a> using the docket number listed above. Electronic
retrieval help and guidelines are also available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. An electronic copy of this document also may be
downloaded from the Office of the Federal Register's website at
<a href="http://www.FederalRegister.gov">www.FederalRegister.gov</a> and the Government Publishing Office's website
at <a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
I. Background
The primary goal of the CMAQ program is to provide funding to State
and local governments to support transportation projects and programs
that reduce emissions of criteria pollutants and to help improve air
quality for areas that are designated nonattainment or maintenance for
the National Ambient Air Quality Standards (NAAQS) for ozone, carbon
monoxide, or particulate matter (both PM<INF>10</INF> and
PM<INF>2.5</INF>) (23 U.S.C. 149). The BIL, enacted as the
Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, Nov. 15,
2021), amended the CMAQ program (BIL, sec. 11115). The Interim Guidance
reflects the BIL amendments and provides guidance on project
eligibility requirements and addresses program administration processes
and other relevant policy and regulatory requirements. The Interim
Guidance replaces the November 12, 2013 Interim CMAQ Program Guidance
under MAP-21 \1\ and the July 2014 Revised Interim Guidance on CMAQ
Operating Assistance under MAP-21.\2\
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\1\ <a href="https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/2013_guidance/index.cfm">https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/2013_guidance/index.cfm</a>.
\2\ <a href="https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/cmaq13ig.cfm">https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/cmaq13ig.cfm</a>.
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The Interim Guidance is available at the docket indicated above,
and it is effective on the date of publication of this notice in the
Federal Register. The FHWA will consider all timely comments submitted
to the docket in developing final guidance. The FHWA anticipates
publishing a notice of availability of the final guidance in the
Federal Register.
II. Section-by-Section Analysis
To facilitate review, public comments, and implementation, this
notice summarizes the Interim Guidance by section. This notice also
highlights changes to the CMAQ Program as amended by the BIL, and it
highlights the main changes from the previous CMAQ guidance. While much
of the 2013 CMAQ Interim Guidance is retained, the guidance has been
reorganized to better reflect eligible CMAQ project categories. Please
read the Interim Guidance for details.
1. Section I: Overview
Section I is the Overview, formerly Introduction and Program
Purpose sections under the 2013 Interim Guidance. Section I(A) of the
Interim Guidance, CMAQ Program Purpose, describes the primary purpose
of the CMAQ Program, which provides funding to State and local
governments to support transportation projects and programs that reduce
emissions of criteria pollutants and help improve air quality in areas
that are designated under the Clean Air Act as nonattainment or
maintenance areas for ozone, carbon monoxide, or particulate matter
with respect to the NAAQS. (23 U.S.C. 149). Section I(B) provides
background and guidance on strategic priorities and use of the Federal-
aid highway formula funding. Section I(C) describes the purpose of the
Interim Guidance and highlights the topics it addresses: authorization
levels and apportionment; flexibility and transferability provisions
available to States; project eligibility; project selection processes;
program administration; annual reporting; and performance management.
2. Section II: Governing Authorities
Section II of the Interim Guidance is new and lists the governing
authorities. They include three sections of the BIL: section
11101(a)(1), which authorizes funds for the CMAQ program; section
11104(b)(5), which provides for apportionment of CMAQ funds under 23
U.S.C. 104; and section 11115, which amends 23 U.S.C. 149.
3. Section III: Funding and Financing CMAQ Projects and Programs
This section of the Interim Guidance explains the funding and
financing of CMAQ projects and programs. Section III(A) summarizes the
authorization levels of the CMAQ program under the BIL (FY 2022 through
FY 2026). Section III(B), formerly section IV of the 2013 Guidance,
then describes the apportionment of CMAQ funds, which are apportioned
to States via the method provided in the law, a priority set-aside,
State flexibility (mandatory vs. flexible CMAQ funding), and a lock and
dam and marine highways limitation. Some of these funds are set aside
for priority use in fine particulate matter (PM<INF>2.5</INF>) areas to
support projects and programs that reduce PM<INF>2.5</INF> emissions.
See 23
[[Page 88110]]
U.S.C. 149(k). Section 149(k)(3) of title 23 U.S.C. exempts certain
PM<INF>2.5</INF> nonattainment and maintenance areas from the
PM<INF>2.5</INF> set-aside requirements, based on population size and
other criteria.
Section III.B.3, formerly section V.D. in the 2013 Interim
Guidance, addresses mandatory versus flexible funds. While States must
use CMAQ funds to support eligible projects and programs in
nonattainment and maintenance areas (23 U.S.C. 149(b)), all States
receive a minimum amount of CMAQ funds regardless of the nonattainment
and maintenance area status. States that do not have any nonattainment
or maintenance areas have additional flexibility in how and where they
can obligate CMAQ funds.
The Interim Guidance adds new language in Section III.B.4 to
address a limitation added in the BIL that caps State obligations for
lock and dam and marine highway projects (newly eligible under 23
U.S.C. 149(b)(10) and 149(b)(11)) for each fiscal year at no more than
10 percent of CMAQ funds apportioned to the State. 23 U.S.C. 149(c)(4).
Section III(C) of the Interim Guidance, formerly section V.F.,
addresses the Federal share. Like other Federal-aid programs, CMAQ
Federal share is typically 80 percent; however, there are some
exceptions. Notably, States can program a full 100 percent Federal
share for certain project types listed under 23 U.S.C. 120(c)(1).
Section III(D) addresses CMAQ fund transfers. CMAQ funds can be
transferred for transit projects to be administered by the Federal
Transit Administration (FTA) under chapter 53 of title 49, U.S.C. In
addition, a State may transfer up to 50 percent of CMAQ funds made
available each fiscal year to other apportioned programs under title
23. 23 U.S.C. 126. Note that for CMAQ, the apportioned funds eligible
for transfer cannot come from the states PM<INF>2.5</INF> set-aside.
As discussed in Section III(E), (formerly section VIII.C.) CMAQ
projects can also be financed via public-private partnerships (PPPs).
For these projects, a metropolitan planning organization (MPO), State
departments of transportation (State DOT), or other project sponsor may
enter into an agreement with any public, private, or nonprofit entity
to cooperatively implement any CMAQ project through a public private
agreement or partnership (23 U.S.C. 149(f)). 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 CMAQ
funds should be devoted to PPPs that benefit the general public by
supporting projects that reduce emissions. Eligible activities for
participation by entities under the partnership provisions include
ownership or operation of any land, facility, vehicle, or other
physical assets; and cost sharing of project expense; among others. 23
U.S.C. 149(f)(2).
4. Section IV: CMAQ Program Administration
Program Administration, formerly section IX of the 2013 Interim
Guidance, addresses elements of the administration of the CMAQ program.
Section IV(A) of the Interim Guidance discusses Federal agency
responsibilities and coordination. The FHWA has oversight
responsibility for administering the CMAQ program. The FHWA coordinates
closely with FTA, and the U.S. Environmental Protection Agency in
implementing the program. When CMAQ funds are transferred from FHWA to
FTA to support transit projects, FTA will administer those CMAQ-funded
transit projects. In cases where FTA lacks statutory authority (e.g.,
school bus fleets), FHWA will administer those projects for purposes of
the CMAQ program.
Section IV(B) of the Interim Guidance discusses project selection.
The FHWA encourages the State and the MPO to coordinate during the
project selection process to help ensure that CMAQ funds are used
appropriately to maximize their effectiveness in improving air quality
and in meeting the program's requirements as well as in supporting the
goals established in the BIL (see section I.B. of the Interim
Guidance). In PM<INF>2.5</INF> areas, projects that reduce
PM<INF>2.5</INF> emissions must be given priority, using the
PM<INF>2.5</INF> set-aside funds. The BIL added that in these
PM<INF>2.5</INF> areas, projects must be selected that prioritize
benefits to disadvantaged communities or low-income populations to the
extent practicable. 23 U.S.C. 149(k)(1)(B). In all areas, cost
effectiveness should be considered during project selection.
Transportation control measures in an applicable State Implementation
Plan should also be given priority to ensure they are implemented in a
timely fashion.
Section IV(C) of the Interim Guidance addresses the evaluation and
assessment of projects. Administration of the CMAQ Program includes an
annual reporting process that populates a cumulative database of all
CMAQ projects, as required under 23 U.S.C. 149(i)(l). This data is
available to the public via the CMAQ Public Access System. FHWA also
develops and regularly updates a table of CMAQ eligible projects and
their cost-effectiveness \3\ (dollars in tons of emissions reduced).
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\3\ <a href="https://www.fhwa.dot.gov/environment/air_quality/cmaq/reference/cost_effectiveness_tables/index.cfm">https://www.fhwa.dot.gov/environment/air_quality/cmaq/reference/cost_effectiveness_tables/index.cfm</a>.
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5. Section V: Project Eligibility
Each CMAQ project or program must meet eligibility criteria for the
Program before receiving CMAQ funds. Each CMAQ project must meet three
basic criteria: (1) it must be a transportation project,\4\ (2) it must
be located in or benefit a nonattainment or maintenance area and, (3)
it must contribute to the attainment or maintenance of the NAAQS and be
effective at reducing air pollution (23 U.S.C. 149(b)). States that do
not have ozone, CO or PM<INF>2.5</INF> nonattainment or maintenance
areas are able to use all of their CMAQ funds for either CMAQ- or
Surface Transportation Block Grant (STBG)-eligible projects. 23 U.S.C.
149((d)(1). Section V(A) of the Interim Guidance discusses each of
these criteria. In addition, the project or program must meet the
eligibilities listed in 23 U.S.C. 149 or have been otherwise determined
to contribute to the attainment or maintenance of ozone, PM, or carbon
monoxide.
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\4\ 23 U.S.C. 101(a)(20).
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Section V(B) describes projects ineligible for CMAQ funding.
Section V(C) describes eligible programs and project types. All of the
eligible programs and project types described in former section VII.F.
of the 2013 Interim Guidance are retained. Note that the project
eligibility material has been reorganized to better reflect the logical
grouping of projects in their method to reduce emissions and
congestion. In addition, the reorganization better highlights the many
types of eligible projects. The new project and program eligible
groupings are: vehicle/fuel technology (such as alternative fuel
vehicles, electric and natural gas vehicles and infrastructure, and
diesel engine replacements/retrofits), improved public transportation
(such as transit facilities, bus replacements and service expansion),
traffic flow improvements (such as traffic signalization, intersection
improvements and high occupancy lanes), intelligent transportation
systems (such as traveler information systems, incident management and
vehicle to infrastructure communications equipment), transportation
demand management (such as ride sharing, bicycle and pedestrian
facilities, shared micromobility, and employer based programs), lock
and dam and marine
[[Page 88111]]
highways, vehicle activity programs (such as idle reduction), and other
projects (such as dust mitigation). New language is added in the other
projects grouping to clarify the eligibility of incentives. The BIL
added new eligibilities for the lock and dam and marine highways (23
U.S.C. 149(b)(10) and 149(b)(11)) and shared micromobility (23 U.S.C.
149(b)(7)), and the BIL specifically highlighted the explicit
eligibility for the purchase of medium- or heavy-duty zero emissions
vehicles and related charging equipment (23 U.S.C. 149(b)(8)(C)). These
new eligible project types are included in the Interim Guidance.
Section V(D) of the Interim Guidance address eligible costs.
Project costs that may be eligible include both capital investments and
operating assistance. Examples of capital expenses associated with
CMAQ-eligible projects that may be eligible expenses include congestion
pricing, freight, or bike sharing equipment. Operating assistance is
eligible. 23 U.S.C. 149(m). General operating assistance is directed to
the startup operating costs for new transportation services or the
incremental costs of expanding such services including transit,
commuter and intercity passenger rail services, intermodal facilities,
and travel demand management strategies, including traffic operation
centers and carshares. General operating assistance is available to
help start up projects and is limited in duration. However, some
projects are eligible for unlimited operating assistance. Such projects
include a system for which CMAQ funding was eligible, made available,
obligated or expended in FY 2012 and State-supported Amtrak route with
valid cost-sharing agreement even in areas with no current
nonattainment areas. The BIL added availability for operating
assistance with no time limitation for transit systems located in non-
urbanized areas or in urbanized areas with a population of 200,000 or
fewer. 23 U.S.C. 149(m)(2). Other eligible project costs can include
public education and outreach, training, and transit fare subsidies in
limited circumstances.
As discussed in section V(E) of the Interim Guidance. All Federal
projects including all CMAQ projects must conform to the appropriate
cost principles for Federal aid. The CMAQ projects are subject to title
2, Code of Federal Regulations (CFR) part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal
Awards. In addition, all CMAQ funded projects, must meet applicable
transportation planning (23 U.S.C. 149(e)), Clean Air Act conformity
requirements (40 CFR part 93), National Environmental Policy Act (42
U.S.C. 4321 et seq.), and basic eligibility requirements for titles 23
and 49 U.S.C.
6. Section VI: CMAQ Performance Management
Section VI of the Interim Guidance addresses performance
management. Pursuant to 23 U.S.C. 150(c)(5), FHWA established three
performance measures, codified in subparts G and H of 23 CFR part 490,
for State DOTs and MPOs to use to assess traffic congestion and on-road
mobile source emissions for the purpose of carrying out the CMAQ
Program. In addition, 23 U.S.C. 149(l) requires that each MPO serving a
transportation management area (TMA as defined in 23 U.S.C. 134) with a
population over 1,000,000 people representing a nonattainment or
maintenance area develop a performance plan. The BIL (sec. 11115(6))
added that, upon request of such an MPO, DOT can assist the MPO in
tracking progress made in minority or low-income populations as part of
such a performance plan. The FHWA publishes lists of State DOTs and
MPOs who are required to establish targets and report progress for the
performance measures related to CMAQ, including who must prepare an MPO
CMAQ Performance Plan.\5\
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\5\ <a href="https://www.fhwa.dot.gov/environment/air_quality/cmaq/measures/cmaq_applicability/index.cfm">https://www.fhwa.dot.gov/environment/air_quality/cmaq/measures/cmaq_applicability/index.cfm</a>.
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7. Appendix A: List of Transportation Control Measures
Appendix A to the Interim Guidance is new and includes a list of
the transportation control measures listed in section 108(f)(1)(A) of
the Clean Air Act, 42 U.S.C. 7408(f)(1)(A), that are eligible for CMAQ
funds. Appendix A also notes one exception. Under 23 U.S.C.
149(b)(1)(A), the program described in 42 U.S.C. 7408(f)(1)(A)(xvi) is
not eligible for CMAQ funds.
Request for Comments
The FHWA invites public comments on the Interim Guidance's
implementation of the BIL changes to the CMAQ Program and other changes
to the July 2014 Revised Interim Guidance on CMAQ Operating Assistance
under MAP-21. The FHWA will consider all timely comments submitted to
the docket in developing final guidance for the CMAQ Program. The FHWA
anticipates publishing a notice of availability of the final guidance
in the Federal Register.
Authority: 23 U.S.C. 104(b)(4), 126, and 149; Pub. L. 117-58.
Signed in Washington, DC, under authority delegated in 49 CFR
1.85.
Kristin R. White,
Acting Administrator, Federal Highway Administration.
[FR Doc. 2024-25523 Filed 11-5-24; 8:45 am]
BILLING CODE 4910-22-P
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