Technical Support Document

EPA is taking direct final action to approve a revision to the New York State Implementation 

Plan (SIP). The revision establishes transportation conformity regulations for the State of New 

York. EPA reviewed the submittals to assure consistency with the January 2009, “Guidance for 

Implementing the Transportation Conformity State Implementation Plans (SIPs).” The guidance 

document and checklist below can be found at the following link: 

http://www.epa.gov/otaq/stateresources/transconf/policy/420b09001.pdf

Background:

On October 3, 2013, the New York State Department of Environment Environmental 

Conservation submitted a revision to its State Implementation Plan (SIP), to EPA for 

transportation conformity amendments filed for adoption on August 14, 2013, and published in 

the New York State Register (I.D. No. ENV-16-13-0001-A) on September 4, 2013. The SIP 

revision included the repeal of the old Part 240, which was not included in the SIP, and 

replacement with a new Part 240, “Conformity to State or Federal Implementation Plans of 

Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 

U.S.C. or the Federal Transit Laws” and revisions to Part 200, “General Provisions” into Title 6 

of the Official Compilation of Codes, Rules, and Regulations of the State of New York (6 

NYCRR). The Part 240 revisions include cites to portions of the Federal statute and regulations 

that are incorporated by reference into Part 240. This SIP revision addresses the three provisions 

of the EPA Conformity Rule required by CAA section 176(c)(4)(D): 40 CFR 93.105 

(consultation procedures); 40 CFR 93.122(a)(4)(ii) (control measures); and 40 CFR 93.125(c) 

(mitigation measures).

Review: 

INTERAGENCY CONSULTATION 

GENERAL: [93.105(a)]. A conformity SIP shall include procedures for interagency consultation, conflict 

resolution, and public consultation. EPA encourages development of extensive, effective consultation 

procedures that will resolve problems as early in the process as possible.@ 58 FR 62188 at 62201, 

November 24, 1993. The procedures must be written in a manner that gives them full legal effect. 40 

CFR 51.390. 

Consultation is required on the development of the regional 

transportation plan (RTP), the transportation improvement 

program (TIP), on conformity determinations, and on the 

development of state implementation plan (SIP) revisions that 

affect transportation. [93.105(a)(1)]. 

240-2.1
15 

MPOs and State departments of transportation must provide 

reasonable opportunity for consultation with State air agencies, 

local air quality and transportation agencies, DOT, and EPA, 

including consultation on specific processes for interagency 

consultation. [93.105(a)(2)] 

240-2.2

INTERAGENCY CONSULTATION PROCEDURES: GENERAL FACTORS [93.105(b)]. States shall provide 

well defined consultation procedures in the implementation plan. Organizations with responsibilities for 

developing, submitting or implementing provisions of an implementation plan (including MPOs, State 

and local air quality planning agencies, and State and local transportation agencies) must consult with 

each other with and local or regional offices of EPA, the Federal Highway Administration (FHWA), and 

the Federal Transit Administration (FTA). 

The interagency consultation procedures must include, at a minimum, the following general factors: 

procedures that require that agencies consult on the 

development of the implementation plan, the transportation 

plan, the TIP, and associated conformity determinations 

[93.105(b)(1)]; 

240-2.2

the roles and responsibilities of each agency at each stage in the 

SIP development process and the transportation planning 

process, including technical meetings [93.105(b)(2)(i)]; 240-2.6

the organizational level of regular consultation1

[93.105(b)(2)(ii)]; 

240-2.6

a process for circulating (or providing ready access to) draft 

documents and supporting materials for comment before formal 

adoption or publication [93.105(b)(2)(iii)]; 240-2.5

the frequency of, or process for convening, consultation 

meetings and responsibility for establishing meeting agendas 

[93.105(b)(2)(iv)]; 240-2.6(b)1-3

a process for responding to significant comments of involved 

agencies [93.105(b)(2)(v)]; and 240-2.5(4)

a process for the development of a list of the transportation 

control measures (TCMs) that are in the applicable 

implementation plan [93.105(b)(2)(vi)]. 

240-2.7(a)(1-3)

SPECIFIC PROCESSES Interagency consultation procedures shall include the specific processes listed 

below [93.105(c)]: 

A process involving at least the MPO(s), State and local air quality planning and transportation agencies, 

EPA, and the Department of Transportation (DOT) for the following [93.105(c)(1)]: 

 

1 Generally, interagency consultation procedures should include information such as the organizational 

level and procedures for the people who schedule, lead, and attend meetings. 
16

Evaluating and choosing models and associated methods and 

assumptions for hot-spot and regional emissions analyses 

[93.105(c)(1)(i)]; 240-2.8(a)(1-4)

Determining which minor arterials and other projects are 

“regionally significant”2for the regional emissions analysis (in 

addition to those functionally classified as principal arterials or 

higher or fixed guide way systems or extensions that offer an 

alternative to regional highway travel) [93.105(c)(1)(ii)]; 

240-2.8(b)

Determining which projects should be considered to have a 

significant change in design concept and scope from the RTP or 

TIP [93.105(c)(1)(ii)]; 

240-2.8(b)(3)

Evaluating whether otherwise exempt projects (see 93.126 and 

93.127) should be treated as non-exempt where adverse impacts 

are possible for any reason [93.105(c)(1)(iii)]; 

240-2.8(c)

Determining whether past obstacles to implementation of 

transportation control measures (TCMs) in approved SIPs have 

been identified and are being overcome (for TCMs behind SIP 

schedules) [93.105(c)(1)(iv); 93.113(c)(1)]; 

240-2.8(d)(iii)

Determining whether State and local agencies are giving 

maximum priority to approval and funding for TCMs in 

approved SIPs [93.105(c)(1)(iv)]; 240-2.8(d)(1)(i-ii)

Determining whether delays in the implementation of approved 

SIP TCMs necessitate revisions to the SIP to remove or 

substitute such TCMs or other emission reduction measures 

[93.105(c)(1)(iv)]; 

240-2.8(d)(1)(iii)

Notification of transportation plan and TIP amendments which 

only add or delete exempt projects listed in 93.126 and 93.127 

[93.105(c)(1)(v)]; and 240-2.8(f)(1-3)

Choosing conformity tests and methodologies for isolated rural 

nonattainment and maintenance areas, as required by 

93.109(l)(2)(iii) [93.105(c)(1)(vi)]. 240-2.8(i)(1-3)

A process involving at least the MPO and State and local air and transportation agencies for 

[93.105(c)(2)]: 

Evaluating events that will trigger new conformity 

determinations in addition to those required by 93.104 

[93.105(c)(2)(i)]; and 240-2.8(g)

Consulting on emissions analysis for transportation activities 

which cross borders of MPOs, nonattainment areas or air basins 

[93.105(c)(2)(ii)]. 240-2.8(h)(i)(1-3)

 

2

 This is in addition to the projects required to be included by application of the definition of Aregionally 

significant project@ in 40 CFR 93.101. 
17 

Where the metropolitan planning area does not include the entire 

nonattainment or maintenance area, procedures must specify a 

process involving the MPO and the State DOT for cooperative 

planning and analysis for determining conformity of projects outside 

the metropolitan area and within the nonattainment or maintenance 

area [93.105(c)(3)]. 

240-2.8(h)

Specifies a process to ensure disclosure of plans for regionally 

significant non-FHWA/FTA projects (including projects for which 

alternatives are still being considered) to the MPO on a regular basis, 

and immediate disclosure of any changes to those plans 

[93.105(c)(4)]. 

240-2.8(k)(1)

Provides a process involving the MPO and other federal funds 

recipients for assuming project location and design concept/scope 

where these features not adequately defined for regional emissions 

analysis [93.105(c)(5)]. 

240-2.8(k)(2)

Specifies a process for consulting on design, schedule, and funding of 

research and data collection efforts and regional transportation model 

development by the MPO [93.105(c)(6)]. 

240-2.8(a)

Specifies a process for providing final documents and supporting 

information to each agency (including federal agencies) after 

approval or adoption [93.105(c)(7)]. 240-2.8(0)(1-4)

RESOLVING CONFLICTS [93.105(d)]. 

The process for resolving conflicts must specify that: 

Unresolvable conflicts among state agencies or between state 

agencies and an MPO shall be escalated to the Governor or 

Governor’s designee (designee can not be the State or local air 

agency, State department of transportation, State transportation 

commission or board, or an MPO) [93.105(d)]; 

240-2.9(b)(2)

The State air agency has 14 calendar days (the implementation 

plan should define the procedures for starting the 14-day clock) 

to appeal to the Governor after the State DOT or MPO has 

notified the State air agency head of the resolution of his or her 

comments [93.105(d)]; and 

240-2.9(b)(1)

If the State air agency appeals to the Governor, the final 

conformity determination must have Governor’s concurrence. 

If there is no appeal, the MPO or state DOT may proceed with 

the final conformity determination [93.105(d)]. 

240-2.0(b)(3)

PUBLIC CONSULTATION PROCEDURES. Affected agencies3 making conformity determinations on 

transportation plans, TIPs, and projects shall establish a proactive public involvement process [93.105(e)]. 

This general requirement can be satisfied by referencing the MPO’s procedures,4in addition to specifying 

or referencing the additional items listed below. 

 

3

 Interagency consultation portions of transportation conformity SIPs should define the “affected agencies” 

that are responsible for fulfilling 40 CFR 93.105(e) requirements. 

4

 The specific requirements and criteria for MPO public involvement are set forth at 23 CFR 450.316(a). 

Under these requirements, MPOs are directed to periodically review their public involvement process to assure that 
18

Consultation procedures must set out a public process that, at a minimum: 

Provides for reasonable public access to technical and policy 

information considered by the agency at the beginning of the 

public comment period and prior to taking formal action on a 

transportation plan or TIP conformity determination, consistent 

with 93.105 and 23 CFR 450.316(a) [93.105(e)]; 

240-2.10(a)

Ensures that any charges imposed for public inspection or 

copying are reasonable [49 CFR 7.43, 93.105(e)]; 240-2.10(e)

Provides that agencies must specifically address in writing all 

public comments that plans for regionally significant nonFHWA/FTA projects are not properly reflected in the emissions 

analysis [93.105(e)]; and 

240-2.10(b)

Provides opportunity for public involvement in project 

conformity determinations as otherwise required by law 

[93.105(e)]. 240-2.10(d)

OTHER CONFORMITY PROCEDURES: Under Clean Air Act, as amended by SAFETEA-LU, conformity 

SIPs must also include conformity procedures that address 40 CFR 93.122(a)(4)(ii) and 93.125(c). All 

other federal conformity regulations apply automatically and states are not required to address them in 

conformity SIPs. 

ENFORCEABLE WRITTEN COMMITMENTS REQUIRED FOR EMISSIONS REDUCTION CREDIT: Emissions 

reduction credit from any control measures that are not included in the transportation plan and TIP and 

that do not require a regulatory action in order to be implemented may not be included in the emissions 

analysis unless the conformity determination includes written commitments to implementation from the 

appropriate entities [93.122(a)(4)(ii)]. 

Language addressing 93.122(a)(4)(ii) should include, at a minimum, the following: 

In accordance with 40 CFR 93.122(a)(4)(ii), prior to making a 

conformity determination on the Transportation Plan or TIP, [insert 

MPO name] will not include emissions reduction credits from any 

control measures that are not included in the Transportation Plan or 

TIP and that do not require a regulatory action in the regional 

emissions analysis used in the conformity analysis unless [insert 

MPO name] or FHWA/FTA obtains written commitments, as defined 

in 40 CFR 93.101, from the appropriate entities to implement those 

control measures. The written commitments to implement those 

control measures must be fulfilled by the appropriate entities 

[93.122(a)(4)(ii)]. 

240-3.1

ENFORCEABILITY OF DESIGN CONCEPT AND SCOPE AND PROJECT-LEVEL MITIGATION AND CONTROL 

MEASURES: Before a conformity determination is made, written commitments must be obtained for any 

project-level mitigation or control measures. [93.125(c)] 

Language addressing 93.125(c) should include, at a minimum, the following: 

 

full and open access is provided to MPO decision-making processes (see 23 CFR 450.316(a)(1)(x)). Public 

involvement provisions are reviewed in the context of certification or planning reviews, which are conducted by 

FHWA and FTA under 23 CFR 450.334(b) no less often than once every four years for certain MPOs. 
19 

In accordance with 40 CFR 93.125(c), prior to making a project-level 

conformity determination for a transportation project, FHWA/FTA 

must obtain from the project sponsor and/or operator written 

commitments, as defined in 40 CFR 93.101, to implement any 

project-level mitigation or control measures in the construction or 

operation of the project identified as conditions for NEPA process 

completion. The written commitments to implement those 

projectlevel mitigation or control measures must be fulfilled by the

appropriate entities. Prior to making a conformity determination on 

the Transportation Plan or TIP, [insert MPO name] will ensure any 

project-level mitigation or control measures are included in the 

project design concept and scope and are appropriately identified in 

the regional emissions analysis used in the conformity analysis. Prior 

to making a project-level conformity determination, written 

commitments will be obtained before such mitigation or control 

measures are used in a project-level hot-spot conformity analysis. 

240-3.2