# Transportation Conformity Regulations

Updated March 2010EPA-420-B-10-006

March 2010 Transportation and Regional Programs Division Office of Transportation and Air Quality U.S. Environmental Protection Agency 

# Transportation Conformity Regulations

Updated March 2010

Notes: This document includes the current transportation conformity rule that reflects all transportation conformity rulemakings promulgated by EPA as of March 2010, including the PM Amendments final rulemaking (75 FR 14260).

EPA intends to update this reference document upon publication of any final transportation conformity rules.

This document is for informational purposes only, and you should not use the page numbers of this document for citation purposes. This document does not supersede existing conformity regulations that currently apply for conformity

determinations.

.§51.390(a) – (c)

TITLE 40--PROTECTION OF
ENVIRONMENT

CHAPTER I--ENVIRONMENTAL
PROTECTION AGENCY

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS

Subpart T--Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved U nder Title 23 U.S.C.

or the Federal Transit Laws

§51.390 Implementation plan revision.

(a) Purpose and appli cability. The federal conformity rules under part 93, subpart A, of this chapter, in addition to any existing applicable state requirements, establish the conformity criteria and procedures necessary to meet the requirements of Clean Air Act section 176(c) until such time as EPA approves the conformity implementation plan revision required by this subpart. A state with an area subject to this subpart and part 93, subpart A, of this chapter must submit to EPA a revision to its implementation plan which

contains criteria a nd procedures for DOT, MPOs and other state or local agencies to assess the conformity of transportation plans, programs, and projects, consistent with this subpart and part 93, subpart A, of this chapter. The federal conformity regulations contained in part 93, subpart A, of this chapter would continue to apply for the portion of the requirements that the state did not include in its conformity implementation plan and the portion, if any, of the state's conformity provisions that is not approved by EPA. In addition, any previously applicable implementation plan conformity requirements

remain enforceable until the state submits a revision to its applicable implementation plan to specifically remove them and that revision is approved by EPA.

(b) Conformity implementation plan content. To satisfy the requirements of Clean Air Act section 176(c)(4)(E), the implementation plan revision required by this section must include the following three requirements of part 93, subpart A, of this chapter: §§93.105, 93.122(a)(4)(ii), and 93.125(c). A state may elect to include any ot her provisions of part 93, subpart A. If the provisions of the following sections of part 93, subpart A, of this chapter are included, such provisions must be included in verbatim form, except insofar as needed to clarify or to give effect to a stated

intent in the revision to establish criteria and procedures more stringent than the requirements stated in this chapter: §§93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and 93.127. A state's conformity provisions may contain criteria and procedures more stringent than the requirements described in this subpart and part 93, subpart A, of this chapter only if the state'sconformity provisions apply equally to nonfederal as well as federal entities.

(c) Timing and approval. A state must submit this revision to EPA by November 25, 1994 or within 12 months of an area's redesignation from attainment to nonattainment, if the state has not previously submitted such a revision. The state must also revise its conformity implementation plan within 12 months of the date of publication of any final amendments to §§93.105, 93.122(a)(4)(ii), and 93.125(c), as appropriate. Any other portions of part 93, subpart A, of this chapter that the state has included in its conformity implementation plan and EPA has approved must be revised in the state’s implementation plan and submitted

to EPA within 12 months of the date of

1§51.390(c) ● §93 Table of Contents

publication of any final amendments to such sections. EPA will provide DOT with a 30

- day comment period before taking action to approve or disapprove the submission. In order for EPA to approve the implementation plan revision submitted to EPA under this subpart, the plan revision must address and give full legal effect to the following three requirements of part 93, subpart A: §§93.105, 93.122(a)(4)(ii), and 93.125(c). Any other provisions that are incorporated into the conformity implementation plan must also be done in a manner that gives them full legal effect. Following EPA approval of the state conformity provisions (or a portion thereof) in a revision to the state’s conformity implementation plan, conformity determinations will be governed by the approved (or approved portion of the) state criteria and procedures as well as any applicable portions of the federal conformity

rules that are not a ddressed by the approved conformity SIP.

PART 93 – DETERMINING
CONFORMITY OF FEDERAL ACTIONS
TO STATE OR FEDERAL
IMPLEMENTATION PLANS

Subpart A—Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved U nder Title 23 U.S.C.

or the Federal Transit Laws

§93.100 Purpose. §93.101 Definitions. §93.102 Applicability. §93.103 Priority. §93.104 Frequency of conformity

determinations. §93.105 Consultation. §93.106 Content of transportation plans and timeframe of conformity determinations.

. §93.107 Relationship of transportation plan and TIP conformity with the NEPA

process. §93.108 Fiscal constraints for transportation plans and TIPs. §93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General. §93.110 Criteria and procedures: Latest planning assumptions. §93.111 Criteria and procedures: Latest

emissions model. §93.112 Criteria and procedures:

Consultation. §93.113 Criteria and procedures: Timely implementation of TCMs. §93.114 Criteria and procedures: Currently conforming transportation plan and TIP. §93.115 Criteria and procedures: Projects from a transportation plan and TIP. §93.116 Criteria and procedures: Localized CO, PM 10 , and PM 2.5 violations (hotspots). §93.117 Criteria and procedures: Compliance

with PM 10 and PM 2.5 control measures. §93.118 Criteria and procedures: Motor vehicle emissions budget. §93.119 Criteria and procedures: Interim

emissions in areas without motor vehicle emissions budgets. §93.120 Consequences of control strategy implementation plan failures. §93.121 Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or

the Federal Transit Laws. §93.122 Procedures for determining regional transportation-related emissions. §93.123 Procedures for determining localized CO, PM 10 , and PM 2.5 concentrations (hotspot analysis). §93.124 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission)

2§93 Table of Contents ● §93.101

§93.125 Enforceability of design concept and scope and project-level mitigation and

control measures. §93.126 Exempt projects. §93.127 Projects exempt from regional emissions analyses. §93.128 Traffic signal synchronization projects. §93.129 Special exemptions from conformity requirements for pilot program areas.

§ 93.100 Purpose. The purpose of this subpart is to implement section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq. ), and the related requirements of 23 U.S.C. 109(j), with respect to the conform ity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipien ts of funds under title 23 U.S.C. or the Federal Transit Laws (49

U.S.C. Chapter 53). This subpart sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to an applicable implementation plan developed pursuant to

section 110 and Part D of the CAA.

§ 93.101 Definitions. Terms used but not defined in this subpart shall have the meaning given them by the CAA, titles 23 and 49 U.S.C., other Environmental Protection Agency (EPA) regulations, or other DOT regulations, in that order of priority.

Applicable implementation plan is defined in section 302(q) of the CAA and means the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110, or promulgated under section 110(c), or promulgated or approved pursuant to regulations promulgated under section 301(d) and which implements the relevant requirements of the CAA.

CAA means the Clean Air Act, as amended (42 U.S.C. 7401 et seq. ).

Cause or contribute to a new violation for a project means: (1) To cause or contribute to a new violation of a standard in the area substantially affected by the project or over a region which would

otherwise not be in violation of the standard during the future peri od in question, if the project were not implemented; or (2) To contribute to a new violation in a manner that would increase the frequency or severity of a new violation of a standard in

such area.

Clean data means air quality monitoring data determined by EPA to meet the requirements of 40 CFR part 58 that indicate attainment of the national ambient air quality standard.

Control strategy implementation plan revision is the implementation plan which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (including implementation plan revisions submitted to satisfy CAA sections 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); sections 192(a) and 192(b), for nitrogen dioxide; and any other applicable CAA provision requiring a demonstration of reasonable further progress or attainment).

Design concept means the type of facility identified by the project, e.g., freeway, expressway, arterial hi ghway, grade-separated highway, reserved right-of-way rail transit, mixed-traffic rail transit, exclusive busway,

etc.

3§93.101

Design scope means the design aspects which will affect the proposed facility's impact on regional emissions, usuall y as they relate to vehicle or person ca rrying capacity and control, e.g., number of lanes or tracks to be constructed or added, length of project, signalization, access control including approximate number and location ofinterchanges, preferential treatment for highoccupancy vehicles, etc.

DOT means the United States Department of Transportation.

Donut areas are geographic areas outside a metropolitan planning area boundary, but inside the boundary of a nonattainment or maintenance area that contains any part of a metropolitan area(s). These areas are not

isolated rural nonattainment and maintenance

areas.

EPA means the Environmental Protection Agency.

FHWA means the Federal Highway

Administration of DOT.

FHWA/FTA project, for the purpose of this subpart, is any highway or transit project which is proposed to receive fundingassistance and approval through the FederalAid Highway program or the Federal mass transit program, or requires Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable design standards on the interstate
system.

Forecast period with respect to a transportation plan is the period covered by the transportation plan pursuant to 23 CFR part 450. FTA means the Federal Transit Administration

of DOT.

Highway project is an undertaking to implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implemen tation. For analytical purposes, it must be de fined sufficiently to: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope; (2) Have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and (3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

Horizon year is a year for which the transportation plan de scribes the envisioned transportation system according to §93.106.

Hot-spot analysis is an estimation of likely future localized CO, PM 10 , and/or PM 2.5 pollutant concentrations and a comparison of

those concentrations to the national ambient air quality standards. Hot-spot analysis assesses impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway

intersections and hi ghways or transit terminals, and uses an air quality dispersion

model to determine the effects of emissions on air quality.

Increase the frequency or severity means to cause a location or region to exceed a standard

more often or to cause a violation at a greater concentration than prev iously existed and/or would otherwise exist during the future period in question, if the project were not implemented.

4§93.101

Isolated rural nonattainment and maintenance

areas are areas that do not contain or are not part of any metropolitan planning area as designated under the tr ansportation planning regulations. Isolated ru ral areas do not have Federally required metr opolitan transportation plans or TIPs and do not have projects that are part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. Projects in such areas are instead included in statewide transportation improvement programs. These areas are not donut areas.

Lapse means that the conformity determination for a transportation plan or TIP has expired, and thus there is no currently conforming transportation plan and TIP. Limited maintenance plan is a maintenance plan that EPA has determined meets EPA's limited maintenance plan policy criteria for a given NAAQS and pollutant. To qualify for a limited maintenance plan, for example, an area must have a design value that is significantly below a given NAAQS, and it must be reasonable to expect that a NAAQS violation will not result from any level of future motor vehicle emissions growth.

Maintenance area means any geographic region of the United States previously designated nonattainme nt pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A of the CAA, as amended.

Maintenance plan means an implementation plan under section 175A of the CAA, as

amended.

Metropolitan planning organization (MPO) means the policy board of an organization

created as a result of the designation process in 23 U.S.C. 134(d). Milestone has the meaning given in CAA sections 182(g)(1) and 1 89(c) for serious and

above ozone nonattainment areas and PM 10 nonattainment areas, respectively. For all other nonattainment areas, a milestone

consists of an emissions level and the date on

which that level is to be achieved as required by the applicable CAA provision for reasonable further progress towards

attainment.

Motor vehicle emissions budget is that portion

of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.

National ambient air quality standards (NAAQS) are those standards established pursuant to section 109 of the CAA. (1) 1-hour ozone NAAQS means the 1-hour ozone national ambient air quality standard

codified at 40 CFR 50.9. (2) 8-hour ozone NAAQS means the 8-hour ozone national ambient air quality standard

codified at 40 CFR 50.10. (3) 24-hour PM 10 NAAQS means the 24

- hour PM 10 national ambient air quality

standard codified at 40 CFR 50.6. (4) 1997 PM 2.5 NAAQS means the PM 2.5 national ambient air quality standard codified

at 40 CFR 50.7. (5) 2006 PM 2.5 NAAQS means the 24-hour

PM 2.5 national ambient air quality standard

codified at 40 CFR 50.13. (6) Annual PM 10 NAAQS means the annual

PM 10 national ambient air quality standard that EPA revoked on December 18, 2006.

5§93.101

NEPA means the National Environmental Policy Act of 1969, as amended (42 U.S.C.

4321 et seq. ).

NEPA process completion, for the purposes of this subpart, with respect to FHWA or FTA, means the point at which there is a specific action to make a determination that a project is categorically excluded, to make a Finding of No Significant Impact, or to issue a record of decision on a Final Environmental Impact

Statement under NEPA.

Nonattainment area means any geographic region of the United States which has been designated as nonattainment under section 107 of the CAA for any pollutant for which a national ambient air quality standard exists. Project means a highway project or transit project.

Protective finding means a determination by EPA that a submitted control strategy implementation plan revision contains adopted

control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements

relevant to the statut ory provision for which the implementation plan revision was submitted, such as reasonable further progress

or attainment.

Recipient of funds de signated under title 23

U.S.C. or the Federal Transit Laws means any agency at any level of State, county, city, or regional government that routinely receives

title 23 U.S.C. or Federal Transit Laws funds

to construct FHWA/FTA projects, operate FHWA/FTA projects or equipment, purchase equipment, or undertake other services or operations via contracts or agreements. This definition does not include private landowners or developers, or contra ctors or entities that are only paid for services or products created by their own employees. Regionally signifi cant project means a transportation project (o ther than an exempt project) that is on a facility which serves regional transportation needs (such as access to and from the area outside of the region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., or transportation

terminals as well as most terminals themselves) and would normally be included in the modeling of a metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.

Safety margin means the amount by which the total projected emissions from all sources of a given pollutant are less than the total

emissions that would sa tisfy the applicable requirement for reasonable further progress, attainment, or maintenance.

Standard means a national ambient air quality

standard.

Transit is mass transportation by bus, rail, or other conveyance which provides general or special service to the public on a regular and continuing basis. It does not include school buses or charter or sightseeing services.

Transit project is an undertaking to implement or modify a transit faci lity or transit-related program; purchase transit vehicles or equipment; or provide financial assistance for transit operations. It doe s not include actions that are solely within the jurisdiction of local transit agencies, such as changes in routes, schedules, or fares. It may consist of several phases. For analytical purposes, it must be defined inclusively enough to: (1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;

6§93.101 ● §93.102(b)

(2) Have independent utility or independent significance, i.e., be a reasonable expenditure even if no additional transportation improvements in the area are made; and (3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.

Transportation control measure (TCM) is any measure that is specifically identified and committed to in the applicable implementation plan, including a substitute or additional TCM that is incorporated into the applicable SIP through the process established in CAA section 176(c)(8), that is either one of the types listed in CAA section 108, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion

conditions. Notwithstandi ng the first sentence of this definition, vehicle technology-based, fuel-based, and maintenance-based measures

which control the emissions from vehicles

under fixed traffic conditions are not TCMs for the purposes of this subpart.

Transportation improvement program (TIP) means a transportation improvement program developed by a metropolitan planning organization under 23 U.S.C. 134(j).

Transportation plan means the official intermodal metropolitan transportation plan that is developed th rough the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 CFR part 450.

Transportation project is a highway project or a transit project.

Written commitment for the purposes of this subpart means a written commitment that includes a description of the action to be taken; a schedule for the completion of the action; a demonstration that funding necessary to implement the action has been authorized by the appropriating or authorizing body; and an acknowledgment that the commitment is an enforceable obligation under the applicable implementation plan.

§ 93.102 Applicability. (a) Action applicability. (1) Except as provided for in paragraph (c) of this section or §93.126, conformity determinations are required for: (i) The adoption, accep tance, approval or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT; (ii) The adoption, acceptance, approval or support of TIPs and TIP amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT; and (iii) The approval, funding, or implementation of FHWA/FTA projects. (2) Conformity dete rminations are not required under this subpart for individual projects which are no t FHWA/FTA projects. However, §93.121 applies to such projects if they are regionally significant.

(b) Geographic applicability. The provisions of this subpart shall apply in all

nonattainment and maintenance areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan. (1) The provisions of this subpart apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide (CO), nitrogen dioxide (NO 2 ), particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM 10 ); and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM 2.5 ). (2) The provisions of this subpart also apply with respect to emissions of the following precursor pollutants:

7§93.102(b) – (d)

(i) Volatile organic compounds (VOC) and nitrogen oxides (NO X ) in ozone areas; (ii) NO X in NO 2 areas; (iii) VOC and/or NO X in PM 10 areas if the EPA Regional Administrato r or the director of the State air agency has made a finding that transportation-related em issions of one or both of these precursors within the nonattainment area are a significant contributor to the PM 10 nonattainment problem a nd has so notified the MPO and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; (iv) NO X in PM 2.5 areas, unless both the EPA Regional Administra tor and the director of the state air agency have made a finding that transportation-related emissions of NO X within the nonattainment area are not a significant contri butor to the PM 2.5 nonattainment problem a nd has so notified the MPO and DOT, or the applicable implementation plan (or implementation plan submission) does not establish an approved (or adequate) budget for such emissions as part of the reasonabl e further progress, attainment or maintenance strategy; and (v) VOC, sulfur dioxide (SO 2 ) and/or ammonia (NH3) in PM 2.5 areas either if the EPA Regional Administrato r or the director of the state air agency has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM 2.5 nonattainment problem a nd has so notified the MPO and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy. (3) The provisions of this subpart apply to

PM 2.5 nonattainment and maintenance areas with respect to PM 2.5 from re-entrained road dust if the EPA Regional Administrator or the

director of the State air agency has made a finding that re-entrained road dust emissions within the area are a sign ificant contributor to

the PM 2.5 nonattainment problem and has so

notified the MPO and DOT, or if the applicable implementation plan (orimplementation plan submission) includes reentrained road dust in the approved (or adequate) budget as part of the reasonable further progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by travel on paved and unpaved roads (including emissions from anti-skid and deicing materials). (4) The provisions of this subpart apply to maintenance areas through the last year of a maintenance area’s approved CAA section 175A(b) maintenance plan, unless the applicable implementation plan specifies that the provisions of this subpart shall apply for more than 20 years.

(c) Limitations. In order to receive any FHWA/FTA approval or funding actions, including NEPA approvals, for a project phase subject to this subpart , a currently conforming transportation plan and TIP must be in place at the time of project approval as described in §93.114, except as provided by §93.114(b).

(d) Grace period for new nonattainment

areas. For areas or portions of areas which have been continuously designated attainment or not designated for any NAAQS for ozone, CO, PM 10 , PM 2.5 or NO 2 since 1990 and are subsequently redesignated to nonattainment or designated nonattainment for any NAAQS for any of these pollutants, the provisions of this subpart shall not apply with respect to that NAAQS for 12 months following the effective date of final designati on to nonattainment for each NAAQS for such pollutant.

8§93.103 ● §93.104(d)

§ 93.103 Priority. When assisting or approving any action with air quality-related c onsequences, FHWA and FTA shall give priority to the implementation of those transportati on portions of an applicable implementation plan prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements

for allocation of funds among States or other jurisdictions.

§ 93.104 Frequency of conformity

determinations. (a) Conformity determinations and conformity redeterminat ions for transportation plans, TIPs, and FHWA/FTA projects must be made according to the requirements of this section and the applicable implementation plan.

(b) Frequency of conformity determinations for transportation plans. (1) Each new transportation plan must be

demonstrated to conform before the transportation plan is approved by the MPO or accepted by DOT. (2) All transportation plan amendments

must be found to conform before the transportation plan amendments are approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in §93.126 or §93.127. The conformity determination must be based on the transportation plan and the amendment

taken as a whole. (3) The MPO and DOT must determine the conformity of the transportation plan (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT's conformity determination without the MPO and DOT determining conformity of the transportation plan, a 12-month grace period will be implemented as described in paragraph (f) of this section. At the end of this 12-month grace period, the existing conformity determination will lapse.

(c) Frequency of conformity determinations for transportation im provement programs. (1) A new TIP must be demonstrated to conform before the TIP is approved by the MPO or accepted by DOT. (2) A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in §93.126 or §93.127. (3) The MPO and DOT must determine the conformity of the TIP (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT's conformity determination without the MPO and DOT determining conformity of the TIP, a 12-month grace period will be implemented as described in paragraph (f) of this se ction. At the end of this 12-month grace period, the existing conformity determination will lapse.

(d) Projects. FHWA/FTA projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWA/FTA project if one of th e following occurs: a significant change in the project's design concept and scope; three years elapse since the most recent major step to advance the project; or initiation of a supplemental environmental document for air quality purposes. Major steps include NEPA process completion; start of final design; acquisiti on of a significant portion of the right-of-way; and, construction (including Federal approval of plans, specifications and estimates).

9§93.104(e) ● §93.105(b)

(e) Triggers for transportation plan and TIP conformity determinations. Conformity of existing transportation plans and TIPs must be redetermined within two years of the following, or after a 12-month grace period (as described in paragra ph (f) of this section) the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and DOT: (1) The effective date of EPA's finding that motor vehicle emissions budgets from an initially submitted control strategy implementation plan or maintenance plan are adequate pursuant to §93.118(e) and can be used for transportation conformity purposes; (2) The effective date of EPA approval of a control strategy implementation plan revision or maintenance plan which establishes or revises a motor vehicle emissions budget if that budget has not ye t been used in a conformity determinatio n prior to approval;

and (3) The effective date of EPA promulgation of an implementation plan which establishes or revises a motor vehicle emissions budget.

(f) Lapse grace period. During the 12

- month grace period referenced in paragraphs (b)(3), (c)(3), and (e) of this section, a project may be found to conform according to the requirements of this part if: (1) the project is included in the currently conforming transportation plan and TIP (or regional emissions analysis); or (2) the project is included in the most recent conforming transportation plan and TIP (or regional emissions analysis).

§ 93.105 Consultation. (a) General. The implementation plan revision required under §51.390 of this chapter shall include procedures for interagency consultation (Federal, State, and local), resolution of conflicts, and public consultation as described in paragraphs (a) through (e) of this sec tion. Public consultation procedures will be developed in accordance with the requirements for public involvement in 23 CFR part 450. (1) The implementation plan revision shall include procedures to be undertaken by MPOs, State departments of transportation, and DOT with State and local air quality agencies and EPA before making conformity determinations, and by State and local air agencies and EPA with MPOs, State departments of transportation, and DOT in developing applicable implementation plans. (2) Before EPA approves the conformity implementation plan revision required by §51.390 of this chapter, 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 the issues described in paragraph (c)(1) of this section, before making conformity determinations.

(b) Interagency consul tation procedures: General factors. (1) States shall provide well-defined consultation procedures in the implementation plan whereby representatives of the MPOs, State and local air qual ity planning agencies, State and local transportation agencies, and other organizations with responsibilities for developing, submitting, or implementing provisions of an implementation plan required by the CAA must consult with each other and with local or regional offices of EPA, FHWA, and FTA on the development of the implementation plan, the transportation plan, the TIP, and associated conformity

determinations. (2) Interagency cons ultation procedures shall include at a minimum the following general factors and the specific processes in paragraph (c) of this section:

10§93.105(b) – (c)

(i) The roles and re sponsibilities assigned to each agency at each stage in the implementation plan development process and the transportation planning process, including technical meetings; (ii) The organizational level of regular consultation; (iii) A process for circulating (or providing ready access to) draft documents and supporting materials for comment before formal adoption or publication; (iv) The frequency of, or process for convening, consultation meetings and responsibilities for establishing meeting agendas; (v) A process for responding to the significant comments of involved agencies;

and (vi) A process for the development of a list of the TCMs which are in the applicable implementation plan.

(c) Interagency consultation procedures: Specific processes. Interagency consultation procedures shall also include the following specific processes: (1) A process involving the MPO, State and local air quality planning agencies, State and local transportation agencies, EPA, and DOT for the following: (i) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses; (ii) Determining which minor arterials and other transportation projects should be considered “regionally significant” for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or hi gher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP; (iii) Evaluating whethe r projects otherwise exempted from meeting the requirements of this subpart (see §§93.126 and 93.127) should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason; (iv) Making a determination, as required by §93.113(c)(1), whether past obstacles to implementation of TCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding for TCMs. This process shall also consid er whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove

TCMs or substitute TCMs or other emission reduction measures; (v) Notification of tr ansportation plan or TIP amendments which merely add or delete exempt projects listed in §93.126 or §93.127;

and (vi) Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by §93.109(n)(2)(iii). (2) A process involving the MPO and State and local air quality planning agencies and transportation agencies for the following: (i) Evaluating events which will trigger new conformity determinations in addition to those triggering events established in §93.104;

and (ii) Consulting on emissions analysis for transportation activities which cross the

borders of MPOs or nonattainment areas or air

basins. (3) Where the metropolitan planning area

does not include the entire nonattainment or maintenance area, a process involving the MPO and the State department of transportation for cooperative planning and analysis for purposes of determining conformity of all projects outside the

11§93.105(c) – (e)

metropolitan area and within the

nonattainment or maintenance area. (4) A process to ensure that plans for construction of regionally significant projects

which are not FHWA/FTA projects (including projects for which alte rnative locations, design concept and scope, or the no-build option are still being considered ), including those by recipients of funds designated under title 23

U.S.C. or the Federal Transit Laws, are disclosed to the MPO on a regular basis, and to ensure that any changes to those plans are immediately disclosed. (5) A process involving the MPO and other recipients of funds designated under title 23

U.S.C. or the Federal Transit Laws for assuming the location and design concept and scope of projects which are disclosed to the MPO as required by paragraph (c)(4) of this section but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of §93.122. (6) A process for consulting on the design, schedule, and funding of research and data

collection efforts and regional transportation model development by the MPO (e.g.,

household/ travel tran sportation surveys). (7) A process for providing final documents (including applicable implementation plans and implementation plan revisions) and s upporting information to each agency after approval or adoption. This process is applicable to all agencies described in paragraph (a)(1) of this section, including Federal agencies.

(d) Resolving conflicts. Conflicts among State agencies or between State agencies and an

MPO shall be escalated to the Governor if they cannot be resolved by the heads of the involved agencies. The State air agency has 14 calendar days 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. The implementation plan revision required by §51.390 of this chapter shall define the procedures for starting the 14-day clock. If the State air agency appeals to the Governor, the final conformity determination

must have the concurren ce of the Governor. If the State air agency does not appeal to the Governor within 14 days, the MPO or State department of transportation may proceed with the final conformity determination. The Governor may delegate hi s or her role in this process, but not to the head or staff of the State or local air agency, State department of transportation, State transportation commission or board, or an MPO.

(e) Public consultation procedures. Affected agencies making conformity

determinations on tr ansportation plans, programs, and projects shall establish a proactive public involvement process which provides opportunity fo r public review and comment by, at a minimum, providing 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 conformity determination for all transportation plans and TIPs, consistent with these requirements and thos e of 23 CFR 450.316(a). Any charges imposed for public inspection and copying should be consistent with the fee

schedule contained in 49 CFR 7.43. In addition, these agencies must specifically address in writing all public comments that known plans for a regionally significant project which is not receiving FHWA or FTA funding or approval have not been properly reflected in the emissions analysis supporting a proposed conformity finding for a transportation plan or TIP. These agencies shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.

12§93.106(a) – (b)

§ 93.106 Content of transportation plans and timeframe of conformity

determinations. (a) Transportation plans adopted after January 1, 1997 in serious, severe, or extreme
ozone nonattainment areas and in serious CO

nonattainment areas. If the metropolitan planning area contains an urbanized area population greater than 200,000, the transportation plan must specifically describe the transportation system envisioned for certain future years which shall be called horizon years. (1) The agency or organization developing the transportation plan may choose any years to be horizon years, subject to the following

restrictions: (i) Horizon years may be no more than 10
years apart; (ii) The first horizon year may be no more than 10 years from the base year used to validate the transportation demand planning model; (iii) The attainment year must be a horizon year if it is in the timeframe of the transportation plan and conformity determination; (iv) The last year of the transportation plan's forecast period must be a horizon year;

and (v) If the timeframe of the conformity

determination has been shortened under paragraph (d) of this se ction, the last year of the timeframe of the conformity determination must be a horizon year. (2) For these horizon years: (i) The transportation plan shall quantify and document the demographic and employment factors influencing expected transportation demand, including land use forecasts, in accordance with implementation plan provisions and the consultation requirements specified by §93.105; (ii) The highway and transit system shall be described in terms of the regionally significant

additions or modifica tions to the existing transportation network which the transportation plan envisi ons to be operational in the horizon years. Additions and modifications to the highway network shall be sufficiently identified to indicate intersections with existing regionally significant facilities, and to determine their effect on route options between transportation analysis zones. Each added or modified highway segment shall also be sufficiently identified in terms of its design concept and design scope to allow modeling of travel times under various traffic volumes, consistent with the modeling methods for area-wide transportation analysis in use by the MPO. Transit facilities, equipment, and

services envisioned for the future shall be identified in terms of design concept, design scope, and operating policies that are sufficient for modeling of their transit ridership. Additions and modifications to the transportation network shall be described sufficiently to show that there is a reasonable relationship between expected land use and the envisioned transportation system; and (iii) Other future tr ansportation policies, requirements, servi ces, and activities, including intermodal activities, shall be

described.

(b) Two-year grace period for transportation plan requirements in certain ozone and CO

areas. The requirements of paragraph (a) of this section apply to such areas or portions of such areas that have previously not been required to meet these requirements for any existing NAAQS two years from the following: (1) The effective date of EPA's

reclassification of an ozone or CO

nonattainment area that has an urbanized area population greater than 200,000 to serious or above; (2) The official notice by the Census

Bureau that determines the urbanized area population of a serious or above ozone or CO

13§93.106(b) ● §93.107

nonattainment area to be greater than 200,000;

or, (3) The effective date of EPA's action that classifies a newly desi gnated ozone or CO

nonattainment area that has an urbanized area population greater than 200,000 as serious or

above.

(c) Transportation plans for other areas. Transportation plans for other areas must meet the requirements of pa ragraph (a) of this

section at least to the extent it has been the previous practice of the MPO to prepare plans which meet those requirements. Otherwise, the transportation system envisioned for the future must be sufficiently described within the transportation plans so that a conformity determination can be made according to the criteria and procedures of §§93.109 through

93.119.

(d) Timeframe of conformity determination. (1) Unless an election is made under paragraph (d)(2) or (d)(3) of this section, the timeframe of the conformity determination must be through the last year of the transportation plan’s forecast period. (2) For areas that do not have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the transportation plan and TIP conformity determination, after consultation with state and local air quality agencies, solicitation of public comments, and

consideration of such comments. (i) The shortened timeframe of the conformity determination must extend at least to the latest of the following years: (A) The tenth year of the transportation plan; (B) The latest year for which an adequate or approved motor vehicle emissions budget(s) is established in the submitted or applicable implementation plan; or (C) The year after the completion date of a regionally significant project if the project is included in the TIP or the project requires approval before the subsequent conformity

determination. (ii) The conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan and for any year shown to exceed motor vehicle emissions budgets in a prior region al emissions analysis, if such a year extends beyond the timeframe of the conformity determination. (3) For areas that have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the conformity determination to extend through the la st year of such maintenance plan after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such

comments. (4) Any election made by an MPO under paragraphs (d)(2) or (d)(3) of this section shall

continue in effect until the MPO elects otherwise, after consul tation with state and local air quality agenci es, solicitation of public comments, and consideration of such

comments.

(e) Savings. The requirements of this section supplement other requirements of applicable law or re gulation governing the

format or content of transportation plans.

§ 93.107 Relationship of transportation plan and TIP conformity with the NEPA

process. The degree of specificity required in the transportation plan and the specific travel network assumed for air quality modeling do not preclude the consider ation of alternatives in the NEPA process or other project development studies. Should the NEPA process result in a projec t with design concept and scope significantly different from that in the transportation plan or TIP, the project must meet the criteria in §§93.109 through

14§93.107 ● §93.109(c)

93.119 for projects not from a TIP before NEPA process completion.

§ 93.108 Fiscal constraints for transportation plans and TIPs. Transportation plans and TIPs must be fiscally

constrained consistent with DOT's metropolitan planning regulations at 23 CFR part 450 in order to be found in conformity.

§ 93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General. (a) In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and DOT must demonstrate that the applicable criteria and procedures in this subpart are satisfied, and the MPO and DOT must comply with all applicable conformity requirements of implementation plans and of court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs, and FHWA/FTA proj ects), the relevant pollutant(s), and the status of the implementation plan.

(b) Table 1 in this paragraph indicates the criteria and procedures in §§93.110 through

93.119 which apply for transportation plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (k) of this section explain when the budget, interim emissions, and hot-spot tests are required for each pollutant and NAAQS. Paragraph (l) of this section addresses conformity requirements for areas with approved or adequate limited maintenance plans. Paragraph (m) of this

section addresses nonattainment and

maintenance areas which EPA has determined have insignificant motor vehicle emissions. Paragraph (n) of this section addresses

isolated rural nonattainment and maintenance

areas. Table 1 follows: Table 1—Conformity Criteria

All Actions at all times:

§93.110 Latest planning assumptions

§93.111 Latest emissions model

§93.112 Consultation

Transportation Plan:

§93.113(b) TCMs

§93.118 and/or Emissions budget and/or Interim §93.119 emissions

TIP:

§93.113(c) TCMs

§93.118 and/or Emissions budget and/or Interim §93.119 emissions

Project (From a Conforming Plan and TIP):

§93.114 Currently conforming plan and TIP

§93.115 Project from a conforming plan

and TIP

§93.116 CO, PM 10 , and PM 2.5 hot-spots.

§93.117 PM 10 and PM 2.5 control measures

Project (Not From a Conforming Plan and TIP):

§93.113(d) TCMs

§93.114 Currently conforming plan and TIP

§93.116 CO, PM 10 , and PM 2.5 hot-spots.

§93.117 PM 10 and PM 2.5 control measures

§93.118 and/or Emissions budget and/or Interim §93.119 emissions

(c) 1-hour ozone NAAQS nonattainment

and maintenance areas. This paragraph applies when an area is nonattainment or maintenance for the 1-hour ozone NAAQS (
i.e., until the effective date of any revocation of the 1-hour ozone NAAQS for an area). In

addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such ozone

nonattainment and maintenance areas conformity determinations must include a

demonstration that the budget and/or interim

15§93.109(c)

emissions tests are satisfied as described in the following: (1) In all 1-hour oz one nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for the 1

- hour ozone NAAQS is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (2) In ozone nonattainment areas that are required to submit a control strategy implementation plan revision for the 1-hour ozone NAAQS (usually moderate and above areas), the interim emissions tests must be satisfied as required by §93.119 for conformity determinations made when there is no approved motor vehicle emissions budget from an applicable implementation plan for the 1-hour ozone NAAQS and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan for the 1

- hour ozone NAAQS. (3) An ozone nonattainment area must satisfy the interim emissions test for NO X , as required by §93.119, if the implementation plan or plan submission that is applicable for the purposes of conformity determinations is a 15% plan or Phase I attainment demonstration

that does not include a motor vehicle emissions budget for NO X . The implementation plan for the 1-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NO X if the implementation plan or plan submission contains an explicit NO X motor vehicle emissions budget that is intended to act as a ceiling on future NO X emissions, and the NO X motor vehicle emissions budget is a net

reduction from NO X emissions levels in 1990. (4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required to submit a control strategy implementation plan revision for the 1-hour ozone NAAQS (usually marginal and below areas) must satisfy one of the following requirements: (i) The interim emissi ons tests required by §93.119; or (ii) The State shall submit to EPA an implementation plan revision for the 1-hour ozone NAAQS that contains motor vehicle emissions budget(s) and a reasonable further progress or attainment demonstration, and the budget test required by §93.118 must be satisfied using the adequate or approved motor vehicle emissions budget(s) (as described in paragraph (c)(1) of this section). (5) Notwithstanding pa ragraphs (c)(1) and (c)(2) of this section, moderate and above ozone nonattainment areas with three years of clean data for the 1-hour ozone NAAQS that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air Act reasonable further progress and attainment demonstration requirements for the 1-hour ozone NAAQS must satisfy one of the following requirements: (i) The interim emissions tests as required by §93.119; (ii) The budget test as required by §93.118, using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 1-hour ozone NAAQS (subject to the timing requirements of paragraph (c)(1) of this section); or (iii) The budget test as required by §93.118, using the motor vehicle emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are es tablished by the EPA

16§93.109(c) – (d)

rulemaking that determines that the area has clean data for the 1-hour ozone NAAQS.

(d) 8-hour ozone NAAQS nonattainment

and maintenance areas without motor vehicle emissions budgets for the 1-hour ozone NAAQS for any portion of the 8-hour

nonattainment area . This paragraph applies to areas that were never designated nonattainment for the 1-hour ozone NAAQS

and areas that were designated nonattainment for the 1-hour ozone NAAQS but that never submitted a control strategy SIP or maintenance plan with approved or adequate motor vehicle emissions budgets. This paragraph applies 1 year after the effective date of EPA's nonattainment designation for the 8-hour ozone NAAQS for an area, according to §93.102(d). In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such 8-hour ozone nonattainment and maintenance areas conformity

determinations must include a demonstration that the budget and/or interim emissions tests are satisfied as described in the following: (1) In such 8-hour ozone nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for the 8

- hour ozone NAAQS is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (2) In ozone nonattainment areas that are required to submit a control strategy implementation plan revision for the 8-hour ozone NAAQS (usually moderate and above and certain Clean Air Act, part D, subpart 1 areas), the interim emissions tests must be satisfied as required by §93.119 for conformity determinations made when there is no approved motor vehicle emissions budget from an applicable implementation plan for the 8-hour ozone NAAQS and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan for the 8

- hour ozone NAAQS. (3) Such an 8-hour ozone nonattainment area must satisfy the interim emissions test for

NO X , as required by §93.119, if the implementation plan or plan submission that is applicable for the purposes of conformity determinations is a 15% plan or other control strategy SIP that addresses reasonable further progress that does not in clude a motor vehicle emissions budget for NO X . The implementation plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NO X if the implementation plan or plan submission contains an explicit NO X motor vehicle emissions budget that is intended to act as a ceiling on future NO X emissions, and the NO X motor vehicle emissions budget is a net

reduction from NO X emissions levels in 2002. (4) Ozone nonattainment areas that have not submitted a maintenance plan and that are not required to submit a control strategy implementation plan revision for the 8-hour ozone NAAQS (usually marginal and certain Clean Air Act, part D, subpart 1 areas) must satisfy one of the following requirements: (i) The interim emissi ons tests required by §93.119; or (ii) The State shall submit to EPA an implementation plan revision for the 8-hour ozone NAAQS that contains motor vehicle emissions budget(s) and a reasonable further progress or attainment demonstration, and the budget test required by §93.118 must be satisfied using the adequate or approved motor

17§93.109(d) – (e)

vehicle emissions budget(s) (as described in paragraph (d)(1) of this section). (5) Notwithstanding pa ragraphs (d)(1) and (d)(2) of this section, ozone nonattainment areas with three years of clean data for the 8

- hour ozone NAAQS that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air

Act reasonable further progress and attainment demonstration requirements for the 8-hour ozone NAAQS must satisfy one of the following requirements: (i) The interim emissions tests as required by §93.119; (ii) The budget test as required by §93.118, using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 8-hour ozone NAAQS (subject to the timing requirements of paragraph (d)(1) of this section); or (iii) The budget test as required by §93.118, using the motor vehicle emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are es tablished by the EPA rulemaking that determines that the area has clean data for the 8-hour ozone NAAQS.

(e) 8-hour ozone NAAQS nonattainment

and maintenance areas with motor vehicle emissions budgets for the 1-hour ozone NAAQS that cover all or a portion of the 8

- hour nonattainment area . This provision applies 1 year after the effective date of EPA's nonattainment designation for the 8-hour ozone NAAQS for an area, according to §93.102(d). In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such

8-hour ozone nonattainment and maintenance areas conformity determinations must include a demonstration that the budget and/or interim

emissions tests are satisfied as described in the following: (1) In such 8-hour ozone nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for the 8

- hour ozone NAAQS is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (2) Prior to paragraph (e)(1) of this section applying, the following test(s) must be

satisfied: (i) If the 8-hour oz one nonattainment area covers the same geographic area as the 1-hour ozone nonattainment or maintenance area(s), the budget test as required by §93.118 using the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission; (ii) If the 8-hour ozone nonattainment area covers a smaller geogra phic area within the 1

- hour ozone nonattainment or maintenance area(s), the budget test as required by §93.118

for either: (A) The 8-hour nonattainment area using corresponding portion(s) of the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission where such portion(s) can reasonably be identified through the interagency consultation process required by §93.105; or (B) The 1-hour nonattainment area using the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission. If additional

emissions reductions are necessary to meet the

18§93.109(e)

budget test for the 8-hour ozone NAAQS in such cases, these emissions reductions must

come from within th e 8-hour nonattainment

area; (iii) If the 8-hour ozone nonattainment area covers a larger geographic area and encompasses the entire 1-hour ozone nonattainment or maintenance area(s): (A) The budget test as required by §93.118 for the portion of the 8-hour ozone nonattainment area covered by the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission; and (B) The interim emissions tests as required by §93.119 for either: the portion of the 8

- hour ozone nonattainment area not covered by the approved or adequate budgets in the 1

- hour ozone implementation plan, the entire 8

- hour ozone nonattainment area, or the entire portion of the 8-hour ozone nonattainment area within an individual state, in the case where separate 1-hour SIP budgets are

established for each state of a multi-state 1

- hour nonattainment or maintenance area; (iv) If the 8-hour ozone nonattainment area partially covers a 1-hour ozone nonattainment or maintenance area(s): (A) The budget test as required by §93.118 for the portion of the 8-hour ozone nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions budgets in the 1-hour ozone applicable implementation plan or implementation plan submission where they can be reasonably identified through the interagency consultation process required by §93.105; and (B) The interim emissions tests as required by §93.119, when applicable, for either: the portion of the 8-hour ozone nonattainment area not covered by the approved or adequate budgets in the 1-hour ozone implementation plan, the entire 8-hour ozone nonattainment area, or the entire por tion of the 8-hour ozone nonattainment area within an individual state, in the case where separate 1-hour SIP budgets

are established for each state in a multi-state

1-hour nonattainment or maintenance area. (3) Such an 8-hour ozone nonattainment area must satisfy the interim emissions test for

NO X , as required by §93.119, if the only implementation plan or plan submission that is applicable for the purposes of conformity determinations is a 15% plan or other control strategy SIP that addresses reasonable further progress that does not in clude a motor vehicle emissions budget for NO X . The implementation plan for the 8-hour ozone NAAQS will be considered to establish a motor vehicle emissions budget for NO X if the implementation plan or plan submission contains an explicit NO X motor vehicle emissions budget that is intended to act as a ceiling on future NO X emissions, and the NO X motor vehicle emissions budget is a net

reduction from NO X emissions levels in 2002. Prior to an adequate or approved NO X motor vehicle emissions budget in the implementation plan submission for the 8

- hour ozone NAAQS, the implementation plan for the 1-hour ozone NAAQS will be

considered to establish a motor vehicle emissions budget for NO X if the implementation plan contains an explicit NO X motor vehicle emissions budget that is intended to act as a ceiling on future NO X emissions, and the NO X motor vehicle emissions budget is a net reduction from NO X emissions levels in 1990. (4) Notwithstanding pa ragraphs (e)(1) and (e)(2) of this section, ozone nonattainment areas with three years of clean data for the 8

- hour ozone NAAQS that have not submitted a maintenance plan and that EPA has determined are not subject to the Clean Air

Act reasonable further progress and attainment demonstration requirements for the 8-hour ozone NAAQS must satisfy one of the following requirements: (i) The budget test and/or interim emissions tests as required by §§93.118 and 93.119 and

19§93.109(e) – (g)

as described in paragraph (e)(2) of this section; (ii) The budget test as required by §93.118, using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the 8-hour ozone NAAQS (subject to the timing requirements of paragraph (e)(1) of this section); or (iii) The budget test as required by §93.118, using the motor vehicle emissions of ozone precursors in the most recent year of clean data as motor vehicle emissions budgets, if such budgets are es tablished by the EPA rulemaking that determines that the area has clean data for the 8-hour ozone NAAQS.

(f) CO nonattainment and maintenance

areas . In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in CO

nonattainment and maintenance areas conformity determinations must include a

demonstration that the hot-spot, budget and/or

interim emissions tests are satisfied as described in the following: (1) FHWA/FTA projects in CO

nonattainment or maintenance areas must satisfy the hot spot te st required by §93.116(a)

at all times. Until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects must also satisfy the hot spot test required by §93.116(b). (2) In CO nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity

determinations made on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or mainte nance plan is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (3) Except as provide d in paragraph (f)(4) of this section, in CO nonattainment areas the

interim emissions tests must be satisfied as required by §93.119 for conformity

determinations made when there is no approved motor vehicle emissions budget from an applicable implementation plan and no adequate motor vehicle emissions budget

from a submitted control strategy implementation plan revision or maintenance plan. (4) CO nonattainment areas that have not submitted a maintenance plan and that are not required to submit an attainment demonstration (e.g., moderate CO areas with a design value of 12.7 ppm or less or not classified CO areas) must satisfy one of the following requirements: (i) The interim emissi ons tests required by §93.119; or (ii) The State shall submit to EPA an implementation plan revision that contains motor vehicle emissions budget(s) and an

attainment demonstratio n, and the budget test required by §93.118 must be satisfied using the adequate or approved motor vehicle emissions budget(s) (as de scribed in paragraph (f)(2) of this section).

(g) PM 10 nonattainment and maintenance

areas. In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in PM 10 nonattainment and maintenance areas conformity determinations must include a

demonstration that the hot-spot, budget and/or

interim emissions tests are satisfied as described in the following: (1) FHWA/FTA projects in PM 10 nonattainment or maintenance areas must satisfy the hot spot test required by §93.116(a).

20§93.109(g) – (i)

(2) In PM 10 nonattainment and maintenance areas where a budget is

submitted for the 24-hour PM 10 NAAQS, the budget test must be satisfied as required by §93.118 for conformity determinations made

on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or mainte nance plan is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (3) Prior to paragraph (g)(2) of this section applying, the budget test must be satisfied as required by §93.118 using the approved or adequate motor vehicle emissions budget

established for the revoked annual PM 10 NAAQS, if such a budget exists. (4) In PM 10 nonattainment areas the interim emissions tests must be satisfied as required by §93.119 for conformity determinations

made: (i) If there is no approved motor vehicle emissions budget from an applicable implementation plan and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan; or (ii) If the submitted implementation plan

revision is a demonstrat ion of impracticability under CAA section 189(a )(1)(B)(ii) and does

not demonstrate attainment.

(h) NO2 nonattainment and maintenance

areas. In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in NO 2 nonattainment and maintenance areas conformity determinations must include a

demonstration that the budget and/or interim emissions tests are satisfied as described in the following: (1) In NO 2 nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity

determinations made on or after: (i) The effective date of EPA's finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or mainte nance plan is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (2) In NO 2 nonattainment areas the interim emissions tests must be satisfied as required by §93.119 for conformity determinations made when there is no approved motor vehicle emissions budget from an applicable implementation plan and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan.

(i) 1997 PM 2.5 nonattainment and

maintenance areas. In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such 1997 PM 2.5 nonattainment and maintenance areas conformity determinations must include a demonstration that the budget

and/or interim emissions tests are satisfied as described in the following: (1) FHWA/FTA projects in such 1997

PM 2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by §93.116(a). (2) In such 1997 PM 2.5 nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA's finding that

21§93.109(i) – (k)

a motor vehicle emissions budget in a submitted control strategy implementation plan revision or mainte nance plan is adequate for transportation conformity purposes; (ii) The publication date of EPA's approval of such a budget in the Federal Register ; or (iii) The effective date of EPA's approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (3) In such 1997 PM 2.5 nonattainment areas

the interim emissions tests must be satisfied as required by §93.119 for conformity determinations made if there is no approved motor vehicle emissions budget from an applicable implementation plan and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan.

(j) 2006 PM 2.5 NAAQS nonattainment and

maintenance areas without 1997 PM 2.5 NAAQS motor vehicle em issions budgets for any portion of the 2006 PM 2.5 NAAQS area.

In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such 2006 PM 2.5 nonattainment and maintenance areas conformity determinations must include a

demonstration that the budget and/or interim

emissions tests are satisfied as described in the following: (1) FHWA/FTA projects in such PM 2.5 nonattainment and maintenance areas must satisfy the appropriate hot-spot test required by §93.116(a). (2) In such PM 2.5 nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA’s finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for the 2006

PM 2.5 NAAQS is adequate for transportation conformity purposes; (ii) The publication da te of EPA’s approval of such a budget in the Federal Register ; or (iii) The effective date of EPA’s approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (3) In such PM 2.5 nonattainment areas the

interim emissions tests must be satisfied as required by §93.119 for conformity determinations made if there is no approved motor vehicle emissions budget from an applicable implementation plan for the 2006

PM 2.5 NAAQS and no adequate motor vehicle emissions budget from a submitted control strategy implementation plan revision or maintenance plan for the 2006 PM 2.5 NAAQS.

(k) 2006 PM 2.5 NAAQS nonattainment and

maintenance areas with motor vehicle emissions budgets for the 1997 PM 2.5 NAAQS that cover all or a portion of the 2006 PM 2.5 nonattainment area

. In addition to the criteria listed in Table 1 in paragraph (b) of this section that are required to be satisfied at all times, in such 2006 PM 2.5 nonattainment and maintenance areas conformity determinations must include a demonstration that the budget

and/or interim emissions tests are satisfied as described in the following: (1) FHWA/FTA projects in such PM 2.5 nonattainment and maintenance areas must satisfy the appropriate hot-spot test required by §93.116(a). (2) In such PM 2.5 nonattainment and maintenance areas the budget test must be satisfied as required by §93.118 for conformity determinations made on or after: (i) The effective date of EPA’s finding that a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan for the 2006

PM 2.5 NAAQS is adequate for transportation conformity purposes; (ii) The publication da te of EPA’s approval of such a budget in the Federal Register ; or

22§93.109(k)

(iii) The effective date of EPA’s approval of such a budget in the Federal Register , if such approval is completed through direct final rulemaking. (3) Prior to paragraph (k)(2) of this section applying, the following test(s) must be

satisfied: (i) If the 2006 PM 2.5 nonattainment area covers the same geographic area as the 1997

PM 2.5 nonattainment or maintenance area(s), the budget test as required by §93.118 using the approved or adequate motor vehicle emissions budgets in the 1997 PM 2.5 applicable implementation plan or implementation plan submission; (ii) If the 2006 PM 2.5 nonattainment area covers a smaller geogr aphic area within the

1997 PM 2.5 nonattainment or maintenance area(s), the budget test as required by §93.118

for either: (A) The 2006 PM 2.5 nonattainment area using corresponding portion(s) of the approved or adequate mo tor vehicle emissions budgets in the 1997 PM 2.5 applicable implementation plan or implementation plan submission where such portion(s) can reasonably be identified through the interagency consultation process required by §93.105; or (B) The 1997 PM 2.5 nonattainment area using the approved or adequate motor vehicle emissions budgets in the 1997 PM 2.5 applicable implementation plan or implementation plan submission. If additional

emissions reductions are necessary to meet the budget test for the 2006 PM 2.5 NAAQS in such cases, these emissions reductions must

come from with in the 2006 PM 2.5 nonattainment area; (iii) If the 2006 PM 2.5 nonattainment area covers a larger geographic area and encompasses the entire 1997 PM 2.5 nonattainment or maintenance area(s): (A) The budget test as required by §93.118 for the portion of the 2006 PM 2.5 nonattainment area covered by the approved or adequate motor vehicle emissions budgets

in the 1997 PM 2.5 applicable implementation plan or implementation plan submission; and the interim emissions tests as required by §93.119 for either: the portion of the 2006

PM 2.5 nonattainment area not covered by the approved or adequate budgets in the 1997

PM 2.5 implementation plan, the entire 2006

PM 2.5 nonattainment area, or the entire portion

of the 2006 PM 2.5 nonattainment area within an individual state, in the case where separate

1997 PM 2.5 SIP budgets are established for

each state of a multi-state 1997 PM 2.5 nonattainment or maintenance area; or (B) The budget test as required by §93.118

for the entire 2006 PM 2.5 nonattainment area using the approved or adequate motor vehicle emissions budgets in the applicable 1997

PM 2.5 implementation plan or implementation plan submission. (iv) If the 2006 PM 2.5 nonattainment area partially covers a 1997 PM 2.5 nonattainment or maintenance area(s): (A) The budget test as required by §93.118 for the portion of the 2006 PM 2.5 nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions budgets in

the 1997 PM 2.5 applicable implementation plan or implementation plan submission where they can be reasonably identified through the interagency consultation process required by §93.105; and (B) The interim emissions tests as required by §93.119, when applicable, for either: the portion of the 2006 PM 2.5 nonattainment area not covered by the approved or adequate budgets in the 1997 PM 2.5 implementation plan, the entire 2006 PM 2.5 nonattainment area, or the entire portion of the 2006 PM 2.5 nonattainment area within an individual state, in the case where separate 1997 PM 2.5 SIP budgets are established for each state in a

multi-state 1997 PM 2.5 nonattainment or

maintenance area.

23§93.109(l) - (n)

(l) Areas with limited maintenance plans. Notwithstanding the other paragraphs of this section, an area is not required to satisfy the regional emissions analysis for §93.118 and/or §93.119 for a given pollutant and NAAQS, if the area has an adequate or approved limited maintenance plan for such pollutant and NAAQS. A limited maintenance plan would

have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur. A conformity determination that meets other applicable criteria in Table 1 of paragraph (b) of this se ction is still required, including the hot-spo t requirements for projects in CO, PM 10 , and PM 2.5 areas.

(m) Areas with insignificant motor vehicle

emissions. Notwithstanding the other paragraphs in this se ction, an area is not required to satisfy a regional emissions analysis for §93.118 and/or §93.119 for a given pollutant/precursor and NAAQS, if EPA finds through the adequacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant contributor to the air quality problem for that pollutant/precursor and NAAQS. The SIP

would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth in that pollutant/precursor for a NAAQS violation to occur. Such a finding would be based on a number of factors, including the percentage of motor

vehicle emissions in the context of the total SIP inventory, the curren t state of air quality as determined by monitoring data for that NAAQS, the absence of SIP motor vehicle control measures, and hi storical trends and future projections of the growth of motor vehicle emissions. A conformity determination that meets other applicable criteria in Table 1 of paragraph (b) of this section is still required, including regional emissions analyses for §93.118 and/or §93.119 for other pollutants/precursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM 10 , and PM 2.5 areas in §93.116 must also be satisfied, unless EPA

determines that the SIP also demonstrates that projects will not create new localized

violations and/or incr ease the severity or number of existing violations of such NAAQS. If EPA subsequently finds that motor vehicle emissions of a given pollutant/precursor are significant, this paragraph would no longer apply for future conformity determinations for that pollutant/precursor and NAAQS.

(n) Isolated rural nonattainment and

maintenance areas. This paragraph applies to any nonattainment or maintenance area (or portion thereof) which does not have a metropolitan transportation plan or TIP and whose projects are not part of the emissions analysis of any MPO's metropolitan transportation plan or TIP. This paragraph does not apply to “donut” areas which are outside the metropolitan planning boundary

and inside the nonattainment/maintenance area boundary. (1) FHWA/FTA projects in all isolated

rural nonattainment and maintenance areas must satisfy the requirements of §§93.110, 93.111, 93.112, 93.113(d), 93.116, and

93.117. Until EPA approves the control strategy implementation plan or maintenance plan for a rural CO nonattainment or maintenance area, FHWA/FTA projects must also satisfy the requirements of §93.116(b) (“Localized CO, PM 10 , and PM 2.5 violations (hot spots)”). (2) Isolated rural nonattainment and maintenance areas are subject to the budget

and/or interim emissions tests as described in paragraphs (c) through (m) of this section, with the following modifications: (i) When the requirements of §§93.106(d), 93.116, 93.118, and 93.119 apply to isolated

24§93.109(n) ● §93.110(b)

rural nonattainment and maintenance areas, references to “transportation plan” or “TIP” should be taken to mean those projects in the statewide transportation plan or statewide TIP

which are in the rural nonattainment or maintenance area. When the requirements of §93.106(d) apply to isolated rural nonattainment and maintenance areas,

references to “MPO” should be taken to mean the state department of transportation. (ii) In isolated ru ral nonattainment and maintenance areas that are subject to §93.118, FHWA/FTA projects must be consistent with motor vehicle emissions budget(s) for the years in the timeframe of the attainment demonstration or maintenance plan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWA/FTA projects must satisfy one of the following requirements: (A) §93.118; (B) §93.119 (including regional emissions analysis for NO X in all ozone nonattainment and maintenance areas, notwithstanding §93.119(f)(2)); or (C) As demonstrated by the air quality dispersion model or othe r air quality modeling technique used in the attainment demonstration or maintenance plan, the FHWA/FTA project, in combination with all other regionally signifi cant projects expected

in the area in the timeframe of the statewide transportation plan, must not cause or contribute to any ne w violation of any standard in any areas; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard or any required

interim emission reductions or other milestones in any area. Control measures assumed in the analysis must be enforceable. (iii) The choice of requirements in paragraph (n)(2)(ii) of this section and the methodology used to meet the requirements of paragraph (n)(2)(ii)(C) of this section must be determined through the interagency consultation process required in §93.105(c)(1)(vii) through which the relevant recipients of title 23 U.S.C. or Federal Transit Laws funds, the local air quality agency, the State air quality agency, and the State department of transportation should reach consensus about the option and methodology

selected. EPA and DOT must be consulted through this process as well. In the event of unresolved disputes, conflicts may be

escalated to the Governor consistent with the procedure in §93.105(d), which applies for any State air agency comments on a conformity determination.

§ 93.110 Criteria and procedures: Latest planning assumptions. (a) Except as provided in this paragraph, the conformity determin ation, with respect to all other applicable criteria in §§93.111 through 93.119, must be based upon the most recent planning assumptions in force at the time the conformity analysis begins. The conformity determination must satisfy the requirements of paragra phs (b) through (f) of this section using the planning assumptions available at the time the conformity analysis begins as determined through the interagency consultation process required in §93.105(c)(1)(i). The “time the conformity analysis begins” for a transportation plan or TIP determination is the point at which the MPO or other designated agency begins to model the impact of the proposed transportation plan or TIP on travel and/or

emissions. New data that becomes available after an analysis begins is required to be used in the conformity de termination only if a significant delay in the analysis has occurred, as determined through interagency

consultation.

(b) Assumptions must be derived from the estimates of current and future population, employment, travel, and congestion most

25§ §93.110(b) ● §93.112

recently developed by the MPO or other agency authorized to make such estimates and approved by the MPO. The conformity

determination must also be based on the latest assumptions about current and future background concentrations.

(c) The conformity determination for each transportation plan and TIP must discuss how transit operating policies (including fares and service levels) and assumed transit ridership have changed since the previous conformity

determination.

(d) The conformity determination must

include reasonable assu mptions about transit

service and increases in transit fares and road and bridge tolls over time.

(e) The conformity determination must use the latest existing information regarding the

effectiveness of the TCMs and other implementation plan measures which have already been implemented.

(f) Key assumptions sh all be specified and

included in the draft documents and supporting materials used for the interagency and public consultation required by §93.105.

§ 93.111 Criteria and procedures: Latest

emissions model. (a) The conformity determination must be

based on the latest emission estimation model

available. This criterion is satisfied if the most

current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of implementation plans in that State or area is used for the conformity analysis. Where EMFAC is the

motor vehicle emissions model used in preparing or revising the applicable implementation plan, new versions must be approved by EPA before they are used in the conformity analysis. (b) EPA will consult with DOT to establish a grace period following the specification of any new model. (1) The grace period will be no less than

three months and no more than 24 months

after notice of availabil ity is published in the Federal Register

. (2) The length of the grace period will depend on the degree of change in the model and the scope of re-p lanning likely to be necessary by MPOs in order to assure conformity. If the grace period will be longer than three months, EPA will announce the appropriate grace period in the Federal Register

. (c) Transportation plan and TIP conformity analyses for which the emissions analysis was begun during the grace period or before the Federal Register notice of availa bility of the latest emission model may continue to use the previous version of the model. Conformity determinations for projects may also be based on the previous model if the analysis was begun during the grace period or before the Federal Register notice of availa bility, and if

the final environmental document for the project is issued no more than three years after

the issuance of the draft environmental

document.

§ 93.112 Criteria and procedures:
Consultation. Conformity must be determined according to the consultation procedures in this subpart and in the applicable implementation plan, and according to the public involvement procedures established in compliance with 23 CFR part 450. Until the implementation plan revision required by §51.390 of this chapter is fully approved by EPA, the conformity determination must be made according to §93.105 (a)(2) and (e) and the requirements of 23 CFR part 450.

26§93.113 ● §93.114(a)

§ 93.113 Criteria and procedures: Timely implementation of TCMs. (a) The transportati on plan, TIP, or any FHWA/FTA project which is not from a conforming plan and TIP must provide for the timely implementation of TCMs from the applicable implementation plan.

(b) For transportation plans, this criterion is satisfied if the following two conditions are

met: (1) The transportation plan, in describing the envisioned future transportation system, provides for the timely completion or implementation of all TCMs in the applicable implementation plan which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws, consistent with schedules included in the applicable implementation plan. (2) Nothing in the transportation plan interferes with the implementation of any TCM in the applicable implementation plan.

(c) For TIPs, this criterion is satisfied if the following conditions are met: (1) An examination of the specific steps and funding source(s) needed to fully implement each TCM indicates that TCMs which are eligible for funding under title 23

U.S.C. or the Federal Transit Laws are on or

ahead of the schedule established in the applicable implementation plan, or, if such

TCMs are behind the sche dule established in the applicable implementation plan, the MPO and DOT have determined that past obstacles to implementation of the TCMs have been identified and have been or are being overcome, and that all State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding of TCMs over other projects within their control, including projects in locations out side the nonattainment

or maintenance area. (2) If TCMs in the applicable implementation plan have previously been programmed for Federal funding but the funds have not been obligated and the TCMs are behind the schedule in the implementation plan, then the TIP cannot be found to conform

if the funds intended for those TCMs are reallocated to projects in the TIP other than TCMs, or if there ar e no other TCMs in the TIP, if the funds are r eallocated to projects in the TIP other than projects which are eligible for Federal funding intended for air quality improvement projects, e.g., the Congestion Mitigation and Air Quality Improvement Program. (3) Nothing in the TIP may interfere with the implementation of any TCM in the applicable implementation plan.

(d) For FHWA/FTA projects which are not from a conforming transportation plan and TIP, this criterion is satisfied if the project does not interfere with the implementation of any TCM in the applicable implementation plan.

§ 93.114 Criteria and procedures: Currently conforming transportation plan

and TIP. There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval, or a project must meet the requirements in §93.104(f) during the 12-month lapse grace period.

(a) Only one conforming transportation plan or TIP may exist in an area at any time; conformity determinations of a previous transportation plan or TIP expire once the current plan or TIP is found to conform by DOT. The conformity determination on a transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements specified in §93.104.

27§93.114(b) ● §93.116(a)

(b) This criterion is not required to be satisfied at the time of project approval for a TCM specifically included in the applicable implementation plan, provided that all other relevant criteria of this subpart are satisfied.

§ 93.115 Criteria and procedures : Projects from a transportation plan and TIP. (a) The project must come from a conforming plan and program. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of §93.109(b) for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it meets the requirements of paragraph (b) of this section and from a conforming program if it meets the requirements of paragraph (c) of this section. Special provisions for TCMs in an applicable implementation plan are provided in paragraph (d) of this section.

(b) A project is considered to be from a conforming transportation plan if one of the following conditions applies: (1) For projects which are required to be identified in the transportation plan in order to satisfy §93.106 (“Content of transportation plans”), the project is specifically included in the conforming transportation plan and the project's design concept and scope have not changed significantly from those which were

described in the trans portation plan, or in a manner which would significantly impact use of the facility; or (2) For projects which are not required to be specifically identified in the transportation plan, the project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan. (c) A project is considered to be from a conforming program if the following

conditions are met: (1) The project is included in the conforming TIP and the design concept and scope of the project were adequate at the time of the TIP conformity determination to determine its contribution to the TIP's regional emissions, and the project design concept and scope have not changed significantly from those which were described in the TIP; and (2) If the TIP describes a project designconcept and scope which includes projectlevel emissions mitigation or control measures, written commitments to implement

such measures must be obtained from the project sponsor and/or operator as required by §93.125(a) in order for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope of the project.

(d) TCMs. This criterion is not required to be satisfied for TCMs specifically included in an applicable implementation plan.

(e) Notwithstanding the requirements of paragraphs (a), (b), and (c) of this section, a project must meet the requirements of §93.104(f) during the 12-month lapse grace period.

§ 93.116 Criteria and procedures: Localized CO, PM 10 , and PM 2.5 violations (hot-spots). (a) This paragraph applies at all times. The FHWA/FTA project must not cause or contribute to any new localized CO, PM 10 , and/or PM 2.5 violations, increase the frequency or severity of any existing CO,

PM 10 , and/or PM 2.5 violations, or delay timely attainment of any NAAQS or any required

interim emission reductions or other milestones in CO, PM 10 , and PM 2.5

28§93.116(a) ● §93.118(b)

nonattainment and maintenance areas. This criterion is satisfied without a hot-spot analysis in PM 10 and PM 2.5 nonattainment and maintenance areas for FHWA/FTA projects that are not identified in §93.123(b)(1). This

criterion is satisfied for all other FHWA/FTA projects in CO, PM 10 and PM 2.5 nonattainment

and maintenance areas if it is demonstrated that during the time frame of the transportation plan no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project, and the project has been included in a regional em issions analysis that meets applicable §§93.118 and/or 93.119 requirements. The demonstration must be performed according to the consultation requirements of §93.105(c)(1)(i) and the methodology requirements of §93.123.

(b) This paragraph applies for CO

nonattainment areas as described in §93.109(f)(1). Each FHWA/FTA project must eliminate or reduce the severity and number of

localized CO violations in the area substantially affected by the project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO

violations if it is dem onstrated that during the time frame of the transportation plan (or regional emissions analysis) existing localized

CO violations will be el iminated or reduced in severity and number as a result of the project. The demonstration must be performed according to the consultation requirements of §93.105(c)(1)(i) and the methodology requirements of §93.123.

§ 93.117 Criteria and procedures: Compliance with PM 10 and PM 2.5 control

measures. The FHWA/FTA project must comply with any PM 10 and PM 2.5 control measures in the applicable implementati on plan. This criterion is satisfied if the pr oject-level conformity

determination contains a written commitment from the project sponsor to include in the final plans, specifications, and estimates for the project those control measures (for the purpose of limiting PM 10 and PM 2.5 emissions

from the construction activities and/or normal use and operation associat ed with the project) that are contained in the applicable implementation plan.

§ 93.118 Criteria and procedures: Motor vehicle emissions budget. (a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies as described in §93.109(c) through (n). This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors described in paragraph (c) of this section are less than or equal to the motor vehicle emissions budget(s) established in the applicable implementation plan or implementation plan submission.

(b) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes motor vehicle emissions budget(s), for the attainment year (if it is within the timeframe of the transportation plan and conformity determination), for the last year of the timeframe of the conformity determination (as described under §93.106(d)), and for any intermediate years within the timeframe of the conformity determination as necessary so that the years for which consistency is demonstrated are no more than ten years apart,

as follows: (1) Until a maintenance plan is submitted: (i) Emissions in each year (such as milestone years and the attainment year) for which the control strategy implementation plan revision establishes motor vehicle

29§93.118(b) – (d)

emissions budget(s) must be less than or equal to that year's motor vehicle emissions budget(s); and (ii) Emissions in years for which no motor vehicle emissions budget(s) are specifically established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. For example, emissions in years after the attainment year for which the implementation plan does not establish a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year. (2) When a maintenance plan has been

submitted: (i) Emissions must be less than or equal to the motor vehicle emissions budget(s) established for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor vehicle emissions budgets. If the maintenance plan does not establish motor vehicle emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions budget(s) must be accompanied by a qualitative finding that

there are no factors which would cause or

contribute to a new viola tion or exacerbate an existing violation in the years before the last year of the maintenance plan. The interagency consultation process required by §93.105 shall

determine what must be considered in order to make such a finding; (ii) For years after the last year of the maintenance plan, emissions must be less than or equal to the maintenance plan's motor vehicle emissions budget(s) for the last year of the maintenance plan; (iii) If an approved and/or submitted control strategy implementation plan has established motor vehicle emissions budgets for years in the time frame of the transportation plan, emissions in these years must be less than or equal to the control strategy implementation plan's motor vehicle emissions budget(s) for these years; and (iv) For any analysis years before the last year of the maintenance plan, emissions must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year.

(c) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollu tant precursor in §93.102(b) for which the area is in

nonattainment or maintenance and for which the applicable implementation plan (or implementation plan submission) establishes a motor vehicle emissions budget.

(d) Consistency with the motor vehicle emissions budget(s) must be demonstrated by including emissions from the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or maintenance

area in the timeframe of the transportation plan. (1) Consistency with the motor vehicle emissions budget(s) must be demonstrated with a regional emissions analysis that meets the requirements of §§93.122 and 93.105(c)(1)(i). (2) The regional emissions analysis may be performed for any years in the timeframe of the conformity determination (as described under §93.106(d)) provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timeframe of the transportation plan and conformity determination) and the last year of the timeframe of the conformity determination. Emissions in years for which consistency with motor vehicle emissions budgets must be demonstrated, as required in paragraph (b) of this section, may be determined by interpolating between the years

30§93.118(d) – (e)

for which the regional emissions analysis is performed. (3) When the timeframe of the conformity

determination is shortened under §93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the tr ansportation plan, and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis (if such a year extends beyond the timeframe of the conformity determination).

(e) Motor vehicle emissions budgets in submitted control strategy implementation plan revisions and submitted maintenance plans. (1) Consistency with the motor vehicle emissions budgets in submitted control strategy implementation plan revisions or maintenance plans must be demonstrated if

EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformity purposes, and the adequacy finding is effective. However, motor vehicle emissions budgets in submitted implementation plans do not supersede the motor vehicle emissions budgets in approved implementation plans for the same Clean Air Act requirement and the period of years addressed by the previously approved implementation plan, unless EPA specifies otherwise in its approval of a SIP. (2) If EPA has not declared an implementation plan submission's motor vehicle emissions budget(s) adequate for transportation conformity purposes, the budget(s) shall not be used to satisfy the requirements of this section. Consistency with the previously establ ished motor vehicle emissions budget(s) must be demonstrated. If there are no previously approved implementation plans or implementation plan submissions with adequate motor vehicle emissions budgets, the interim emissions tests required by §93.119 must be satisfied. (3) If EPA declares an implementation plan

submission's motor vehicle emissions budget(s) inadequate for transportation conformity purposes after EPA had previously found the budget(s) adequate, and conformity of a transportation plan or TIP has already been determined by DOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy §§93.114 and 93.115, which require a cu rrently conforming transportation plan and TIP to be in place at the time of a project's conformity determination and that projects come from a conforming transportation plan and TIP. (4) EPA will not find a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied: (i) The submitted control strategy implementation plan revision or maintenance plan was endorsed by the Governor (or his or her designee) and was su bject to a State public hearing; (ii) Before the control strategy implementation plan or maintenance plan was submitted to EPA, consultation among federal, State, and local agencies occurred; full implementation plan documentation was provided to EPA; and EP A's stated concerns, if any, were addressed; (iii) The motor vehicle emissions budget(s) is clearly identified and precisely quantified; (iv) The motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission); (v) The motor vehicle emissions budget(s) is consistent with and clearly related to the

31§93.118(e) – (f)

emissions inventory and the control measures in the submitted control strategy implementation plan revision or maintenance plan; and (vi) Revisions to previously submitted control strategy implementation plans or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins (see §93.101 for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled). (5) Before determining the adequacy of a submitted motor vehicle emissions budget, EPA will review the State's compilation of public comments and response to comments that are required to be submitted with any implementation plan. EPA will document its consideration of such comments and responses in a letter to the State indicating the adequacy

of the submitted motor vehicle emissions budget. (6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are established by an implementation plan submittal that has not yet been approved or disapproved by EPA, the MPO and DOT's conformity determinations

will be deemed to be a statement that the MPO and DOT are not aware of any information

that would indicate that emissions consistent with the motor vehicle emissions budget will

cause or contribute to any new violation of any standard; increas e the frequency or severity of any exis ting violation of any standard; or delay timely attainment of any standard or any required interim emission

reductions or other milestones.

(f) Adequacy review process for implementation plan submissions. EPA will use the procedure listed in paragraph (f)(1) or (f)(2) of this section to review the adequacy of an implementation plan submission: (1) When EPA reviews the adequacy of an implementation plan submission prior to EPA's final action on the implementation plan, (i) EPA will notify the public through

EPA's website when EPA receives an implementation plan submission that will be reviewed for adequacy. (ii) The public will have a minimum of 30 days to comment on the adequacy of the implementation plan submission. If the complete implementation plan is not accessible electronically through the internet and a copy is requested within 15 days of the date of the website notice, the comment period will be extended for 30 days from the date that a copy of the implementation plan is mailed. (iii) After the public comment period closes, EPA will inform the State in writing

whether EPA has found the submission adequate or inadequate for use in transportation conform ity, including response to any comments submitted directly and review of comments submitted through the State process, or EPA will include the determination of adequacy or inadequacy in a proposed or final action approving or disapproving the implementation plan under paragraph (f)(2)(iii) of this section. (iv) EPA will publish a Federal Register notice to inform the public of EPA's finding. If EPA finds the submission adequate, the effective date of this finding will be 15 days from the date the notice is published as

established in the Federal Register notice, unless EPA is taking a final approval action on the SIP as described in paragraph (f)(2)(iii)

of this section. (v) EPA will announce whether the implementation plan submission is adequate or inadequate for use in transportation conformity on EPA's website. The website will also include EPA's response to comments if any comments were received during the public comment period. (vi) If after EPA has found a submission adequate, EPA has cause to reconsider this

32§93.118(f) ● §93.119(b)

finding, EPA will repeat actions described in paragraphs (f)(1)(i) th rough (v) or (f)(2) of

this section unless EPA determines that there is no need for additional public comment given the deficiencies of the implementation plan submission. In all cases where EPA reverses its previous fi nding to a finding of inadequacy under paragraph (f)(1) of this section, such a finding will become effective immediately upon the date of EPA's letter to

the State. (vii) If after EPA has found a submission inadequate, EPA has cause to reconsider the adequacy of that budge t, EPA will repeat

actions described in paragraphs (f)(1)(i) through (v) or (f)(2) of this section. (2) When EPA reviews the adequacy of an implementation plan submission simultaneously with EPA's approval or disapproval of the implementation plan, (i) EPA's Federal Register notice of proposed or direct final rulemaking will serve to notify the public that EPA will be reviewing the implementation plan submission for adequacy. (ii) The publicati on of the notice of proposed rulemaking will start a public comment period of at least 30 days. (iii) EPA will indicate whether the implementation plan submission is adequate and thus can be used for conformity either in EPA's final rulemaking or through the process described in paragraphs (f)(1)(iii) through (v)

of this section. If EP A makes an adequacy finding through a final rulemaking that approves the implementation plan submission, such a finding will become effective upon the publication date of EPA's approval in the Federal Register , or upon the effective date of EPA's approval if such action is conducted through direct final rulemaking. EPA will respond to comments received directly and review comments submitted through the State process and include the response to comments in the applicable docket. § 93.119 Criteria and procedures: Interim

emissions in areas without motor vehicle emissions budgets. (a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must satisfy the interim emissions test(s) as described in §93.109(c) through (n). This criteri on applies to the net effect of the action (t ransportation plan, TIP, or project not from a conforming plan and TIP) on motor vehicle emissions from the entire transportation system.

(b) Ozone areas. The requirements of this paragraph apply to all 1-hour ozone and 8

- hour ozone NAAQS areas, except for certain requirements as indicated. This criterion may

be met: (1) In moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA section 182(b)(1) if a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section: (i) The emissions pred icted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and (ii) The emissions predicted in the

“Action” scenario are lower than: (A) 1990 emissions by any nonzero amount, in areas for the 1-hour ozone NAAQS as described in §93.109(c); or (B) 2002 emissions by any nonzero amount, in areas for the 8-hour ozone NAAQS as described in §93.109(d) and (e). (2) In marginal and below ozone

nonattainment areas and other ozone

nonattainment areas that are not subject to the reasonable further progress requirements of CAA section 182(b)(1) if a regional emissions analysis that satisfies the requirements of

33§93.119(b) – (e)

§93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section: (i) The emissions pred icted in the “Action” scenario are not greate r than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or (ii) The emissions predicted in the “Action” scenario are not greater than: (A) 1990 emissions, in areas for the 1-hour ozone NAAQS as described in §93.109(c); or (B) 2002 emissions, in areas for the 8-hour ozone NAAQS as described in §93.109(d) and (e).

(c) CO areas. This criterion may be met: (1) In moderate areas with design value greater than 12.7 ppm and serious CO

nonattainment areas that are subject to CAA section 187(a)(7) if a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section: (i) The emissions pred icted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and (ii) The emissions predicted in the

“Action” scenario are lower than 1990 emissions by any nonzero amount. (2) In moderate areas with design value less than 12.7 ppm and not classified CO nonattainment areas if a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section: (i) The emissions pred icted in the “Action” scenario are not greate r than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or (ii) The emissions predicted in the

“Action” scenario ar e not greater than 1990

emissions.

(d) PM 10 and NO 2 areas. This criterion may be met in PM 10 and NO 2 nonattainment areas if a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section, one of the following requirements is met: (1) The emissions predicted in the “Action” scenario are not greate r than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or (2) The emissions predicted in the “Action” scenario are not grea ter than baseline

emissions. Baseline emissions are those estimated to have occurred during calendar year 1990, unless the conformity implementation plan revision required by §51.390 of this chapter defines the baseline

emissions for a PM 10 area to be those occurring in a different calendar year for which a baseline emissions inventory was developed for the purpose of developing a control strategy implementation plan.

(e) PM 2.5 areas . This criterion may be met

in PM 2.5 nonattainment ar eas if a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section, one of the following requirements is

met: (1) The emissions predicted in the “Action” scenario are not greate r than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the

34§93.119(e) – (g)

periods between the analysis years; or (2) The emissions predicted in the “Action” scenario are not greater than: (A) 2002 emissions, in areas designated

nonattainment for the 1997 PM 2.5 NAAQS; or (B) Emissions in the most recent year for which EPA’s Air Emissions Reporting Requirements (40 CFR Part 51, Subpart A) requires submission of on-road mobile source emissions inventories, as of the effective date of nonattainment designations for any PM 2.5 NAAQS other than the 1997 PM 2.5 NAAQS.

(f) Pollutants. The regional emissions analysis must be performed for the following pollutants: (1) VOC in ozone areas; (2) NO X in ozone areas, unless the EPA

Administrator determines that additional

reductions of NO X would not contribute to attainment; (3) CO in CO areas; (4) PM 10 in PM 10 areas; (5) VOC and/or NO X in PM 10 areas if the EPA Regional Administrato r or the director of the State air agency has made a finding that one or both of such precursor emissions from within the area are a sign ificant contributor to

the PM 10 nonattainment problem and has so notified the MPO and DOT; (6) NO X in NO 2 areas; (7) PM 2.5 in PM 2.5 areas; (8) Reentrained road dust in PM 2.5 areas only if the EPA Regional Administrator or the

director of the State air agency has made a finding that emissions from reentrained road dust within the area are a significant

contributor to the PM 2.5 nonattainment problem and has so notified the MPO and DOT; (9) NO X in PM 2.5 areas, unless the EPA Regional Administrator a nd the director of the State air agency have made a finding that

emissions of NO X from within the area are not a significant contributor to the PM 2.5 nonattainment problem a nd has so notified the MPO and DOT; and (10) VOC, SO 2 and/or ammonia in PM 2.5 areas if the EPA Region al Administrator or the director of the State air agency has made a finding that any of such precursor emissions from within the area are a significant

contributor to the PM 2.5 nonattainment problem and has so notified the MPO and

DOT.

(g) Analysis years. (1) The regional emissions analysis must be performed for analysis years that are no more than ten years apart. The first analysis year must be no more than five years beyond the year in which the conformity determination is being made. The last year of the timeframe of the conformity determination (as described under §93.106(d)) must also be an analysis year. (2) For areas using paragraphs (b)(2)(i), (c)(2)(i), (d)(1), and (e)(1) of this section, a regional emissions analysis that satisfies the requirements of §93.122 and paragraphs (g) through (j) of this section would not be required for analysis years in which the transportation projects and planning assumptions in the “Action” and “Baseline” scenarios are exactly the same. In such a case, paragraph (a) of this section can be satisfied by documenting that the transportation projects and planning assumptions in both scenarios are exactly the same, and consequently, the emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario for such analysis years. (3) When the timeframe of the conformity

determination is shortened under §93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of th e transportation plan.

35§93.119(h) – (i)

(h) “Baseline” scenario. The regional emissions analysis required by paragraphs (b) through (e) of this sec tion must estimate the

emissions that would result from the “Baseline” scenario in each analysis year. The

“Baseline” scenario must be defined for each of the analysis years. The “Baseline” scenario is the future transportation system that will result from current programs, including the following (except that exempt projects listed in §93.126 and projects ex empt from regional emissions analysis as listed in §93.127 need not be explicitly considered): (1) All in-place regionally significant highway and transit faci lities, services and activities; (2) All ongoing travel demand management or transportation system management activities; and (3) Completion of all regionally significant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (except for hardship acquis ition and protective buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed the NEPA

process.

(i) “Action” scenario. The regional emissions analysis required by paragraphs (b) through (e) of this sec tion must estimate the

emissions that would result from the “Action” scenario in each analysis year. The “Action”

scenario must be defined for each of the analysis years. The “Action” scenario is the transportation system that would result from the implementation of the proposed action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) and all other expected re gionally significant projects in the nonattainment area. The “Action” scenario must include the following (except that exempt projects listed in §93.126 and projects exempt fr om regional emissions analysis as listed in §93.127 need not be explicitly considered): (1) All facilities, services, and activities in the “Baseline” scenario; (2) Completion of all TCMs and regionally significant projects (i ncluding facilities, services, and activities) specifically identified in the proposed transportation plan which will be operational or in effect in the analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is already ad opted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; (3) All travel demand management programs and transportation system management activities kn own to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which have been fully adopted and/or funded by the enfo rcing jurisdiction or sponsoring agency since the last conformity determination; (4) The incremental effects of any travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determ ination, but which have been modified since then to be more stringent or effective; (5) Completion of all expected regionally significant highway and transit projects which are not from a conforming transportation plan and TIP; and (6) Completion of all expected regionally significant non-FHWA/FTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year.

36§93.119(j) ● §93.121(a)

(j) Projects not from a conforming transportation plan and TIP. For the regional emissions analysis required by paragraphs (b) through (e) of this sectio n, if the project which is not from a conforming transportation plan and TIP is a modification of a project currently in the plan or TIP, the ‘Baseline’ scenario must include the project with its original design concept and scope, and the ‘Action’ scenario must include the project with its new design concept and scope.

§ 93.120 Consequences of control strategy implementation plan failures. (a) Disapprovals. (1) If EPA disapproves any submitted control strategy implementation plan revision (with or without a protective finding), the conformity status of the transportation plan and TIP shall lapse on the date that highway

sanctions as a result of the disapproval are imposed on the nonattainment area under section 179(b)(1) of the CAA. No new transportation plan, TIP, or project may be

found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submission is

determined. (2) If EPA disapproves a submitted control strategy implementation plan revision without making a protective finding, only projects in the first four years of the currently conforming transportation plan and TIP or that meet the requirements of §93.104(f) during the 12

- month lapse grace period may be found to conform. This means that beginning on the effective date of a disapproval without a protective finding, no transportation plan, TIP, or project not in the fi rst four years of the currently conforming tr ansportation plan and TIP or that meets the requirements of §93.104(f) during the 12-month lapse grace period may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted, EPA finds its motor vehicle emissions budget(s) adequate pursuant to §93.118 or approves the submission, and conformity to the implementation plan

revision is determined. (3) In disapproving a control strategy implementation plan revision, EPA would give a protective finding where a submitted plan contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the implementation plan revision was submitted, such as reasonable further progress or

attainment.

(b) Failure to submit and incompleteness. In areas where EPA notifies the State, MPO,

and DOT of the State's failure to submit a control strategy implementation plan or submission of an incomplete control strategy implementation plan revision (either of which initiates the sanction process under CAA sections 179 or 110(m)), the conformity status of the transportation pl an and TIP shall lapse on the date that highway sanctions are imposed on the nonattainment area for such

failure under section 17 9(b)(1) of the CAA,

unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator.

(c) Federal implementation plans. If EPA promulgates a Federal implementation plan

that contains motor vehicle emissions budget(s) as a result of a State failure, the conformity lapse imposed by this section

because of that State failure is removed.

§ 93.121 Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or

the Federal Transit Laws. (a) Except as provided in paragraph (b) of this section, no recipi ent of Federal funds

37§93.121(a) - (c)

designated under title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following are met: (1) The project comes from the currently conforming transportation plan and TIP (or meets the requirements of §93.104(f) during the 12-month lapse grace period), and the project's design concept and scope have not changed significantly from those that were included in the regional emissions analysis for that transportation plan and TIP; (2) The project is included in the regional emissions analysis for the currently conforming transportation plan and TIP conformity determination (or meets the requirements of §93.104(f) during the 12

- month lapse grace period), even if the project is not strictly included in the transportation plan or TIP for the purpose of MPO project selection or endorsement, and the project's design concept and scope have not changed significantly from those that were included in the regional emissions analysis; or (3) A new regional emissions analysis including the project and the currently conforming transportation plan and TIP

demonstrates that the transportation plan and TIP would still conform if the project were implemented (consistent with the requirements of §§93.118 and/or 93.119 for a project not from a conforming transportation plan and TIP).

(b) In isolated rural nonattainment and maintenance areas subject to §93.109(n), no recipient of Federal funds designated under

title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit pr oject, regardless of funding source, unless the recipient finds that the requirements of one of the following are

met: (1) The project was included in the regional emissions analysis supp orting the most recent conformity determination that reflects the portion of the statewide transportation plan

and statewide TIP which are in the nonattainment or maintenance area, and the project's design concept and scope has not changed significantly; or (2) A new regional emissions analysis including the project an d all other regionally significant projects expected in the

nonattainment or maintenance area demonstrates that those projects in the statewide transportati on plan and statewide

TIP which are in the nonattainment or

maintenance area would still conform if the project were implemented (consistent with the requirements of §§93.118 and/or 93.119 for projects not from a conforming transportation plan and TIP).

(c) Notwithstanding pa ragraphs (a) and (b) of this section, in nonattainment and maintenance areas subject to §93.109(l) or (m) for a given pollutant/precursor and NAAQS, no recipient of Federal funds designated under

title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit pr oject, regardless of funding source, unless the recipient finds that the requirements of one of the following are met for that pollutant/precursor and NAAQS: (1) The project was included in the most recent conformity determination for the transportation plan and TIP and the project's design concept and scope has not changed significantly; or (2) The project was included in the most recent conformity determination that reflects the portion of the statewide transportation plan

and statewide TIP which are in the nonattainment or maintenance area, and the project's design concept and scope has not changed significantly.

38§93.122(a)

§ 93.122 Procedures for determining regional transportation-related emissions. (a) General requirements. (1) The regional emissions analysis required by §§93.118 and 93.119 for the transportation plan, TIP, or project not from a conforming plan and TIP must include all regionally significant projects expected in the

nonattainment or maintenance area. The analysis shall include FHWA/FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which are disclosed to the MPO as required by §93.105. Projects which are not regionally significant are not required to be explicitly modeled, but vehicle miles traveled (VMT) from such projects must be estimated in accordance with reasonable professional practice. The effects of TCMs and similar projects that are not regionally significant may

also be estimated in accordance with reasonable professional practice. (2) The emissions analysis may not include for emissions reduction credit any TCMs or other measures in the applicable implementation plan which have been delayed beyond the scheduled date(s) until such time as their implementation has been assured. If the measure has been partially implemented

and it can be demonstrat ed that it is providing quantifiable emission reduction benefits, the emissions analysis may include that emissions

reduction credit. (3) Emissions reduction credit from projects, programs, or activities which require a regulatory action in order to be implemented may not be included in the emissions analysis

unless: (i) The regulatory action is already adopted by the enforcing jurisdiction; (ii) The project, program, or activity is included in the applicable implementation plan; (iii) The control strategy implementation plan submission or maintenance plan

submission that establishes the motor vehicle emissions budget(s) for the purposes of §93.118 contains a written commitment to the project, program, or activity by the agency with authority to implement it; or (iv) EPA has approved an opt-in to a Federally enforced program, EPA has promulgated the program (if the control program is a Federal responsibility, such as vehicle tailpipe standard s), or the Clean Air Act requires the program without need for

individual State act ion and without any discretionary authority for EPA to set its stringency, delay its e ffective date, or not implement the program. (4) Emissions reduction credit from 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. (i) Persons or entities voluntarily committing to control measures must comply with the obligations of such commitments. (ii) The conformity implementation plan revision required in §51.390 of this chapter must provide that written commitments to

control measures that ar e not included in the transportation plan and TIP must be obtained prior to a conformity determination and that

such commitments must be fulfilled. (5) A regional emissions analysis for the purpose of satisfying the requirements of §93.119 must make the same assumptions in

both the “Baseline” and “Action” scenarios regarding control measures that are external to the transportation system itself, such as vehicle tailpipe or evaporative emission standards, limits on gasoline volatility, vehicle inspection and mainte nance programs, and oxygenated or reformulated gasoline or diesel

fuel. (6) The ambient temperatures used for the regional emissions analysis shall be consistent

39§93.122(a) – (b)

with those used to establish the emissions budget in the applicable implementation plan. All other factors, for example the fraction of travel in a hot stabilized engine mode, must be consistent with the applicable implementation plan, unless modified after interagency consultation according to §93.105(c)(1)(i) to incorporate additional or more geographically specific information or represent a logically estimated trend in such factors beyond the period considered in the applicable implementation plan. (7) Reasonable methods shall be used to

estimate nonattainment or maintenance area VMT on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.

(b) Regional emissions analysis in serious, severe, and extreme ozone nonattainment

areas and serious CO nonattainment areas must meet the requireme nts of paragraphs (b) (1) through (3) of this section if their metropolitan planning area contains an urbanized area population over 200,000. (1) By January 1, 1997, estimates of regional transportation-re lated emissions used to support conformity determinations must be made at a minimum using network-based travel models according to procedures and methods that are available and in practice and supported by current and available documentation. These procedures, methods, and practices are available from DOT and will be updated periodically. Agencies must discuss these modeling procedures and practices through the in teragency consultation process, as required by §93.105(c)(1)(i).

Network-based travel models must at a minimum satisfy the following requirements: (i) Network-based travel models must be validated against observed counts (peak and off-peak, if possible) for a base year that is not more than 10 years prior to the date of the conformity determination. Model forecasts must be analyzed for reasonableness and compared to historical trends and other factors, and the results must be documented; (ii) Land use, population, employment, and other network-based travel model assumptions

must be documented and based on the best available information; (iii) Scenarios of land development and use

must be consistent with the future transportation system alternatives for which emissions are being estimated. The distribution of employme nt and residences for different transportation options must be reasonable; (iv) A capacity-sensitive assignment methodology must be used, and emissions estimates must be based on a methodologywhich differentiates between peak and offpeak link volumes and speeds and uses speeds based on final assigned volumes; (v) Zone-to-zone travel impedances used to distribute trips between origin and destination pairs must be in reasonable agreement with

the travel times that are estimated from final assigned traffic volumes. Where use of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should also be used for modeling mode splits; and (vi) Network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and other fact ors affecting travel

choices. (2) Reasonable methods in accordance with good practice must be used to estimate traffic speeds and delays in a manner that is sensitive

to the estimated volume of travel on eachroadway segment represented in the networkbased travel model. (3) Highway Performance Monitoring System (HPMS) estimates of vehicle miles traveled (VMT) shall be considered the primary measure of VMT within the portion

of the nonattainment or maintenance area and for the functional classes of roadways included in HPMS, for urban areas which are

40§93.122(b) - (f)

sampled on a separate urban area basis. For areas with network-based travel models, a factor (or factors) may be developed to

reconcile and calibrate the network-based

travel model estimates of VMT in the base year of its validation to the HPMS estimates for the same period. These factors may then be applied to model estimates of future VMT. In this factoring process, consideration will be given to differences between HPMS and network-based travel models, such as differences in the facility coverage of the HPMS and the modeled network description. Locally developed count- based programs and other departures from these procedures are permitted subject to the interagency consultation procedures of §93.105(c)(1)(i).

(c) Two-year grace period for regional emissions analysis requirements in certain
ozone and CO areas. The requirements of paragraph (b) of this section apply to such areas or portions of such areas that have not previously been required to meet these requirements for any existing NAAQS two years from the following: (1) The effective date of EPA's

reclassification of an ozone or CO

nonattainment area that has an urbanized area population greater than 200,000 to serious or above; (2) The official notice by the Census

Bureau that determines the urbanized area population of a serious or above ozone or CO

nonattainment area to be greater than 200,000;

or, (3) The effective date of EPA's action that classifies a newly desi gnated ozone or CO

nonattainment area that has an urbanized area population greater than 200,000 as serious or

above.

(d) In all areas not otherwise subject to paragraph (b) of this section, regional emissions analyses must use those procedures described in paragraph (b) of this section if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to paragraph (b ) of this section may estimate regional emissions using any appropriate methods that account for VMT growth by, for example, extrapolating historical VMT or pr ojecting future VMT by considering growth in population and historical growth trends for VMT per person.

These methods must also consider future economic activity, transit alternatives, and transportation system policies.

(e) PM 10 from construction-related fugitive

dust. (1) For areas in which the implementation plan does not identify construction-related fugitive PM 10 as a contributor to the nonattainment problem, the fugitive PM 10 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis. (2) In PM 10 nonattainment and maintenance areas with implementation plans which identify construction-related fugitive

PM 10 as a contributor to the nonattainment problem, the regional PM 10 emissions analysis shall consider construction-related fugitive

PM 10 and shall account for the level of construction activity, the fugitive PM 10 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.

(f) PM 2.5 from construction-related fugitive

dust. (1) For PM 2.5 areas in which the implementation plan does not identify construction-related fugitive PM 2.5 as a significant contributor to the nonattainment problem, the fugitive PM 2.5 emissions associated with highway and transit project construction are not requir ed to be considered in the regional em issions analysis. (2) In PM 2.5 nonattainment and maintenance areas with implementation plans

41§93.122(f) ● §93.123(a)

which identify construction-related fugitive

PM 2.5 as a significant contributor to the nonattainment problem, the regional PM 2.5 emissions analysis sha ll consider constructionrelated fugitive PM 2.5 and shall account for the level of construction activity, the fugitive

PM 2.5 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.

(g) Reliance on previous regional emissions analysis. (1) Conformity determinations for a new transportation plan and/or TIP may be demonstrated to satisfy the requirements of §§93.118 (“Motor vehicle emissions budget”) or 93.119 (“Interim emissions in areas without motor vehicle emissions budgets”) without new regional emissions analysis if the previous regional emissions analysis also applies to the new plan and/or TIP. This requires a demonstration that: (i) The new plan a nd/or TIP contain all projects which must be started in the plan and

TIP's timeframes in order to achieve the highway and transit system envisioned by the transportation plan; (ii) All plan and TIP projects which are regionally significant are included in the transportation plan w ith design concept and scope adequate to determine their contribution to the transportation plan's and/or TIP's regional emissions at the time of the previous conformity determination; (iii) The design concept and scope of each regionally significant proj ect in the new plan and/or TIP are not signi ficantly different from

that described in the previous transportation plan; and (iv) The previous regional emissions analysis is consistent with the requirements of §§93.118 (including that conformity to all currently applicable budgets is demonstrated) and/or 93.119, as applicable. (2) A project which is not from a conforming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of §93.118 or §93.119 without additional region al emissions analysis if allocating funds to th e project will not delay the implementation of projects in the transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the tr ansportation plan, the previous regional emissi ons analysis is still consistent with the requirements of §93.118 (including that conform ity to all currently applicable budgets is demonstrated) and/or §93.119, as applicable, and if the project is

either: (i) Not regionally significant; or (ii) Included in the conforming transportation plan (even if it is not specifically included in the latest conforming TIP) with design concept and scope adequate

to determine its contribution to the transportation plan's regional emissions at the time of the transportation plan's conformity determination, and the design concept and scope of the project is not significantly

different from that described in the transportation plan. (3) A conformity determination that relies on paragraph (g) of this section does not satisfy the frequency requirements of §93.104(b) or (c).

§ 93.123 Procedures for determining localized CO, PM 10 , and PM 2.5 concentrations (hot-spot analysis). (a) CO hot-spot analysis. (1) The demonstrations required by §93.116 (“Localized CO, PM 10 , and PM 2.5 violations”) must be based on quantitative analysis using the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51, Appendix W (Guideline on Air Quality Models). These procedures shall be used in the following cases, unless different procedures developed through the interagency consultation process

42§93.123(a) – (b)

required in §93.105 and approved by the EPA Regional Administrator are used: (i) For projects in or affecting locations, areas, or categories of sites which are identified in the applicable implementation plan as sites of violati on or possible violation; (ii) For projects affecting intersections that are at Level-of-Service D, E, or F, or those that will change to Level-of-Service D, E, or F

because of increased traffic volumes related to the project; (iii) For any project affecting one or more of the top three intersections in the

nonattainment or main tenance area with highest traffic volumes, as identified in the applicable implementation plan; and (iv) For any project affecting one or more of the top three intersections in the

nonattainment or mainte nance area with the worst level of service, as identified in the applicable implementation plan. (2) In cases other than those described in paragraph (a)(1) of this section, the demonstrations required by §93.116 may be

based on either: (i) Quantitative methods that represent reasonable and common pr ofessional practice;

or (ii) A qualitative c onsideration of local factors, if this can provide a clear demonstration that the requirements of §93.116 are met. (3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that §93.116(a) is met without further hot-spot analysis for an y project described in paragraphs (a)(1) and (a)(2) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given

CO nonattainment or maintenance area in categorical hot-spot find ings for applicable FHWA or FTA projects. (b) PM 10 and PM 2.5 hot-spot analyses. (1) The hot-spot demonstration required by §93.116 must be based on quantitative analysis methods for the following types of projects: (i) New highway projects that have a significant number of diesel vehicles, and expanded highway projects that have a significant increase in the number of diesel vehicles; (ii) Projects affecting intersections that are at Level-of-Service D, E, or F with a significant number of dies el vehicles, or those that will change to Level-of-Service D, E, or F

because of increased traffic volumes from a significant number of dies el vehicles related to the project; (iii) New bus and rail terminals and transfer points that have a signif icant number of diesel vehicles congregating at a single location; (iv) Expanded bus and rail terminals and transfer points that significantly increase the

number of diesel vehi cles congregating at a single location; and (v) Projects in or affecting locations, areas, or categories of sites wh ich are identified in

the PM 10 or PM 2.5 applicable implementation plan or implementation plan submission, as appropriate, as sites of violation or possible

violation. (2) Where quantitative analysis methods are not available, the demonstration required by §93.116 for projects described in paragraph (b)(1) of this section must be based on a qualitative consideration of local factors. (3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that §93.116 is met without further hot-spot analysis for an y project described in paragraph (b)(1) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given PM 2.5 or PM 10 nonattainment or maintenance area in categorical hot-spot find ings for applicable FHWA or FTA projects.

43§93.123(b) ● §93.124(b)

(4) The requirements for quantitative analysis contained in th is paragraph (b) will not take effect until EPA releases modeling guidance on this subjec t and announces in the Federal Register that these requirements are

in effect.

(c) General requirements. (1) Estimated pollutant concentrations must

be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations. The total concentration must be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project. (2) Hot-spot analyses must include the entire project, and may be performed only after the major design features which will significantly impact concentrations have been identified. The future background concentration should be estimated by multiplying current background by the ratio of

future to current traffic and the ratio of future

to current emission factors. (3) Hot-spot analysis assumptions must be

consistent with those in the regional emissions analysis for those inpu ts which are required for both analyses. (4) CO, PM 10 , or PM 2.5 mitigation or

control measures shall be assumed in the hotspot analysis only where there are written commitments from the project sponsor and/or operator to implement such measures, as required by §93.125(a). (5) CO, PM 10 , and PM 2.5 hot-spot analysesare not required to consider constructionrelated activities which cause temporary

increases in emissions. Each site which is affected by construction-related activities shall be considered separately, using established “Guideline” methods. Temporary increases are defined as those which occur only during the construction phase a nd last five years or less at any individual site. § 93.124 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission). (a) In interpreting an applicable implementation plan (or implementation plan submission) with respect to its motor vehicle emissions budget(s), the MPO and DOT may

not infer additions to th e budget(s) that are not explicitly intended by the implementation plan (or submission). Unless the implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that

some or all of this additional amount should

be available to the MPO and DOT in the emissions budget for conformity purposes, the MPO may not interpret the budget to be higher than the implementation plan's estimate

of future emissions. This applies in particular to applicable implementation plans (or submissions) which demonstrate that after implementation of control measures in the implementation plan: (1) Emissions from all sources will be less

than the total emissions that would be consistent with a required demonstration of an emissions reduction milestone; (2) Emissions from all sources will result in achieving attainment prior to the attainment

deadline and/or ambient concentrations in the attainment deadline year will be lower than

needed to demonstr ate attainment; or (3) Emissions will be lower than needed to provide for continued maintenance.

(b) A conformity demonstration shall not trade emissions among budgets which the applicable implementation plan (or implementation plan submission) allocates for different pollutants or precursors, or among budgets allocated to motor vehicles and other sources, unless the implementation plan establishes appropriate mechanisms for such

trades.

44§93.124(c) ● §93.126

(c) If the applicable implementation plan (or implementation plan submission) estimates future emissions by geographic subarea of the nonattainment area, the MPO and DOT are not required to consider this to establish subarea budgets, unle ss the applicable implementation plan (or implementation plan submission) explicitly in dicates an intent to create such subarea budgets for the purposes of conformity.

(d) If a nonattainment area includes more than one MPO, the implementation plan may establish motor vehicle emissions budgets for each MPO, or else the MPOs must collectively make a conformity determination

for the entire nonattainment area.

§ 93.125 Enforceability of design concept and scope and project-level mitigation and

control measures. (a) Prior to determining that a transportation project is in conformity, the MPO, other recipient of funds designated

under title 23 U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the project sponsor and/or operator written commitments to implement in the construction of the project and operation of the resulting facility or service any project-level mitigation

or control measures which are identified as conditions for NEPA process completion with respect to local CO, PM 10 , or PM 2.5 impacts. Before a conformity determination is made,

written commitments must also be obtained for project-level mitigation or control measures which are conditions for making conformity determinatio ns for a transportation plan or TIP and are included in the project design concept and scope which is used in the regional emissions analysis required by §§93.118 (“Motor vehicle emissions budget”) and 93.119 (“Interim emissions in areas without motor vehicle emissions budgets”) or used in the project-level hot-spot analysis required by §93.116. (b) Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations must comply with the obligations of such commitments.

(c) The implementation plan revision required in §51.390 of this chapter shall provide that written commitments to mitigation measures must be obtained prior to a positive conformity determination, and that project sponsors must comply with such

commitments.

(d) If the MPO or project sponsor believes the mitigation or control measure is no longer necessary for conformity, the project sponsor or operator may be relieve d of its obligation to implement the mitigation or control measure if it can demonstrate that the applicable hot-spot requirements of §93.116, emission budget requirements of §93.118, and interim emissions requirements of §93.119 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under §93.105. The MPO and DOT

must find that the tran sportation plan and TIP still satisfy the applicable requirements of §§93.118 and/or 93.119 and that the project still satisfies the requirements of §93.116, and

therefore that the conf ormity determinations for the transportation pl an, TIP, and project are still valid. This finding is subject to the applicable public consultation requirements in §93.105(e) for conformity determinations for projects.

§ 93.126 Exempt projects. Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in Table 2 of this section are exempt from the requirement to determine conformity. Such projects may proceed toward implementation even in the absence of a conforming transportation plan and TIP.

45§93.126

A particular action of the type listed in Table 2

of this section is not exempt if the MPO in consultation with other agencies (see §93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potentially adverse emissions impacts for any reason. States and MPOs must ensure that exempt projects do not interfere with TCM implementation. Table 2 follows:

46Table 2—Exempt Projects Safety Railroad/highway crossing. Projects that correct, improve, or elimin ate a hazardous location or feature. Safer non-Federal-aid system roads. Shoulder improvements. Increasing sight distance. Highway Safety Improvement Program implementation. Traffic control devices and operating assi stance other than si gnalization projects. Railroad/highway crossing warning devices. Guardrails, median barriers, crash cushions. Pavement resurfacing and/or rehabilitation. Pavement marking. Emergency relief (23 U.S.C. 125). Fencing.

Skid treatments. Safety roadside rest areas. Adding medians. Truck climbing lanes outside the urbanized area. Lighting improvements. Widening narrow pavements or reconstructi ng bridges (no additional travel lanes). Emergency truck pullovers.

Mass Transit Operating assistance to transit agencies. Purchase of support vehicles.

Rehabilitation of transit vehicles 1

. Purchase of office, shop, and operating equipment for existing facilities. Purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.). Construction or renovation of power, signal, and communications systems. Construction of small passenger shelters and information kiosks. Reconstruction or renovation of transit buildings and struct ures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures).

Rehabilitation or reconstruction of track structures , track, and trackbed in existing rights-of-way. Purchase of new buses and rail cars to replace existin g vehicles or for minor expansions of the fleet 1

. Construction of new bus or rail storage/maintenance f acilities categorically excluded in 23 CFR part 771. Air Quality Continuation of ride-sharing and van-pooling promotion activities at current levels. Bicycle and pedestrian facilities.

Other Specific activities which do not involve or lead directly to construction, such as: Planning and technical studies. Grants for training and research programs. Planning activities conducted pursuant to titles 23 and 49 U.S.C. Federal-aid systems revisions. Engineering to assess social, economic, and environmental eff ects of the proposed action or alternatives to that action.

Noise attenuation. Emergency or hardship advance land acquisitions (23 CFR 710.503). Acquisition of scenic easements. Plantings, landscaping, etc. Sign removal. Directional and informational signs. Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities). Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational or capacity changes.

Note: 1 In PM 10 and PM 2.5 nonattainment or maintenance areas, such projec ts are exempt only if they are in compliance with control measures in the applicable implementation plan.

47§93.127 ● §93.129

§ 93.127 Projects exempt from regional emissions analyses. Notwithstanding the other requirements of this subpart, highway and transit projects of the types

listed in Table 3 of this section are exempt from regional emissions analysis requirements. The local effects of these proj ects with respect to CO

concentrations must be c onsidered to determine if a hot-spot analysis is re quired prior to making a project-level conformity determination. The local effects of projects with respect to PM 10 and PM 2.5 concentrations must be considered and a hot-spotanalysis performed prior to making a projectlevel conformity determin ation, if a project in

Table 3 also meets the criteria in §93.123(b)(1). These projects may then proceed to the project development process even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 3 of this section is not exempt from regional emissions analysis if the MPO in consultation with other agencies (see §93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potential regional impacts for any reason. Table 3 follows:

Table 3—Projects Exempt From Regional Emissions Analyses Intersection channelization projects. Intersection signalization projects at individual

intersections. Interchange reconfiguration projects. Changes in vertical and horizontal alignment. Truck size and weight inspection stations. Bus terminals and transfer points.

§ 93.128 Traffic signal synchronization projects. Traffic signal synchroni zation projects may be approved, funded, and implemented without satisfying the requireme nts of this subpart. However, all subsequent regional emissions analyses required by §§93.118 and 93.119 for transportation plans, TIPs, or projects not from a conforming plan and TIP must include such regionally significant traffic signal synchronization projects. § 93.129 Special exemptions from conformity requirements for pilot program

areas. EPA and DOT may exempt no more than six areas for no more than three years from certain requirements of this subpart if these areas are selected to participate in a conformity pilot program and have developed alternative requirements that have been approved by EPA as an implementation plan revision in accordance with §51.390 of this chapter. For the durati on of the pilot program, areas selected to participate in the pilot program must comply with the conformity requirements of the pilot area's implementation plan revision for §51.390 of this chapter and all other requirements in 40 CFR parts 51 and 93 that are not covered by the pilot area's implementation plan revision for §51.390 of this chapter. The alternative conformity requirements in conjunction with any applicable state and/ or federal conformity requirements must be proposed to fulfill all of the requirements of and achieve results equivalent to or better than section 176(c) of the Clean Air Act. After the three-year duration of the pilot program has expired, areas will again be subject to all of the requirements of this subpart and 40 CFR part 51, subpart T, and/or to the requirements of any implementation plan revision that was previously approved by EPA in accordance with §51.390 of this chapter.

48