[Federal Register Volume 89, Number 215 (Wednesday, November 6, 2024)]
[Notices]
[Pages 88108-88111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 
www.regulations.gov 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 http://www.regulations.gov 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 http://www.regulations.gov, 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 http://www.regulations.gov using the docket number listed above. Electronic 
retrieval help and guidelines are also available at http://www.regulations.gov. An electronic copy of this document also may be 
downloaded from the Office of the Federal Register's website at 
www.FederalRegister.gov and the Government Publishing Office's website 
at www.GovInfo.gov.

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\ https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/2013_guidance/index.cfm.
    \2\ https://www.fhwa.dot.gov/environment/air_quality/cmaq/policy_and_guidance/cmaq13ig.cfm.
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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\ https://www.fhwa.dot.gov/environment/air_quality/cmaq/reference/cost_effectiveness_tables/index.cfm.
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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\ https://www.fhwa.dot.gov/environment/air_quality/cmaq/measures/cmaq_applicability/index.cfm.
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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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