Section 43-4-1303 - Nonattainment area air pollution mitigation enterprise - creation - board - powers and duties - rules - fees - fund(1)(a) The nonattainment area air pollution mitigation enterprise is created in the department. The enterprise is and operates as a government-owned business within the department in order to execute its business purpose as specified in subsection (3) of this section by exercising the powers and performing the duties and functions set forth in this section.(b) The enterprise is a type 1 entity, as defined in section 24-1-105, and exercises its powers and performs its duties and functions under the department.(2)(a) The governing board of the enterprise consists of up to seven members as follows: (I) Five members appointed by the governor with the consent of the senate as follows:(A) One member with expertise on environmental, environmental justice, or public health issues;(B) One member who is an elected official of a disproportionately impacted community that is a member of the Denver regional council of governments;(C) One member who is an elected official of a local government that is a member of the north front range metropolitan planning organization; and(D) Up to two members who are representatives of disproportionately impacted communities;(II) The executive director of the department of transportation or the executive director's designee; and(III) The executive director of the department of public health and environment or the executive director's designee.(b) Appointed members of the board serve at the pleasure of the governor. The other board members serve for as long as they hold their executive director positions or are designated to serve by an executive director.(3) The business purpose of the enterprise is to mitigate the environmental and health impacts of increased air pollution from motor vehicle emissions in nonattainment areas that results from the rapid and continuing growth in retail deliveries made by motor vehicles and in prearranged rides provided by transportation network companies by providing funding for eligible projects that reduce traffic, including demand management projects that encourage alternatives to driving alone or that directly reduce air pollution, such as retrofitting of construction equipment, construction of roadside vegetation barriers, and planting trees along medians. To allow the enterprise to accomplish this purpose and fully exercise its powers and duties through the board, the enterprise may:(a) Impose an air pollution mitigation per ride fee and an air pollution mitigation retail delivery fee as authorized by subsections (7) and (8) of this section;(b) Issue grants, loans, and rebates as authorized by subsection (9) of this section; and(c) Issue revenue bonds payable from the revenue and other available money of the enterprise.(4) The enterprise constitutes an enterprise for purposes of section 20 of article X of the state constitution so long as it retains the authority to issue revenue bonds and receives less than ten percent of its total annual revenue in grants from all Colorado state and local governments combined. So long as it constitutes an enterprise pursuant to this subsection (4), the enterprise is not subject to section 20 of article X of the state constitution.(5)(a) The nonattainment area air pollution mitigation enterprise fund is hereby created in the state treasury. The fund consists of air pollution mitigation per ride fee revenue and air pollution mitigation retail delivery fee revenue credited to the fund pursuant to subsections (7) and (8) of this section, any monetary gifts, grants, donations, or other payments received by the enterprise, any federal money that may be credited to the fund, and any other money that the general assembly may appropriate or transfer to the fund. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund. Money in the fund is continuously appropriated to the enterprise for the purposes set forth in this part 13 and to pay the enterprise's reasonable and necessary operating expenses, including the repayment of any loan received pursuant to subsection (5)(b) of this section.(b) The department may transfer money from any legally available source to the enterprise for the purpose of defraying expenses incurred by the enterprise before it receives fee revenue or revenue bond proceeds. The enterprise may accept and expend any money so transferred, and, notwithstanding any state fiscal rule or generally accepted accounting principle that could otherwise be interpreted to require a contrary conclusion, such a transfer is a loan from the department to the enterprise that is required to be repaid and is not a grant for purposes of section 20 (2)(d) of article X of the state constitution or as defined in section 24-77-102 (7). All money transferred as a loan to the enterprise shall be credited to the nonattainment area air pollution mitigation enterprise initial expenses fund, which is hereby created in the state treasury, and loan liabilities that are recorded in the nonattainment area air pollution mitigation enterprise initial expenses fund but that are not required to be paid in the current fiscal year shall not be considered when calculating sufficient statutory fund balance for purposes of section 24-75-109. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the nonattainment area air pollution mitigation enterprise initial expenses fund to the fund. The nonattainment area air pollution mitigation enterprise initial expenses fund is continuously appropriated to the enterprise for the purpose of defraying expenses incurred by the enterprise before it receives fee revenue or revenue bond proceeds. As the enterprise receives sufficient revenue in excess of expenses, the enterprise shall reimburse the department for the principal amount of any loan made by the department plus interest at a rate set by the department.(6) In addition to any other powers and duties specified in this section, the board has the following general powers and duties:(a) To adopt bylaws for the regulation of its affairs and the conduct of its business;(b) To acquire, hold title to, and dispose of real and personal property;(c) In consultation with the executive director of the department, or the executive director's designee, to employ and supervise individuals, professional consultants, and contractors as are necessary in its judgment to carry out its business purpose;(d) To contract with any public or private entity, including state agencies, consultants, and the attorney general's office, for professional and technical assistance, office space and administrative services, advice, and other services related to the conduct of the affairs of the enterprise. The enterprise is encouraged to issue grants on a competitive basis based on written criteria established by the enterprise in advance of any deadlines for the submission of grant applications. The board shall generally avoid using sole-source contracts.(e) To seek, accept, and expend gifts, grants, donations, or other payments from private or public sources for the purposes of this part 13 so long as the total amount of all grants from Colorado state and local governments received in any state fiscal year is less than ten percent of the enterprise's total annual revenue for the state fiscal year. The enterprise shall transmit any money received through gifts, grants, donations, or other payments to the state treasurer, who shall credit the money to the fund.(f) To provide services as set forth in subsection (9) of this section;(g) To publish the processes by which the enterprise accepts applications, the criteria for evaluating applications, and a list of grantees or program participants pursuant to subsection (9) of this section;(h) To promulgate rules for the sole purpose of setting the amounts of the air pollution mitigation per ride fee and the air pollution mitigation retail delivery fee at or below the maximum amounts authorized in this section; and(i) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers and duties granted by this section.(7)(a) In furtherance of its business purpose, beginning in state fiscal year 2022-23, the enterprise shall impose an air pollution mitigation per ride fee to be paid by a transportation network company for each prearranged ride requested and accepted through the company's digital network. For the purpose of minimizing compliance costs for transportation network companies and administrative costs for the state, the department of revenue shall collect the air pollution mitigation per ride fee on behalf of the enterprise, and a transportation network company shall pay the fee to the department of revenue as required by section 40-10.1-607.5 (2).(b) For prearranged rides requested and accepted during state fiscal year 2022-23, the enterprise shall impose the air pollution mitigation per ride fee in a maximum amount of: (I) Eleven and one-quarter cents for each prearranged ride that is a car share ride or for which the driver transports the rider in a zero emissions motor vehicle; and(II) Twenty-two and one-half cents for every other prearranged ride.(c)(I) Except as otherwise provided in subsection (7)(c)(II) of this section, for prearranged rides requested and accepted during state fiscal year 2023-24 or during any subsequent state fiscal year, the enterprise shall impose the air pollution mitigation per ride fee in a maximum amount that is the applicable maximum amount for the prior state fiscal year adjusted for inflation. The enterprise shall notify the department of revenue of the amount of the air pollution mitigation per ride fee to be collected for rides requested and accepted during each state fiscal year no later than March 15 of the calendar year in which the state fiscal year begins, and the department of revenue shall publish the amount no later than April 15 of the calendar year in which the state fiscal year begins.(II) The enterprise is authorized to adjust the amount of the air pollution mitigation per ride fee for prearranged rides requested and accepted during a state fiscal year only if the rate of inflation is positive and cumulative inflation from the time of the last adjustment in the amount of the fee, when applied to the sum of the current air pollution mitigation per ride fee and the current clean fleet per ride fee imposed as required by section 25-7.5-103 (7) and rounded to the nearest whole cent, will result in an increase of at least one whole cent in the total amount of the air pollution mitigation per ride fee and the clean fleet per ride fee paid by a person who requests and accepts a prearranged ride. The amount of cumulative inflation to be applied to the sum of the current air pollution mitigation per ride fee and the current clean fleet per ride fee and rounded to the nearest whole cent is the lesser of actual cumulative inflation or five percent.(d) As required by section 40-10.1-607.5 (3)(a), the department of revenue shall transmit all net air pollution mitigation per ride fee revenue collected to the state treasurer, who shall credit the revenue to the fund.(8)(a) In furtherance of its business purpose, beginning in state fiscal year 2022-23, the enterprise shall impose, and the department of revenue shall collect on behalf of the enterprise, an air pollution mitigation retail delivery fee on each retail delivery. Each retailer who makes a retail delivery shall either collect and remit or elect to pay the air pollution mitigation retail delivery fee in the manner prescribed by the department in accordance with section 43-4-218 (6). For the purpose of minimizing compliance costs for retailers and administrative costs for the state, the department of revenue shall collect and administer the air pollution mitigation retail delivery fee on behalf of the enterprise in the same manner in which it collects and administers the retail delivery fee imposed by section 43-4-218 (3).(b) For retail deliveries of tangible personal property purchased during state fiscal year 2022-23, the enterprise shall impose the air pollution mitigation retail delivery fee in a maximum amount of seven-tenths of one cent.(c)(I) Except as otherwise provided in subsection (8)(c)(II) of this section, for retail deliveries of tangible personal property purchased during state fiscal year 2023-24 or during any subsequent state fiscal year, the enterprise shall impose the air pollution mitigation retail delivery fee in a maximum amount that is the maximum amount for the prior state fiscal year adjusted for inflation. The enterprise shall notify the department of revenue of the amount of the air pollution mitigation retail delivery fee to be collected for retail deliveries of tangible personal property purchased during each state fiscal year no later than March 15 of the calendar year in which the state fiscal year begins, and the department of revenue shall publish the amount no later than April15 of the calendar year in which the state fiscal year begins.(II) The enterprise is authorized to adjust the amount of the air pollution mitigation retail delivery fee for retail deliveries of tangible personal property purchased during a state fiscal year only if the department of revenue adjusts the amount of the retail delivery fee imposed by section 43-4-218 (3) for retail deliveries of tangible personal property purchased during the state fiscal year.(9) In furtherance of its business purpose, and subject to the requirements set forth in this subsection (9), the enterprise is authorized to provide grants to eligible entities for eligible projects. The enterprise shall actively seek input from communities, including but not limited to disproportionately impacted communities, and local governments to mitigate the environmental and health impacts of highway projects, reduce traffic congestion, and improve neighborhood connectivity for communities adjacent to highways. The enterprise shall include mitigation strategies that take into account the input as well as issues and impacts of particular importance to the state such as reduction of greenhouse gas emissions and fine particulate matter.(10)(a) To ensure transparency and accountability, the enterprise shall: (I) No later than June 1, 2022, publish and post on its website a ten-year plan that details how the enterprise will execute its business purpose during state fiscal years 2022-23 through 2031-32 and estimates the amount of funding needed to implement the plan. No later than January 1, 2032, the enterprise shall publish and post on its website a new ten-year plan for state fiscal years 2032-33 through 2041-42.(II) Create, maintain, and regularly update on its website a public accountability dashboard that provides, at a minimum, accessible and transparent summary information regarding the implementation of its ten-year plan, the funding status and progress toward completion of each project that it wholly or partly funds, and its per project and total funding and expenditures;(III) Engage regularly regarding its projects and activities with the public, including but not limited to seeking input from disproportionately impacted communities and interest groups that are likely to be interested in the projects and activities; and(IV) Prepare an annual report regarding its activities and funding and present the report to the transportation commission created in section 43-1-106 (1) and to the transportation and local government and energy and environment committees of the house of representatives and the transportation and energy committee of the senate, or any successor committees. The enterprise shall also post the annual report on its website. Notwithstanding the requirement in section 24-1-136 (11)(a)(I), the requirement to submit the report required in this subsection (10)(a)(IV) to the specified legislative committees continues indefinitely.(b) The enterprise is subject to the open meetings provisions of the "Colorado Sunshine Act of 1972", contained in part 4 of article 6 of title 24, and the "Colorado Open Records Act", part 2 of article 72 of title 24.(c) For purposes of the "Colorado Open Records Act", part 2 of article 72 of title 24, and except as may otherwise be provided by federal law or regulation or state law, the records of the enterprise are public records, as defined in section 24-72-202 (6), regardless of whether the enterprise receives less than ten percent of its total annual revenue in grants, as defined in section 24-77-102 (7), from all Colorado state and local governments combined.(d) The enterprise is a public entity for purposes of part 2 of article 57 of title 11.Amended by 2023 Ch. 153,§ 13, eff. 7/1/2023.Amended by 2022 Ch. 469, §226, eff. 8/10/2022.Added by 2021 Ch. 250, §52, eff. 6/17/2021.L. 2021: Entire part added, (SB 21-260), ch. 1466, p. 1466, § 52, effective June 17. 2022 Ch. 469, was passed without a safety clause. See Colo. Const. art. V, § 1(3).