§ 149. — Congestion mitigation and air quality improvement program.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 23USC149]
TITLE 23--HIGHWAYS
CHAPTER 1--FEDERAL-AID HIGHWAYS
SUBCHAPTER I--GENERAL PROVISIONS
Sec. 149. Congestion mitigation and air quality improvement
program
(a) Establishment.--The Secretary shall establish and implement a
congestion mitigation and air quality improvement program in accordance
with this section.
(b) Eligible Projects.--Except as provided in subsection (c), a
State may obligate funds apportioned to it under section 104(b)(2) for
the congestion mitigation and air quality improvement program only for a
transportation project or program if the project or program is for an
area in the State that is or was designated as a nonattainment area for
ozone, carbon monoxide, or particulate matter under section 107(d) of
the Clean Air Act (42 U.S.C. 7407(d)) and classified pursuant to section
181(a), 186(a), 188(a), or 188(b) of the Clean Air Act (42 U.S.C.
7511(a), 7512(a), 7513(a), or 7513(b)) or is or was designated as a
nonattainment area under such section 107(d) after December 31, 1997,
and--
(1)(A) if the Secretary, after consultation with the
Administrator of the Environmental Protection Agency, determines, on
the basis of information published by the Environmental Protection
Agency pursuant to section 108(f)(1)(A) of the Clean Air Act (other
than clause (xvi) of such section), that the project or program is
likely to contribute to--
(i) the attainment of a national ambient air quality
standard; or
(ii) the maintenance of a national ambient air quality
standard in a maintenance area; or
(B) in any case in which such information is not available, if
the Secretary, after such consultation, determines that the project
or program is part of a program, method, or strategy described in
such section;
(2) if the project or program is included in a State
implementation plan that has been approved pursuant to the Clean Air
Act and the project will have air quality benefits;
(3) the Secretary, after consultation with the Administrator of
the Environmental Protection Agency, determines that the project or
program is likely to contribute to the attainment of a national
ambient air quality standard, whether through reductions in vehicle
miles traveled, fuel consumption, or through other factors;
(4) to establish or operate a traffic monitoring, management,
and control facility or program if the Secretary, after consultation
with the Administrator of the Environmental Protection Agency,
determines that the facility or program is likely to contribute to
the attainment of a national ambient air quality standard; or
(5) if the program or project improves traffic flow, including
projects to improve signalization, construct high occupancy vehicle
lanes, improve intersections, and implement intelligent
transportation system strategies and such other projects that are
eligible for assistance under this section on the day before the
date of enactment of this paragraph.
No funds may be provided under this section for a project which will
result in the construction of new capacity available to single occupant
vehicles unless the project consists of a high occupancy vehicle
facility available to single occupant vehicles only at other than peak
travel times. In areas of a State which are nonattainment for ozone or
carbon monoxide, or both, and for PM-10 resulting from transportation
activities, the State may obligate such funds for any project or program
under paragraph (1) or (2) without regard to any limitation of the
Department of Transportation relating to the type of ambient air quality
standard such project or program addresses.
(c) States Receiving Minimum Apportionment.--
(1) States without a nonattainment area.--If a State does not
have, and never has had, a nonattainment area designated under the
Clean Air Act (42 U.S.C. 7401 et seq.), the State may use funds
apportioned to the State under section 104(b)(2) for any project
eligible under the surface transportation program under section 133.
(2) States with a nonattainment area.--If a State has a
nonattainment area or maintenance area and receives funds under
section 104(b)(2)(D) above the amount of funds that the State would
have received based on its nonattainment and maintenance area
population under subparagraphs (B) and (C) of section 104(b)(2), the
State may use that portion of the funds not based on its
nonattainment and maintenance area population under subparagraphs
(B) and (C) of section 104(b)(2) for any project in the State
eligible under section 133.
(d) Applicability of Planning Requirements.--Programming and
expenditure of funds for projects under this section shall be consistent
with the requirements of sections 134 and 135 of this title.
(e) Partnerships With Nongovernmental Entities.--
(1) In general.--Notwithstanding any other provision of this
title and in accordance with this subsection, a metropolitan
planning organization, State transportation department, or other
project sponsor may enter into an agreement with any public,
private, or nonprofit entity to cooperatively implement any project
carried out under this section.
(2) Forms of participation by entities.--Participation by an
entity under paragraph (1) may consist of--
(A) ownership or operation of any land, facility, vehicle,
or other physical asset associated with the project;
(B) cost sharing of any project expense;
(C) carrying out of administration, construction management,
project management, project operation, or any other management
or operational duty associated with the project; and
(D) any other form of participation approved by the
Secretary.
(3) Allocation to entities.--A State may allocate funds
apportioned under section 104(b)(2) to an entity described in
paragraph (1).
(4) Alternative fuel projects.--In the case of a project that
will provide for the use of alternative fuels by privately owned
vehicles or vehicle fleets, activities eligible for funding under
this subsection--
(A) may include the costs of vehicle refueling
infrastructure, including infrastructure that would support the
development, production, and use of emerging technologies that
reduce emissions of air pollutants from motor vehicles, and
other capital investments associated with the project;
(B) shall include only the incremental cost of an
alternative fueled vehicle, as compared to a conventionally
fueled vehicle, that would otherwise be borne by a private
party; and
(C) shall apply other governmental financial purchase
contributions in the calculation of net incremental cost.
(5) Prohibition on federal participation with respect to
required activities.--A Federal participation payment under this
subsection may not be made to an entity to fund an obligation
imposed under the Clean Air Act (42 U.S.C. 7401 et seq.) or any
other Federal law.
(Added Pub. L. 93-87, title I, Sec. 142(a), Aug. 13, 1973, 87 Stat. 272;
amended Pub. L. 102-240, title I, Sec. 1008(a), Dec. 18, 1991, 105 Stat.
1932; Pub. L. 102-388, title III, Sec. 380, Oct. 6, 1992, 106 Stat.
1562; Pub. L. 104-59, title III, Sec. 319(a)(1), (b), Nov. 28, 1995, 109
Stat. 588, 589; Pub. L. 104-88, title IV, Sec. 405(a)(2), (b), Dec. 29,
1995, 109 Stat. 956, 957; Pub. L. 105-178, title I, Sec. 1110(a)-(d)(1),
June 9, 1998, 112 Stat. 142, 143.)
References in Text
The Clean Air Act, referred to in subsecs. (b)(2), (c)(1), and
(e)(5), is act July 14, 1955, ch. 360, 69 Stat. 322, as amended, which
is classified generally to chapter 85 (Sec. 7401 et seq.) of Title 42,
The Public Health and Welfare. Section 108(f)(1)(A) of the Act is
classified to section 7408(f)(1)(A) of Title 42. For complete
classification of this Act to the Code, see Short Title note set out
under section 7401 of Title 42 and Tables.
The date of enactment of this paragraph, referred to in subsec.
(b)(5), is the date of enactment of Pub. L. 105-178, which was approved
June 9, 1998.
Amendments
1998--Subsec. (a). Pub. L. 105-178, Sec. 1110(a), substituted
``shall establish and implement'' for ``shall establish''.
Subsec. (b). Pub. L. 105-178, Sec. 1110(b)(1), in introductory
provisions, substituted ``that is or was designated as a nonattainment
area for ozone, carbon monoxide, or particulate matter under section
107(d) of the Clean Air Act (42 U.S.C. 7407(d)) and classified pursuant
to section 181(a), 186(a), 188(a), or 188(b) of the Clean Air Act (42
U.S.C. 7511(a), 7512(a), 7513(a), or 7513(b)) or is or was designated as
a nonattainment area under such section 107(d) after December 31,
1997,'' for ``that was designated as a nonattainment area under section
107(d) of the Clean Air Act (42 U.S.C. 7407(d)) during any part of
fiscal year 1994''.
Subsec. (b)(1)(A). Pub. L. 105-178, Sec. 1110(b)(2), substituted
``clause (xvi) of such section'' for ``clauses (xii) and (xvi) of such
section''.
Subsec. (b)(1)(A)(ii). Pub. L. 105-178, Sec. 1110(b)(3), substituted
``a maintenance area'' for ``an area that was designated as a
nonattainment area but that was later redesignated by the Administrator
of the Environmental Protection Agency as an attainment area under
section 107(d) of the Clean Air Act (42 U.S.C. 7407(d))''.
Subsec. (b)(5). Pub. L. 105-178, Sec. 1110(b)(4)-(6), added par.
(5).
Subsec. (c). Pub. L. 105-178, Sec. 1110(c), added subsec. (c) and
struck out heading and text of former subsec. (c). Text read as follows:
``If a State does not have a nonattainment area for ozone or carbon
monoxide under the Clean Air Act located within its borders, the State
may use funds apportioned to it under section 104(b)(2) for any project
eligible for assistance under the surface transportation program.''
Subsec. (e). Pub. L. 105-178, Sec. 1110(d)(1), added subsec. (e).
1995--Subsec. (b). Pub. L. 104-59, Sec. 319(a)(1)(A), in
introductory provisions, inserted ``if the project or program is for an
area in the State that was designated as a nonattainment area under
section 107(d) of the Clean Air Act (42 U.S.C. 7407(d)) during any part
of fiscal year 1994 and'' after ``project or program''.
Subsec. (b)(1)(A). Pub. L. 104-59, Sec. 319(a)(1)(B), substituted
``contribute to--'' and cls. (i) and (ii) for ``contribute to the
attainment of a national ambient air quality standard; or''.
Subsec. (b)(2). Pub. L. 104-59, Sec. 319(b)(1), struck out ``or'' at
end.
Subsec. (b)(3). Pub. L. 104-88, Sec. 405(b)(1), inserted ``or''
after semicolon at end.
Pub. L. 104-59, Sec. 319(b)(2), substituted a semicolon for period
at end.
Subsec. (b)(4). Pub. L. 104-88, Sec. 405(b)(2), substituted a period
for ``; or'' at end.
Pub. L. 104-59, Sec. 319(b)(3), as amended by Pub. L. 104-88,
Sec. 405(a)(2), added par. (4).
1992--Subsec. (b). Pub. L. 102-388 inserted at end ``In areas of a
State which are nonattainment for ozone or carbon monoxide, or both, and
for PM-10 resulting from transportation activities, the State may
obligate such funds for any project or program under paragraph (1) or
(2) without regard to any limitation of the Department of Transportation
relating to the type of ambient air quality standard such project or
program addresses.''
1991--Pub. L. 102-240 substituted section catchline for one which
read: ``Truck lanes'' and amended text generally. Prior to amendment,
text read as follows: ``The Secretary may approve as a project on any
Federal-aid system the construction of exclusive or preferential truck
lanes.''
Effective Date of 1995 Amendment
Amendment by section 405(b) of Pub. L. 104-88 effective Jan. 1,
1996, see section 2 of Pub. L. 104-88, set out as an Effective Date note
under section 701 of Title 49, Transportation.
Section 405(a) of Pub. L. 104-88 provided that the amendment made by
that section is effective Nov. 28, 1995.
Effective Date of 1991 Amendment
Amendment by Pub. L. 102-240 effective Dec. 18, 1991, and applicable
to funds authorized to be appropriated or made available after Sept. 30,
1991, and, with certain exceptions, not applicable to funds appropriated
or made available on or before Sept. 30, 1991, see section 1100 of Pub.
L. 102-240, set out as a note under section 104 of this title.
Determination by Secretary; Water-Phased Hydrocarbon Fuel Emulsion
Technologies
Pub. L. 105-178, title I, Sec. 1110(d)(2), June 9, 1998, 112 Stat.
144, as amended by Pub. L. 105-206, title IX, Sec. 9002(g), July 22,
1998, 112 Stat. 836, provided that: ``For the purposes of section 149(e)
of title 23, United States Code, the Secretary shall determine in
accordance with the procedures specified in section 149(b) of such title
whether water-phased hydrocarbon fuel emulsion technologies that consist
of a hydrocarbon base and water in an amount not less than 20 percent by
volume reduce emissions of hydrocarbon, particulate matter, carbon
monoxide, or nitrogen oxide from motor vehicles.''
Study of CMAQ Program
Pub. L. 105-178, title I, Sec. 1110(e), June 9, 1998, 112 Stat. 144,
provided that:
``(1) In general.--The Secretary and the Administrator of the
Environmental Protection Agency shall enter into arrangements with the
National Academy of Sciences to complete, by not later than January 1,
2001, a study of the congestion mitigation and air quality improvement
program under section 149 of title 23, United States Code. The study
shall, at a minimum--
``(A) evaluate the air quality impacts of emissions from motor
vehicles;
``(B) evaluate the negative effects of traffic congestion,
including the economic effects of time lost due to congestion;
``(C) determine the amount of funds obligated under the program
and make a comprehensive analysis of the types of projects funded
under the program;
``(D) evaluate the emissions reductions attributable to projects
of various types that have been funded under the program;
``(E) assess the effectiveness, including the quantitative and
nonquantitative benefits, of projects funded under the program and
include, in the assessment, an estimate of the cost per ton of
pollution reduction;
``(F) assess the cost effectiveness of projects funded under the
program with respect to congestion mitigation;
``(G) compare--
``(i) the costs of achieving the air pollutant emissions
reductions achieved under the program; to
``(ii) the costs that would be incurred if similar
reductions were achieved by other measures, including pollution
controls on stationary sources;
``(H) include recommendations on improvements, including other
types of projects, that will increase the overall effectiveness of
the program;
``(I) include recommendations on expanding the scope of the
program to address traffic-related pollutants that, as of the date
of the study, are not addressed by the program.
``(2) Report.--Not later than January 1, 2000, the National Academy
of Sciences shall transmit to the Secretary, the Committee on
Transportation and Infrastructure and the Committee on Commerce of the
House of Representatives, and the Committee on Environment and Public
Works of the Senate a report on the results of the study with
recommendations for modifications to the congestion mitigation and air
quality improvement program in light of the results of the study.
``(3) Funding.--Before making the apportionment of funds under
section 104(b)(2) of title 23, United States Code, for each of fiscal
years 1999 and 2000, the Secretary shall deduct from the amount to be
apportioned under such section for such fiscal year, and make available,
$500,000 for such fiscal year to carry out this subsection.''
Effect of Limitation on Apportionment
Notwithstanding any other provision of law, for each of fiscal years
1996 and 1997, amendment by section 319(a)(1) of Pub. L. 104-59 not to
affect any apportionment adjustments under section 1015 of the
Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-
240, see section 319(c) of Pub. L. 104-59, set out as a note under
section 104 of this title.
Value Pricing Pilot Program
Pub. L. 102-240, title I, Sec. 1012(b), Dec. 18, 1991, 105 Stat.
1938, as amended by Pub. L. 104-59, title III, Sec. 325(e), Nov. 28,
1995, 109 Stat. 592; Pub. L. 105-178, title I, Sec. 1216(a), June 9,
1998, 112 Stat. 211; Pub. L. 105-206, title IX, Sec. 9006(b), July 22,
1998, 112 Stat. 848, provided that:
``(1) The Secretary shall solicit the participation of State and
local governments and public authorities for one or more value pricing
pilot programs. The Secretary may enter into cooperative agreements with
as many as 15 such State or local governments or public authorities to
establish, maintain, and monitor value pricing programs.
``(2) Notwithstanding section 129 of title 23, United States Code,
the Federal share payable for such programs shall be 80 percent. The
Secretary shall fund all preimplementation costs and project design, and
all of the development and other start up costs of such projects,
including salaries and expenses, for a period of at least 1 year, and
thereafter until such time that sufficient revenues are being generated
by the program to fund its operating costs without Federal
participation, except that the Secretary may not fund the
preimplementation or implementation costs of any project for more than 3
years.
``(3) Revenues generated by any pilot project under this subsection
must be applied to projects eligible under such title.
``(4) Notwithstanding sections 129 and 301 of title 23, United
States Code, the Secretary shall allow the use of tolls on the
Interstate System as part of any value pricing pilot program under this
subsection.
``(5) The Secretary shall monitor the effect of such programs for a
period of at least 10 years, and shall report to the Committee on
Environment and Public Works of the Senate and the Committee on
Transportation and Infrastructure of the House of Representatives every
2 years on the effects such programs are having on driver behavior,
traffic volume, transit ridership, air quality, and availability of
funds for transportation programs.
``(6) HOV passenger requirements.--Notwithstanding section 102(a) of
title 23, United States Code, a State may permit vehicles with fewer
than 2 occupants to operate in high occupancy vehicle lanes if the
vehicles are part of a value pricing pilot program under this
subsection.
``(7) Financial effects on low-income drivers.--Any value pricing
pilot program under this subsection shall include, if appropriate, an
analysis of the potential effects of the pilot program on low-income
drivers and may include mitigation measures to deal with any potential
adverse financial effects on low-income drivers.
``(8) Funding.--
``(A) Availability.--Funds allocated by the Secretary to a State
under this subsection shall remain available for obligation by the
State for a period of 3 years after the last day of the fiscal year
for which the funds are authorized.
``(B) Use of unallocated funds.--If the total amount of funds
made available from the Highway Trust Fund to carry out this
subsection for fiscal year 1998 and fiscal years thereafter but not
allocated exceeds $8,000,000 as of September 30 of any year, the
excess amount--
``(i) shall be apportioned in the following fiscal year by
the Secretary to all States in accordance with section 104(b)(3)
of title 23, United States Code;
``(ii) shall be considered to be a sum made available for
expenditure on the surface transportation program, except that
the amount shall not be subject to section 133(d) of such title;
and
``(iii) shall be available for any purpose eligible for
funding under section 133 of such title.
``(C) Contract authority.--Funds authorized to carry out this
subsection shall be available for obligation in the same manner as
if the funds were apportioned under chapter 1 of title 23, United
States Code; except that the Federal share of the cost of any
project under this subsection and the availability of funds
authorized to carry out this subsection shall be determined in
accordance with this subsection.''
Section Referred to in Other Sections
This section is referred to in sections 104, 106, 322 of this title.
