[Federal Register Volume 63, Number 206 (Monday, October 26, 1998)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28475]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
[FHWA Docket No. FHWA-98-4317]
Transportation Equity Act for the 21st Century; Interim
Implementation of the Congestion Mitigation and Air Quality Improvement
AGENCY: Federal Highway Administration (FHWA), Federal Transit
Administration (FTA), DOT.
ACTION: Notice; request for comments.
SUMMARY: This document publishes interim implementation guidance on
section 1110 of the Transportation Equity Act for the 21st Century
(TEA-21), Pub. L. 105-178, 112 Stat. 107, for the congestion mitigation
and air quality improvement program (CMAQ) to offer the opportunity for
comment into the development of final guidance on this program. The
interim guidance provides informational items on issues related the
reauthorized CMAQ program, new provisions regarding eligible geographic
areas under TEA-21, and guidance related to projects now eligible for
CMAQ funds. With the exception of the issues discussed in this interim
guidance, all provisions of the policy guidance issued on March 7, 1996
(61 FR 50890, September 27, 1996) continue to apply. The FHWA and the
FTA intend to issue final, comprehensive guidance on the new CMAQ
program following opportunity for interested parties to comment. In
addition, the FHWA and the FTA will host four forums in the near future
to provide an opportunity for those directly involved to assist in
developing the final guidance.
DATES: This interim guidance is effective October 26, 1998.
Comments on the development of final guidance must be received on
or before Monday, November 30, 1998.
ADDRESSES: Your signed, written comments must refer to the docket
number appearing at the top of this document and you must submit the
comments to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001. All comments received
will be available for examination at the above address between 10 a.m.
and 5 p.m., e.t., Monday and Friday, except Federal holidays. Those
desiring notification of receipt of comments must include a self-
addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT: For the FHWA program office: Mr.
Michael J. Savonis, Office of Environment and Planning, (202) 366-2080;
For the FTA program office: Mr. Abbe Marner, Office of Planning, (202)
366-4317; For legal issues: Mr. S. Reid Alsop, (202) 366-1371. Office
hours are from 8 a.m. to 4:30 p.m., e.t., Monday through Friday, except
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours a day, 365 days each year.
Please follow the instructions online for more information and help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Government Printing
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at:
In addition to the interim guidance which is included in this
notice, the FHWA and the FTA would like input on a number of questions
and issues related to the new flexibilities in the CMAQ program under
TEA-21. Specific questions are listed later in this notice and
interested parties are urged to provide written comments. Also,
comments on any othe aspect of the CMAQ program are welcomed and will
be taken into account in the development of final guidance.
(Authority: 23 U.S.C. 315; sec. 1110, Pub. L. 105-178, 112 Stat.
107 (1998); 49 CFR 1.48 and 1.51)
Issued on: October 7, 1998.
Kenneth R. Wykle,
Gordon J. Linton,
The text of the interim implementation on the CMAQ program reads as
I. Interim Implementation of the Congestion Mitigation and Air
Quality Improvement Program
Information: Interim Implementation of the Congestion Mitigation
and Air Quality Improvement (CMAQ) Program.
Associate Administrator for Program Development, FHWA HEP-40/TPL-12
Associate Administrator for Planning, FTA
Regional Federal Transit Administrators
Regional Federal Highway Administrators
Federal Lands Highway Program Administrator
The CMAQ program was reauthorized in the recently enacted
Transportation Equity Act for the 21st Century (TEA-21). The primary
purpose of the CMAQ program remains the same: to fund projects and
programs in nonattainment and maintenance areas which reduce
transportation-related emissions. Some changes to the CMAQ program were
included in TEA-21 however, and those changes are the subject of this
Interim Guidance. The FHWA and FTA intend to issue final, comprehensive
guidance on the new CMAQ program by December 1998 and will initiate a
process for receiving stakeholder input on that guidance in the near
This Interim Guidance provides: (1) Informational items on issues
related to the reauthorized CMAQ program, (2) new provisions regarding
eligible geographic areas under TEA-21, and (3) guidance related to
projects now eligible for CMAQ funds. With the exception of the issues
discussed in this Interim Guidance, all provisions of the March 7,
1996, Guidance on the CMAQ program continue to apply.
1. Informational Items
1. a. Authorization Levels and Apportionment Formula
Table 1 shows the CMAQ authorization levels by fiscal year (FY) as
included in TEA-21. The CMAQ funds will be apportioned to States each
year based upon the adopted apportionment formula as shown in Table 2.
Following the apportionments, States are encouraged to suballocate CMAQ
funds to the nonattainment and maintenance areas in each State. The
States need to be mindful that the highest priority for CMAQ funds
continues to be transportation control measures (TCMs) identified in
the State implementation plan (SIP).
Table 1.--TEA-21 CMAQ Authorization levels
Fiscal year authorization authorized
FY 1998.............................................. $1,192,619,000
FY 1999.............................................. 1,345,415,000
FY 2000.............................................. 1,358,138,000
FY 2001.............................................. 1,384,930,000
FY 2002.............................................. 1,407,474,000
FY 2003.............................................. 1,433,996,000
Table 2.--TEA-21 CMAQ Apportionment Formula
Classification at the time of annual
Pollutant apportionment Weighting factor
Ozone (O3) or Carbon Monoxide (CO). Maintenance.................................... .8
Ozone.............................. Submarginal.................................... .8
Carbon Monoxide.................... Nonattainment (for CO only).................... 1.0
Ozone and Carbon Monoxide.......... Ozone nonattainment or maintenance and CO 1.1 x O3 factor
Ozone nonattainment or maintenance and CO 1.2 x O3 factor
All States--minimum apportionment.. \1/2\ of 1 percent total annual apportionment N/A
of CMAQ funds.
1.b. Minimum Guarantee
The TEA-21 provides a minimum guarantee that requires each State to
receive funding in an amount not less than 90.5 percent of the
estimated annual Federal gasoline tax payments that State pays into the
Highway Trust Fund. Due to the minimum guarantee, the annual
authorizations listed in Table 1 are the basic authorization levels and
could be increased depending on actual Highway Trust Fund receipts.
1.c. Apportionment Formula
The CMAQ funds are apportioned according to a formula based on air
quality need which is calculated in the following manner. The
population of each area in a State, that at the time of apportionment
is a nonattainment or maintenance area for ozone and/or carbon monoxide
(CO), is multiplied by the appropriate factor listed in Table 2. Key
changes in the apportionment formula under TEA-21 are noted below.
Areas that are designated and classified as submarginal
and maintenance areas for ozone are now explicitly included in the
There are new weighting factors for CO nonattainment
The upper limit on the amount of CMAQ funds that the
largest States (California, New York, and Texas) could receive is now
lifted, ensuring that CMAQ apportionments more closely reflect needs
based upon nonattainment and maintenance area designations and
classifications in each State; and
The freeze related to the apportionment formula due to
language in the National Highway System Designation Act of 1995 has
been lifted. This freeze had the effect of apportioning CMAQ funds
based on nonattainment status as of 1994, regardless of whether
redesignation had occurred. This approach has now been replaced by a
formula using current designations and classification at the time of
1.d. Minimum Apportionments
Each State is guaranteed at least \1/2\ of 1 percent of each year's
CMAQ authorized funding regardless of whether the State has any
nonattainment or maintenance areas.
1.d.1. States Without a Nonattainment Area
If a State does not have, and has never had, a nonattainment area,
the State may use its minimum apportionment for any projects eligible
under the STP, in addition to projects eligible under the CMAQ program.
As noted in the March 7, 1996, guidance, such States are encouraged to
give priority to the use of CMAQ program funds for the development of
congestion management systems, public transportation facilities and
equipment, and intermodal facilities and systems, as well as the
implementation of projects and programs produced by those systems.
1.d.2. States With a Nonattainment Area
Some of the States receiving minimum apportionments have
nonattainment or maintenance areas. The population in these areas when
weighted by the severity of the pollution is insufficient to bring
these States CMAQ funds up to the minimum apportionment levels.
Additional flexibility is granted under TEA-21 for these States.
Specifically, a State receiving the minimum apportionment may use that
portion of the funds not based on its nonattainment and maintenance
area population for any project in the State eligible under the Surface
Transportation Program (STP). The FHWA will provide a list of these
States and a description of the flexibility granted them at a future
1.e. Transferability of CMAQ Funds
States may transfer CMAQ funds to other programs according to the
following provision. An amount not to exceed 50 percent of the State's
annual apportionment may be transferred less the amount the State would
have received if the CMAQ program was authorized at $1,350,000,000. Any
transfer of such funds must still be obligated in nonattainment and
maintenance areas. This increment of transferable funds will differ
from year-to-year and State-to-State depending on overall authorization
levels. Each year the FHWA and the FTA will inform each State how much
of their CMAQ funding is transferable, if any.
1.f. Study on the Effectiveness of the CMAQ Program
The TEA-21 directs the Secretary of Transportation and the EPA
Administrator to enter into arrangements with the National Academy of
Sciences to conduct a study on the effectiveness of the CMAQ program.
Among other things, the study will evaluate the emissions reductions
attributable to CMAQ funded projects. The results of the study will be
provided to Congress not later than January 1, 2001. The study will be
funded by deducting $500,000 per year from the total CMAQ
apportionments for FY 1999 and FY 2000. More information about the
status of this effort will be provided as the details and scope of this
study are fully developed.
2. Eligible Geographic Areas
2.a. Maintenance Areas
Maintenance areas that were designated nonattainment, but have
since met the air quality standards are now explicitly eligible to
receive CMAQ funding. Such areas must have met the classification
requirements of the 1990 Clean Air Act Amendments when designated
nonattainment (see 2.c. below) in order to be eligible.
If a State has ozone or CO maintenance areas only, the State must
now exclusively use its CMAQ funding in those areas contained within
its borders. Previous guidance allowed such States flexibility to use
their CMAQ funding for projects eligible under the STP if a State could
demonstrate that it had sufficient funding to meet its air quality
commitments within a maintenance area. Such flexibility is no longer
allowed since maintenance areas are now included in the apportionment
formula and the eligibility provisions require that CMAQ funding be
used in nonattainment and maintenance areas.
2.b. Particulate Matter (PM-10) Nonattainment and Maintenance Areas
Nonattainment and maintenance areas for PM-10 are also now
explicitly eligible to receive CMAQ funding. Under the previous
guidance, CMAQ funding had been extended to such areas under
administrative discretion provided that two requirements were met.
First, the EPA had to attest that progress toward attainment of the
ozone and/or CO standards would not be delayed by funding PM-10
mitigation projects under the CMAQ program. And second, the State had
to notify all nonattainment and maintenance areas that PM-10 projects
were to be funded. Now that the law explicitly recognizes these areas
as eligible, such requirements are lifted.
States that have PM-10 nonattainment or maintenance areas only
(i.e., no ozone or CO nonattainment or maintenance areas) are granted
additional flexibility under TEA-21. Since these areas are not included
in the CMAQ apportionment calculation, the State may use its minimum
apportionment for projects eligible under the STP or the CMAQ program
anywhere in the State. However, such States are encouraged to use their
CMAQ funds in the PM-10 nonattainment and maintenance areas.
2.c. Classification Criteria
An area that is designated as a nonattainment area for ozone, CO or
PM-10 under the Clean Air Act prior to December 31, 1997, is eligible
for CMAQ funds provided that the area is also classified in accordance
with sections 181(a), 186(a), or 188(a) or (b) of the Clean Air Act.
This means that ozone nonattainment areas must be classified
``marginal'' through ``extreme,'' and CO and PM-10 nonattainment areas
must be classified either ``moderate'' or ``serious'' to be eligible
for CMAQ funding. Submarginal ozone nonattainment areas are now
included in the CMAQ apportionment formula, but are not mentioned in
the eligibility criteria of TEA-21. To resolve this apparent oversight,
we are extending CMAQ eligibility to submarginal ozone nonattainment
areas. Areas that were designated with these classifications and
subsequently redesignated to maintenance areas are also eligible.
2.d. Revised National Ambient Air Quality Standards (NAAQS)
The CMAQ eligibility provisions under TEA-21 allow that any area
designated as nonattainment after December 31, 1997, be eligible for
CMAQ funding even though it may not be classified in accordance with
the sections of the Clean Air Act cited above (see section 2.c.). This
provision ensures that any areas designated nonattainment as a result
of the revised ozone and PM air quality standards, promulgated in 1997,
will be eligible for CMAQ funding. Such areas, however, will not be
included in the apportionment formula since they will not be given
classifications identified in the Clean Air Act Amendments of 1990
(sections 181(a), 186(a), or 188(a) and (b)). Such areas that are
subsequently redesignated to maintenance areas are also eligible.
2.e. Revocation of the 1-Hour Ozone Standard
As part of the transition to the 8-hour ozone standard, EPA
recently revoked the 1-hour standard in areas that had the requisite 3
years of ``clean'' monitoring data. The list of areas for which the 1-
hour standard has been revoked is found in the June 5, 1998, Federal
Register. Among this group, those areas that had approved maintenance
plans by the effective date of the revocation June 5, 1998 will
continue to have their
maintenance plans in full force. As maintenance areas, they will
continue to be eligible for CMAQ funds and will be included in the
annual apportionment formula. The conformity requirements will also
continue to apply in these areas.
Other areas among the group for which the 1-hour ozone standard has
been revoked do not have approved maintenance plans. They may not have
submitted a maintenance plan or the plan may not have been approved by
June 5. These areas, then, are no longer designated nonattainment or
maintenance relative to the 1-hour standard. As such, these areas will
not be subject to the conformity requirements and they will no longer
be able to meet the basic statutory requirement for CMAQ eligibility
unless they are designated nonattainment or maintenance for CO and/or
PM. In order to provide continuity in the transportation/air quality
planning process, the FHWA and the FTA are establishing an interim
period for these areas providing some continued eligibility under the
CMAQ program. Air quality improvement projects in the first 3 years of
the Transportation Improvement Program (TIP) will remain eligible for
CMAQ funding, subject to the usual State and local direction regarding
project selection. The metropolitan planning organizations (MPOs) in
these areas will have 4 months from the date of this guidance to amend
their TIPs in response to this guidance. After this time frame, CMAQ
funding will be restricted to only CMAQ-eligible projects in the first
3 years of the TIP.
At the time of issuance of this interim guidance, EPA's policies
regarding the revocation of the PM-10 standard were still under
development. Issues affecting the distribution of CMAQ and eligibility
under the program for areas affected by the revocation of the PM-10
standard will be addressed in the final program guidance.
3. Newly Eligible Projects
3.a. Extreme Low-Temperature Cold Start Programs
Projects intended to reduce emissions from extreme cold-start
conditions are now eligible for CMAQ funding. This TCM is listed in
Clean Air Act Section 108(f)(A)(1) and was heretofore excluded from
eligibility for CMAQ funding. Examples of such projects include:
Retrofitting vehicles and fleets with water and oil
Installing electrical outlets and equipment in publicly-
owned garages or fleet storage facilities.
3.b. Magnetic Levitation Transportation Technology Deployment Programs
The CMAQ funds may be used to fund a portion of the full project
costs (including planning, engineering, and construction) pursuant to
Section 1218-Magnetic Levitation Transportation Technology Deployment
Program of TEA-21. For these projects, the Federal share may be up to
100 percent of the eligible costs.
3.c. Public Private Partnerships
The TEA-21 provides greater access to CMAQ funds for projects which
are cooperatively implemented by the public and private sectors and/or
non-profit entities. Public/private initiatives are addressed in the
existing CMAQ guidance (see section II.A.13); however, the new
statutory language leads to several important changes regarding the
eligibility of joint public/private initiatives.
Proposed programs or projects no longer are required to be under
the primary control of the cooperating public agency. Also, two of the
three criteria which helped to define eligibility for joint public/
private ventures in the March 1996 CMAQ guidance will no longer apply
since the restrictions are not supported by the new statutory language.
These criteria were: That the activity normally be a public sector
responsibility, and that private ownership be shown to be cost-
effective. The third criterion, noting the public agency's
responsibility to oversee and protect the investment of Federal funds
in a public/private partnership, continues to apply.
Eligible activities under the public/private partnership provisions
Ownership or operation of land, facilities or other
Cost-sharing of project expenses;
Carrying out administration, construction management or
operational duties associated with a project; and
Any other form of participation approved by the U.S. DOT
While the new statute provides greater latitude in funding projects
initiated by private or non-profit entities, it also raises concerns
about the use of public funds to benefit a specific private entity.
Since the public benefit is in air quality improvement, it is expected
that future funding proposals involving private entities will
demonstrate strong emission reduction benefits. Furthermore, this new
flexibility requires that greater emphasis be placed on an open,
participatory process leading up to the selection of projects for
funding. Because of concerns about the equitable use of public funds,
the FHWA and the FTA consider it essential that all interested parties
have full and timely access in the process of selecting projects for
CMAQ funding. This could involve open solicitation for project
proposals; objective criteria developed for rating candidate projects;
and announcement of selected projects.
Until more comprehensive guidance is issued, all requests for CMAQ
funding involving public/private initiatives must be forwarded by the
FHWA and the FTA field offices to Headquarters for review and prior
concurrence prior to project approval.
Eligible costs under this section may not include costs to fund an
obligation imposed on private sector or non-profit entities under the
Clean Air Act or any other Federal law. For example, CMAQ funds may not
be used to fund mandatory control measures such as Stage II Vapor
Recovery requirements placed on fuel sellers.
The TEA-21 contained special provisions for alternative fuel
projects that are part of a public/private partnership. For purchase of
privately-owned vehicles or fleets using alternative fuels, activities
eligible for CMAQ funding is limited to the incremental cost of an
alternative fueled vehicle compared to a conventionally fueled vehicle.
Further, if other governmental funds are used for vehicle purchase in
addition to CMAQ funds, such governmental funds must be applied to the
incremental cost before CMAQ funds are applied. For transit vehicles
and other publicly-owned vehicles or fleets, the provisions of the
March 7, 1996, Guidance continue to apply. Fleet conversions no longer
need to be specifically identified or included in the SIP or
maintenance plan in order to be eligible for CMAQ funding. It is
recommended however, that consideration of such projects be coordinated
with air quality agencies prior to selection for funding under the CMAQ
program. This coordination will ensure that such projects are
consistent with SIP strategies to attain the NAAQS or in maintenance
plans to ensure continued maintenance of the NAAQS.
Decisions over which projects and programs to fund under CMAQ
should continue to be made through a cooperative process involving the
State departments of transportation, affected MPOs, and State and local
air quality agencies. All projects funded with CMAQ funds must be
included in conforming transportation plans and TIPs in accordance with
metropolitan planning regulations of October 28, 1993 (23 CFR 450.300)
and the transportation conformity requirements (40 CFR parts 51 and 93,
August 15, 1997).
4. Other Provisions--Federal Share Increase for Transit Vehicle Control
The TEA-21 amends 23 U.S. C. 120 (c) to allow an increased Federal
share for transit vehicle priority control systems. Section 120 of
Title 23 (see Attachment 3) is amended to provide that the Federal
share of funding for priority control systems for transit vehicles may
be up to 100 percent.
II. Questions and Issues on Which the FHWA and the FTA Seek Input
The FHWA and the FTA would like comments on the following questions
from interested parties, as well as suggestions on how these issues
might be addressed in final CMAQ guidance:
1. Public-Private Partnerships: TEA-21 provides greater access to
CMAQ funds for projects which are cooperatively implemented by the
public and private sectors and/or non-profit entities. The new statute
now allows private and non-profit entities to own and operate land,
vehicles, and facilities with CMAQ program funds. Three key changes to
eligibility follow: (1) Proposed programs or projects no longer are
required to be under the primary control of the cooperating public
agency; (2) the activity to be funded no longer is required to be
normally a public-sector responsibility; and (3) it is no longer
necessary to demonstrate that private ownership of a CMAQ-funded
project is cost-effective. Below are key questions raised by this new,
broad flexibility now available to fund public-private initiatives.
1.a. Concerns arise about unfair competitive advantage when public
funds will be used for a project owned and/or operated by a private
entity. Are there ways to ensure that the public funding (CMAQ) is
limited to the production of a public benefit--air quality improvement?
1.b. In implementing this provision, the FHWA and the FTA believe
it is important to maintain an open and participatory process in the
selection of projects or activities to receive CMAQ funding. How can
the Federal, State, and local agencies insure that an open process for
project selection is preserved?
1.c. What safeguards, agreements or other mechanisms should be
employed to protect the public investment and insure that joint public/
private projects funded under the CMAQ program are used for their
intended public purpose, which is to improve air quality?
1.d What are the implications of these new flexibilities on the
transportation/air quality planning process? For transportation
2. Telecommuting: Currently, eligibility for expenses related to
telecommuting programs is limited to planning, technical and
feasibility studies, training, coordination and promotion. Purchase of
computer and office equipment for public agencies and related
activities are not eligible. Should CMAQ eligibility be expanded to
include these costs?
3. Alternative Fuel Vehicles: Under the interim guidance and under
TEA-21, CMAQ eligibility under the public-private partnership
provisions is limited to the incremental cost of a new alternative fuel
vehicles as compared to a conventionally fueled vehicle of the same
type. Should this policy be extended to projects that will provide for
the use of alternative fuels for publicly owned vehicles and vehicle
fleets (other than vehicles used for public transit services)?
4. Traffic Calming Measures: While traffic calming is generally
considered to have positive environmental impacts, when viewed in the
context of the speed-emissions profiles inherent in the MOBILE 5a
model, traffic calming measures appear to increase hydrocarbon and CO
emissions by lowering speeds. Should traffic calming projects be
categorically excluded from CMAQ funding or should they be considered
for eligibility on a case-by-case basis?
5. Experimental Pilot Projects: A July 1995 revision to the CMAQ
Guidance created the flexibility to fund ``experimental pilot''
projects. The types of projects were not specified. The hope was to
encourage innovative activities that held promise for reducing
emissions. To date, this provision has been little used. What can the
FHWA and the FTA do to encourage the implementation of experimental
projects under this provision?
6. Fare/Fee Subsidy Program: The current CMAQ Guidance allows for
partial, short-term subsidies of transit/paratransit fares as a means
of encouraging transit use. Transit agencies have used this provision
to offer reduced fares on ``ozone alert'' days. Should this provision
be changed to allow ``free fares''? Should the provision be loosened to
allow a broader period of coverage, i.e., throughout the high-ozone
season rather that individual episodes?
7. High Occupancy Toll (HOT) Lanes: A congestion pricing strategy
that allows limited use of High Occupancy Vehicle (HOV) lanes by single
occupant vehicles is known as a HOT lane. Should projects to fund the
development and/or operation of HOT lanes be eligible under the CMAQ
8. Reporting Requirements: The reporting requirements under ISTEA
have enabled the FHWA and the FTA to collect valuable information about
the uses of CMAQ funds and benefits of CMAQ-funded projects. Do you
have any suggestions on how to improve upon the quality of data and
information provided in annual reports? Would you use an electronic
reporting format if that option were available to you? Do you have any
suggestions on how to improve the reporting requirements and minimize
the administrative burden of reporting on CMAQ-funded projects?
[FR Doc. 98-28475 Filed 10-23-98; 8:45 am]
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