23 U.S.C. § 149 — Congestion mitigation and air quality improvement program

(a) Establishment. The Secretary of Transportation must create and run a congestion mitigation and air quality improvement program, following the rest of this section. (b) Eligible Projects. Except where subsections (d) and (m) say otherwise, a state can only spend the highway money it gets under section 104(b)(4) on this program in an area that is, or was, officially designated a "nonattainment area" for ozone, carbon monoxide, or particulate matter under the Clean Air Act, or that was designated nonattainment after December 31, 1997, or that must file Clean Air Act maintenance plans. On top of that location test, the project or program must also fit one of these categories: the Secretary, after consulting the EPA, decides — based on published EPA information — that the project will likely help meet or maintain the national air quality standard, and either the project is proven highly effective at cutting pollution or, when that data isn't available, it fits a strategy type EPA has already described; the project is in a state's EPA-approved implementation plan and will improve air quality; the Secretary, after consulting EPA, decides the project will likely help meet or maintain air quality standards, whether by cutting miles driven, cutting fuel use, or some other way; the project sets up or runs traffic monitoring, management, or control, including advanced truck stop electrification, and the Secretary decides it will likely help air quality; the project improves traffic flow — better signals, carpool lanes, better intersections, turn lanes, smarter traffic management, or similar projects that were already eligible before this rule, including better emergency response or real-time traffic and transit information; the project buys integrated, interoperable emergency communications equipment; the project shifts driving to off-peak hours or other travel modes, raises how many people ride in each vehicle, or cuts road demand through telecommuting, ridesharing, carsharing, bike or scooter sharing, flexible work hours, or pricing; the project buys verified diesel replacement or retrofit technology for motor vehicles, or for construction or port equipment in nonattainment or maintenance areas funded under this title or the transit title, runs outreach to diesel equipment owners about replacements or retrofits, or buys medium- or heavy-duty zero-emission vehicles and their charging equipment; the project installs vehicle-to-infrastructure communication equipment; the project modernizes or fixes up a lock and dam connected to the federal highway system, if the Secretary decides it will likely help air quality; or the project is on a marine highway route the Secretary has designated, connects to the federal highway system, and the Secretary decides it will likely help air quality. (c) Special Rules. A state may use this money on projects in areas that are nonattainment for ozone or carbon monoxide and also for transportation-related particulate matter ("PM-10"), without regard to normal limits on which kind of air problem a project must address. A state may use this money to build electric vehicle charging stations or natural gas refueling stations for trucks and other vehicles anywhere in the state — prioritizing corridors designated under section 151 — except where federal law bars commercial services for drivers along that route. No money under this section may pay for new road capacity open to single-occupant vehicles, unless it's a carpool lane open to single-occupant vehicles only outside peak travel times. And each year, a state can spend no more than 10 percent of its section 104(b)(4) money on the lock-and-dam and marine-highway projects described above. (d) States Flexibility. A state that has never had a Clean Air Act nonattainment area may use this money for any project that would qualify as if it were in a nonattainment area, or that qualifies under the separate surface transportation block grant program. A state that does have a nonattainment or maintenance area may also spend some money more flexibly if it received more money in fiscal year 2009, under an older funding formula, than its nonattainment and maintenance population would justify under the newer formula. In that case, the flexible amount equals the state's section 104(b)(4) money — after setting aside the amount described in subsection (k) — multiplied by a ratio: the share of the state's fiscal-year-2009 money it was allowed to spend anywhere in the state under the pre-2012 rules, divided by its total fiscal-year-2009 apportionment under those same pre-2012 rules. If a new nonattainment area is created, or an old one becomes an attainment area, the Secretary must adjust how much that state can spend flexibly, following the approach used before 2012. (e) Applicability of Planning Requirements. Spending this money must follow the normal transportation planning rules in sections 134 and 135. (f) Partnerships With Nongovernmental Entities. A metropolitan planning organization, state transportation department, or other project sponsor may team up with any public, private, or nonprofit group to carry out a project under this section. That partner may own or run land, facilities, vehicles, or other assets tied to the project; share project costs; handle administration, construction, management, or operations; or take part in any other way the Secretary approves. A state may hand its section 104(b)(4) money to one of these partners. For projects that bring alternative fuels to private vehicles or fleets, eligible costs can include refueling infrastructure — including infrastructure supporting new low-emission technology — and other capital costs, but funding can only cover the extra cost of an alternative-fuel vehicle over a regular one, the part a private party would otherwise have paid, after subtracting any other government contributions. This money can't be used to pay for something a private party is already legally required to do under the Clean Air Act or any other federal law. (g) Cost-Effective Emission Reduction Guidance. "Administrator" means the head of the EPA. A "diesel replacement or retrofit" means replacing, retrofitting, repowering, rebuilding, adding after-treatment to, or otherwise upgrading diesel equipment, as the Administrator defines it. The Administrator, working with the Secretary, must publish a list of diesel replacement and retrofit technologies and technical information, covering technologies already certified or verified by the EPA, the California Air Resources Board, or a similar recognized body; technologies with an approvable verification test plan submitted within 18 months of this rule; and available data on how well and how cheaply each technology cuts emissions, factoring in air quality and health effects. States and metro planning organizations must give priority — in areas that fail or barely maintain the fine-particulate (PM2.5) standard — to projects proven to cut PM2.5, including diesel replacements and retrofits, when handing out this program's money. Nothing here changes any other authority or restriction under the Clean Air Act or any other law, other than the congestion-mitigation-and-air-quality rules in this title. (h) Interagency Consultation. The Secretary must encourage states and metro planning organizations to consult local air quality agencies in nonattainment and maintenance areas about the expected emission reductions from proposed projects. (i) Evaluation and Assessment of Projects. The Secretary must keep and share a database tracking the impact of funded projects — including each project's name, location, sponsor, cost, and, when measured, its cost-effectiveness based on reduced congestion and emissions. This database must be made publicly available online. The Secretary, with the EPA, must regularly evaluate project types and build a table showing how cost-effective different kinds of projects are, such as dollars spent per ton of emissions cut, measured over several timeframes matching the planning periods in section 134. States and metro planning organizations must consider that table when picking projects or writing performance plans under subsection (l). (j) Optional Programmatic Eligibility. A metropolitan planning organization may choose to test a whole package of projects together — through modeling or other means — to show the required emissions reduction, instead of testing each project alone. If that package-level test succeeds, every project in the package becomes eligible for funding without needing to separately prove its own emissions reduction. (k) Priority for Use of Funds in PM2.5 Areas. A state with a fine-particulate (PM2.5) nonattainment or maintenance area must spend 25 percent of the part of its section 104(b)(4) money that's based on that area's population on projects that cut PM2.5 emissions there — including diesel replacements or retrofits — while trying, where practical, to help disadvantaged or low-income communities in or near that area. A state or metro planning organization can meet that 25-percent rule by installing diesel emission control equipment on off-road or on-road diesel machines used on a highway construction project inside a PM2.5 area, or by funding the most cost-effective projects that cut emissions from port-related equipment and vehicles operating there. States with very low population density — 80 people or fewer per square mile — are excused from this 25-percent rule and the related priority rule in subsection (g) for an area if that area has no projects counted in its transportation plan's emissions analysis, and if cars and trucks there barely contribute to its PM2.5 problem. When that exception applies, the state's overall set-aside shrinks in proportion to that area's share of the state's PM2.5-affected population. (l) Performance Plan. Every metro planning organization serving a large transportation area — over 1,000,000 people — that includes a nonattainment or maintenance area must write a performance plan. It must set a starting baseline for traffic congestion and roadway emissions; describe progress toward the air-quality and congestion targets set under section 150(d); and list the projects being funded under this section and how they'll help meet those targets. The plan must be updated every two years, along with a report on how well the previous plan's projects actually met its targets. On request, the Secretary may help a metro planning organization track how its plan is affecting minority or low-income communities — but this doesn't let the Secretary change the official performance measures or targets, or create any new federal requirement. (m) Operating Assistance. A state may use section 104(b)(4) money for operating costs — not just building things — under the transit law, or on a system that already received this kind of funding in fiscal year 2012, or on a state-supported Amtrak route with a valid cost-sharing agreement, as long as that route currently has no nonattainment areas under subsection (d). That operating assistance has no time limit if it's for that kind of Amtrak route, or for a transit system in a non-urbanized area, or in an urbanized area with 200,000 people or fewer.