STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS 

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 

OFFICE OF AIR RESOURCES 

AIR POLLUTION CONTROL REGULATION NO. 49 

TRANSPORTATION CONFORMITY 

Effective October 20, 2011 

AUTHORITY: These regulations are authorized pursuant to R.I. Gen. Laws §§ 42-17.1-2(s) and 23-

23, as amended, and have been promulgated pursuant to the procedures set forth in the R.I. 

Administrative Procedures Act, R.I. Gen. Laws Chapter 42-35. 
TABLE OF CONTENTS 

49.1 Definitions 1 

49.2 Applicability 6 

49.3 Consultation 8 

49.4 Commitments for Regional Emissions Analysis 14 

49.5 Commitments for Project-Level Mitigation and Control Measures 14 

49.6 Purpose 15 

49.7 Authority 16 

49.8 Application 16 

49.9 Severability 16 

49.10 Effective Date 16 
RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT 

OFFICE OF AIR RESOURCES 

AIR POLLUTION CONTROL REGULATION NO. 49 

TRANSPORTATION CONFORMITY 

49.1 Definitions 

Unless otherwise expressly defined in this section, the terms used in this regulation shall be 

defined by reference to the Rhode Island Air Pollution Control General Definitions 

Regulation. Terms used but not defined in this regulation or the Rhode Island Air Pollution 

Control General Definitions Regulation 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. 

As used in this regulation, the following terms shall, where the context permits, be construed 

as follows: 

49.1.1 "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. 

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

49.1.3 "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). 

49.1.4 "Design concept" means the type of facility identified by the project, e.g., 

freeway, expressway, arterial highway, grade-separated highway, reserved 

right-of-way rail transit, mixed-traffic rail transit, exclusive busway, etc. 

49.1.5 "Design Scope" means the design aspects which will affect the proposed 

facility's impact on regional emissions, usually as they relate to vehicle or 

person carrying capacity and control, e.g., number of lanes or tracks to be 

l 
constructed or added, length of project, signalization, access control 

including approximate number and location of interchanges, preferential 

treatment for high-occupancy vehicles, etc. 

49.1.6 "DOT" means the United States Department of Transportation. 

49.1.7 "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. 

49.1.8 "Exempt projects" are projects of the type listed in 40 CFR 93.126 

"Table 2, Exempt Projects" or 40 CFR 93.127 "Table 3, Projects Exempt 

From Regional Emissions Analyses". 

49.1.9 "FHWA" means the Federal Highway Administration of DOT. 

49.1.10 "FHWA/FTA project", for the purpose of this subpart, is any highway or 

transit project which is proposed to receive funding assistance and 

approval through the Federal-Aid 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. 

49.1.11 "FTA" means the Federal Transit Administration of DOT. 

49.1.12 "Final document or decision" means the document or decision prepared 

after consideration of and responding to comments received, if any, during 

the interagency consultation process and, if applicable, the public 

comment process. 

49.1.13 "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 implementation. For analytical purposes, it 

must be defined sufficiently to: 

(a) Connect logical termini and be of sufficient length to address 

environmental matters on a broad scope; 

(b) 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 

(c) Not restrict consideration of alternatives for other reasonably 

foreseeable transportation improvements. 

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49.1.14 "Hot-spot analysis" is an estimation of likely future localized CO, PMJO, 

and/or PM2.5pollutant 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 highways or transit terminals, and uses an air quality 

dispersion model to determine the effects of emissions on air quality. 

49.1.15 "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 transportation planning regulations. Isolated rural 

areas do not have federally required metropolitan 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. 

49.1.16 "Maintenance area" means any geographic region of the United States 

previously designated nonattainment pursuant to the CAA Amendments of 

1990 and subsequently redesignated to attainment subject to the 

requirement to develop a maintenance plan under section 175 A of the 

CAA, as amended. 

49.1.17 "Maintenance plan" means an implementation plan under section 175A 

of the CAA, as amended. 

49.1.18 "Metropolitan planning organization (MPO)" means the State Planning 

Council and its staff in the Department of Admimstration, Division of 

Planning. 

49.1.19 "Milestone" has the meaning given in CAA sections 182(g)( 1) and 189(c) 

for serious and above ozone nonattainment areas and PMio 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. 

49.1.20 "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. 

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49.1.21 "National ambient air quality standards (NAAQS)" are those standards 

established pursuant to section 109 of the CAA. 

49.1.22 "NEPA" means the National Environmental Policy Act of 1969, as 

amended (42 U.S.C. 4321 etseq.). 

49.1.23 "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. 

49.1.24 "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. 

49.1.25 "Project" means a highway project or transit project. 

49.1.26 "Regionally significant project" means a transportation project (other 

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. 

49.1.27 "RIDOT" means the Rhode Island Department of Transportation 

49.1.28 "RIPTA" means the Rhode Island Public Transit Authority 

49.1.29 "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. 

49.1.30 "Transit project" is an undertaking to implement or modify a transit 

facility or transit-related program; purchase transit vehicles or equipment; 

or provide financial assistance for transit operations. It does not include 

actions that are solely within the jurisdiction of RIPTA, such as changes in 

routes, schedules, or fares. It may consist of several phases. For analytical 

purposes, it must be defined inclusively enough to: 

4 
(a) Connect logical termini and be of sufficient length to address 

environmental matters on a regional scope; 

(b) Have independent utility or independent significance, i.e., be a 

reasonable expenditure even if no additional transportation 

improvements in the area are made; and 

(c) Not restrict consideration of alternatives for other reasonably 

foreseeable transportation improvements. 

49.1.31 "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 implementation plan 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. 

Notwithstanding the first sentence of this definition, vehicle technologybased, 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. 

49.1.32 "Transportation improvement program (TIP)" means a transportation 

improvement program developed by a metropolitan planning organization 

under 23 U.S.C. 134(j). 

49.1.33 "Transportation plan" means the official intermodal metropolitan 

transportation plan that is developed through the metropolitan planning 

process for the metropolitan planning area, developed pursuant to 23 CFR 

450. 

49.1.34 "Transportation project" is a highway project or a transit project. 

49.1.35 "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. 

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49.2 Applicability 

49.2.1 Action applicability. 

(a) Except as provided for in 49.2.3 or 40 CFR 93.126, conformity 

determinations are required for: 

(1) The adoption, acceptance, approval or support of transportation 

plans and transportation plan amendments developed pursuant to 

23 CFR 450 or 49 CFR 613 by the MPO or RIDOT; 

(2) The adoption, acceptance, approval or support of TIPs and TIP 

amendments developed pursuant to 23 CFR 450 or 49 CFR 613 by 

the MPO or RIDOT; and 

(3) The approval, funding, or implementation of FHWA/FTA projects. 

(b) Conformity determinations are not required under this subpart for 

individual projects which are not FHWA/FTA projects. However, 40 CFR 

93.121 applies to such projects if they are regionally significant. 

49.2.2 Geographic applicability. 

(a) The provisions of this regulation 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. 

(b) The provisions of this regulation apply with respect to emissions of the 

following criteria pollutants: ozone, carbon monoxide (CO), nitrogen 

dioxide (NO2), particles with an aerodynamic diameter less than or equal 

to a nominal 10 micrometers (PM10); and particles with an aerodynamic 

diameter less than or equal to a nominal 2.5 micrometers (PM2.5). 

(c) The provisions of this regulation also apply with respect to emissions of 

the following precursor pollutants: 

(1) Volatile organic compounds (VOC) and nitrogen oxides (NOx) in 

ozone areas; 

(2) NOx in N02 areas; 

(3) VOC and/or NOx in PM 10 areas if the EPA Regional Administrator 

or the Chief of the Office of Air Resources has made a finding that 

transportation-related emissions of one or both of these precursors 

within the nonattainment area are a significant contributor to the 

PM 10 nonattainment problem and has so notified the MPO, 

6 
RIDOT, RIPTA, 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; 

(4) NOx in PM2.5 areas, unless both the EPA Regional Administrator 

and the Chief of the Office of Air Resources have made a finding 

that transportation-related emissions of NOx within the 

nonattainment area are not a significant contributor to the PM2.5 

nonattainment problem and has so notified the MPO, RIDOT, 

RIPTA, 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 reasonable 

further progress, attainment or maintenance strategy; and 

(5) VOC, sulfur dioxide (SO2) and/or ammonia (NH3) in PM2.5 areas 

either if the EPA Regional Administrator or the Chief of the Office 

of Air Resources has made a finding that transportation-related 

emissions of any of these precursors within the nonattainment area 

are a significant contributor to the PM2.5 nonattainment problem and 

has so notified the MPO, RIDOT, RIPTA, 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. 

(d) The provisions of this subpart apply to PM2.5 nonattainment and 

maintenance areas with respect to PM2.5 from re-entrained road dust if the 

EPA Regional Administrator or the Chief of the Office of Air Resources 

has made a finding that re-entrained road dust emissions within the area 

are a significant contributor to the PM2.5 nonattainment problem and has so 

notified the MPO, RIDOT, RIPTA, and DOT, or if the applicable 

implementation plan (or implementation plan submission) includes reentrained road dust in the approved (or adequate) budget as part of the 

reasonable further progress, attainment or maintenance strategy. Reentrained road dust emissions are produced by travel on paved and 

unpaved roads (including emissions from anti-skid and deicing materials). 

(e) The provisions of this regulation 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. 

49.2.3 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 

7 
approval as described in 40 CFR 93.114, except as provided by 40 CFR 

93.114(b). 

49.2.4 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, PMio, PM2.5 or NO2 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 designation to 

nonattainment for each NAAQS for such pollutant. 

49.3 Consultation 

49.3.1 This rule provides procedures for federal, state, and local interagency 

consultation, public consultation and resolution of conflicts. Such consultation 

procedures shall be undertaken by the MPO, RIDOT, RIPTA, and DOT with the 

Department and EPA before making conformity determinations and by the 

Department and EPA with the MPO, RIDOT, RIPTA, and DOT in developing 

applicable implementation plans. 

49.3.2 Interagency consultation procedures: General factors. 

(a) The MPO, the Department and RIDOT shall undertake an interagency 

consultation process in accordance with this section with each other and 

with local or regional offices of EPA, FHWA, and FTA on the 

development of the applicable implementation plan, the transportation 

plan, the TIP, and associated conformity determinations. RIPTA shall be 

provided the opportunity to participate and may participate if they choose. 

(b) The Department shall be the lead agency responsible for preparing the 

final document or decision and for assuring the adequacy of the 

interagency consultation process with respect to the development of the 

applicable implementation plan and the list of TCMs in the approved 

applicable implementation plan. The MPO shall be the lead agency 

responsible for preparing the final document or decision and for assuring 

the adequacy of the interagency consultation process with respect to the 

transportation plan, the TIP, any amendments or revisions thereto, and any 

conformity determinations. 

(c) In addition to the lead agencies identified in subsection 49.3.2(b), other 

agencies entitled to participate in any interagency consultation process 

under this rule include the RIDOT, RIPTA, FHWA, FTA, and EPA. 

(d) It shall be the role and responsibility of each lead agency in an interagency 

consultation process, as specified in subsection 49.3.2(b), to confer with 

all other agencies identified under subsection 49.3.2(c) with an interest in 

8 
the document to be developed, provide all appropriate information to those 

agencies needed for meaningful input, solicit early and continuing input 

from those agencies, conduct the consultation process described in the 

applicable paragraphs of 40 CFR 93.105, where required, assure policylevel contact with those agencies and prior to taking any action, consider 

the views of each such agency and respond to those views in a timely, 

substantive written manner prior to any final decision on such document, 

and assure that such views and written response are made part of the 

record of any decision or action. It shall be the role and responsibility of 

each agency specified in subsection 49.3.2(c), when not fulfilling the role 

and responsibilities of a lead agency, to confer with the lead agency and 

other participants in the consultation process, review and comment as 

appropriate (including comments in writing) on all proposed and final 

documents and decisions in a timely manner, attend consultation and 

decision meetings, assure policy-level contact with other participants, 

provide input on any area of substantive expertise or responsibility 

(including planning assumptions, modeling, information on status of TCM 

implementation, and interpretation of regulatory or other requirements), 

and provide technical assistance to the lead agency or consultation process 

in accordance with this paragraph when requested. 

49.3.3 Specific roles, responsibilities, and organizational level of various participants in 

the interagency consultation process shall be as follows 

(a) The Department shall be responsible for developing emissions inventories, 

emissions budgets, air quality modeling, coordinating with the MPO for 

traffic related modeling, applicable implementation plan demonstrations, 

including emissions budgets as necessary and any applicable 

implementation plan TCMs. 

(b) The MPO shall be responsible for developing transportation plans and 

TIPs; evaluating TCM transportation impacts; developing transportation 

and socioeconomic data and planning assumptions for use in emissions 

analysis to determine conformity of transportation plans, TIPs, and 

projects; determining regionally significant projects, convening air quality 

technical review meetings on specific projects when requested by other 

agencies or as needed, identifying system- or facility-based or other 

programmatic TCMs; providing technical and policy input on emissions 

budgets; performing transportation modeling and regional emissions 

analyses and documenting timely implementation of TCMs needed for 

conformity assessments. 

(c) RIDOT shall be responsible for providing technical input on proposed 

revisions to motor vehicle emissions factors, distributing draft and final 

project environmental documents to other agencies, and identifying 

9 
regionally significant highway and rail projects and project changes in the 

TIP and Long Range Transportation Plan. 

(d) RIPTA shall be responsible for identifying regionally significant bus 

transit projects and project changes in the TIP and Long Range 

Transportation Plan. 

(e) FHWA and FTA shall be responsible for assuring timely action on final 

findings of conformity, after consultation with other agencies as provided 

in this section, providing guidance on the transportation planning process 

to agencies in interagency consultation. 

(f) EPA shall be responsible for reviewing, finding adequate, and approving 

updated motor vehicle emissions budgets and providing guidance on 

conformity criteria and procedures to agencies in interagency consultation. 

49.3.4 It shall be the affirmative responsibility of the agency with the responsibility for 

preparing the final document or decision subject to the interagency consultation 

process to initiate the process by notifying other participants, convene 

consultation meetings early in the process of decision on the final document, 

appoint the conveners of technical meetings, and assure that all relevant 

documents and information are supplied to all participants in the consultation 

process in a timely manner. 

49.3.5 Regular consultation on major activities such as the development of an applicable 

implementation plan, the development of a transportation plan, the development 

of a TIP, or any determination of air quality conformity on transportation plans or 

TIPs, shall include meetings at regular, scheduled intervals no less frequently than 

semiannually, unless the consensus of the group determines that a meeting is not 

warranted and shall be attended by representatives of each agency. In addition, 

technical meetings shall be convened as necessary. 

49.3.6 Each lead agency in the consultation process required under this section (that is, 

the agency with the responsibility for preparing the final document subject to the 

interagency consultation process) shall confer with all other agencies identified 

under 49.3.2(c) with an interest in the document to be developed, provide all 

appropriate information to those agencies needed for meaningful input, and, prior 

to taking any action, consider the views of each such agency and respond to those 

views in a timely, substantive written manner prior to any final decision on such 

document. Such views and written response shall be made part of the record of 

any decision or action. 

49.3.7 The Department will prepare a list of any TCMs in the approved applicable 

implementation plan and provide this list to the interagency consultation process 

in accordance with 49.3.2. 

10 
49.3.8 Interagency consultation procedures: Specific processes. 

(a) An interagency consultation process in accordance with paragraph 49.3.2 

involving the Air Quality Working Group, comprised of the MPO, the 

Department, RIDOT, RIPTA, EPA, FHWA, and FTA shall be undertaken 

for the following: 

(1) Evaluating and choosing a model (or models) and associated 

methods and assumptions to be used in hot-spot analyses and 

regional emissions analyses to be conducted in accordance with 

paragraph 49.3.2. 

(2) Determining which transportation projects should be considered 

"regionally significant" for the purposes of regional emissions 

analysis (in addition to those functionally classified as principal 

arterial or higher 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, to be 

conducted in accordance with paragraph 49.3.2; 

(3) Evaluating whether projects otherwise exempted from meeting the 

requirements of 40 CFR 93 (i.e. projects described in 40 CFR 

93.126 and 93.127) should be treated as non-exempt in cases 

where potential adverse emissions impacts may exist for any 

reason, to be conducted in accordance with paragraph 49.3.2; 

(4) Making a determination, as required by 40 CFR 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, to be conducted in accordance with paragraph 49.3.2. This 

consultation process shall also consider whether delays in TCM 

implementation necessitate revisions to the applicable 

implementation plan to remove TCMs or substitute TCMs or other 

emission reduction measures; 

(5) Notification of transportation plan or TIP revisions or amendments 

which merely add or delete exempt projects listed in 40 CFR 

93.126 or 40 CFR 93.127, to be conducted in accordance with 

paragraph 49.3.2; 

(6) Choosing conformity tests and methodologies for isolated rural 

nonattainment and maintenance areas, as required by 40 CFR 

11 
93.109(n)(2)(iii) to be conducted in accordance with paragraph 

49.3.2. 

(7) During preparation of the transportation plan and TIP, the MPO 

will request that participants of the interagency consultation 

process identify all non-FHWA/FTA transportation projects and 

their design concept and scope, including those where detailed 

design features have not yet been decided, and determine which 

ones meet the definition of regionally significant for regional 

emissions modeling. Any recipient of federal funding, as defined 

in 40 CFR 93.101, is required to disclose to the MPO information 

regarding all non-FHWA/FTA regionally significant projects and 

any changes to these plans shall be immediately disclosed. 

An interagency consultation process in accordance with paragraph 49.3.2 

involving the MPO, the Department, RIDOT, and RIPTA shall be 

undertaken for the following: 

(1) Evaluating events which will trigger new conformity 

determinations in addition to those triggering events established in 

40 CFR 93.104, to be conducted in accordance with paragraph 

49.3.2; and 

(2) Consulting on emissions analysis for transportation activities 

which cross the borders of MPOs or nonattainment areas or air 

basins, to be conducted in accordance with paragraph 49.3.2. 

(3) Cooperative planning and analysis for purposes of determining 

conformity of all projects outside the metropolitan area and within 

the nonattainment or maintenance area, to be conducted in 

accordance with paragraph 49.3.2. 

(4) Assurance that plans for construction of regionally significant 

projects which are not FHWA/FTA projects (including projects for 

which alternative locations, design concept and scope, or the nobuild option are still being considered), including all those by 

recipients of funds designated under title 23 U.S.C. or the Federal 

Transit Act are disclosed to the MPO on a regular basis, and to 

assure that any changes to those plans are immediately disclosed. 

(5) A process in accordance with paragraph 49.3.2 involving the MPO 

and other recipients of funds designated under title 23 U.S.C. or 

the Federal Transit Act shall be undertaken for assuming the 

location and design concept and scope of projects that are 

disclosed to the MPO as required by 49.3.8(d) of this section but 

whose sponsors have not yet decided these features, in sufficient 

12 
detail to perform the regional emissions analysis according to the 

requirements of 40 CFR 93.122, to be conducted in accordance 

with paragraph 49.3.2. 

(6) Designing, scheduling, and funding of research and data collection 

efforts and regional transportation model development by the MPO 

(e.g., household/ travel transportation surveys), to be conducted in 

accordance with paragraph 49.3.2. 

(7) Transportation Plan or TIP revisions or amendments that add or 

delete exempt projects as listed in 40CFR93.126 Table 2 or 

40CFR93.127 Table 3. 

(c) If a Plan or TIP amendment project or action is deemed exempt under the 

EPA Air Quality Conformity Rule (40 CFR Parts 51 & 93), the MPO will 

issue a letter to the Department stating such, and ask the department for 

their concurrence. 

(d) The MPO will provide final documents (including the applicable 

implementation plan, transportation plans, TIPs, plan/TIP amendments 

and conformity determinations) and supporting information to each 

agency after approval or adoption. This process is applicable to all 

agencies including the MPO, RIDOT, RIPTA, the Department, FHWA, 

FTA and EPA. 

49.3.9 Resolving conflicts. 

(a) The Department shall refer any conflict between the Department and the 

MPO concerning a proposed determination of conformity (or other policy 

decision under this ruIe)to the Governor if the conflict cannot be resolved 

by the heads of the involved agencies. The agencies shall make every 

effort to resolve any differences, including personal meetings between the 

heads of such agencies or their policy-level representatives, to the extent 

possible. 

(b) The Department has 14 calendar days to appeal a proposed determination 

of conformity (or other policy decision under this rule) to the Governor 

after the MPO has notified the Department of the resolution of all 

comments on such proposed determination of conformity or policy 

decision. Such 14-day period shall commence when the MPO has 

confirmed receipt by the director of the Department of the resolution of 

the comments of the Department. If the Department appeals to the 

Governor, the final conformity determination must have the concurrence 

of the Governor. The Department must provide notice of any appeal under 

this subsection to the MPO. If the Department does not appeal to the 
Governor within 14 days, the MPO may proceed with the final conformity 

determination. 

(c) The Governor may delegate the role of hearing any such appeal under this 

subsection and of deciding whether to concur in the conformity 

determination to another official or agency within the State, but not to the 

head or staff of the Department, RIDOT, any agency that has 

responsibility for only one of these functions, or the MPO. 

49.3.10 Public Consultation Procedures 

The MPO will follow its adopted public involvement procedures, which were 

developed in accordance with the requirements for public involvement in 23 CFR 

450, when making conformity determinations on transportation plans, programs, 

and projects. 

These procedures establish a proactive public involvement process which provides 

opportunity for public review and comment by, at a minimum, providing 

reasonable public access to technical and policy information considered by the 

MPO at the beginning of the public cornment period and prior to taking formal 

action on a conformity determination for the Long Range Transportation Plan and 

TIP, consistent with these requirements and those of 23 CFR 450. 

Meetings of the Air Quality Working Group are open to the public. Any charges 

imposed for public inspection and copying are consistent with the fee schedule 

contained in 49 CFR 7.43. The Air Quality Working Group shall also provide 

opportunity for public involvement in conformity determinations for projects 

where otherwise required by law. 

Additionally, the MPO will address in writing all public comments that plans for 

regionally significant non-FHWA/FTA projects are not properly reflected in the 

emissions analysis. 

49.4 Commitments for Regional Emissions Analysis 

In accordance with 40 CFR 93.122(a)(4)(h), the MPO will not include emissions 

reduction credits from control measures that are not included in the transportation plan or 

transportation improvement program and that do not require a regulatory action in the 

regional emissions analysis used in the conformity determination unless the MPO or 

FHWA/FTA obtains written commitments, as defined in 40 CFR 93.101, from the 

appropriate entities to implement those control measures. The written commitments to 

implement those control measures must be fulfilled by the appropriate entities. 

49.5 Cornmitments for Project-Level Mitigation and Control Measures 

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

determination for a transportation project, FHWA/FTA must obtain from the project 

sponsor and/or operator a written commitment, as defined in 40 CFR 93.101, to 

implement any project-level mitigation or control measure in the construction or 

operation of the project identified as a condition for NEPA process completion. The 

written commitment to implement such a project-level mitigation or control measure must 

be fulfilled by the appropriate entity. Prior to making a conformity determination for the 

transportation plan or TIP, the project sponsor will ensure any project level mitigation or 

control measures for which a written commitment has been made are included in the 

project design concept and scope and are appropriately identified in the regional 

emissions analysis used in the conformity analysis. Written commitments must be 

obtained before such mitigation or control measures are used in a project-level hot-spot 

conformity analysis for a project-level determination and project sponsors must comply 

with such commitments. 

49.6 Purpose 

The purpose of this regulation is to fulfill the requirement in 40 CFR 51.390(b) to 

establish a SIP revision that includes the following three sections of the federal 

transportation conformity rule: 

• 40 CFR 93.105, which addresses consultation procedures; 

• 40 CFR 93.122(a)(4)(h), which states that applicable implementation plans for 

conformity must require that written commitments to control measures be 

obtained prior to a conformity determination if the control measures are not 

included in a metropolitan planning organization's (MPO's) transportation plan 

and transportation improvement program (TIP); and that such a commitment be 

fulfilled; and 

• 40 CFR 93.125(c), which states that applicable implementation plans for 

conformity must require that written commitments to mitigation measures be 

obtained prior to a project-level conformity determination, and that project 

sponsors comply with such commitments. 

Once this state regulation is approved by EPA into the Rhode Island implementation 

plan, it has full legal effect. Conformity determinations will be governed by these criteria 

and procedures as well as any applicable portions of the federal conformity rules that are 

not addressed by the state rule. 

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49.7 Authority 

These regulations are authorized pursuant to R.I. Gen. Law §§ 42-17.1 -2(s) and 23-23, as 

amended, and have been promulgated pursuant to the procedures set forth in the RJ. 

Administrative Procedures Act, RJ. Gen. Laws Chapter 42-35 

49.8 Application 

The terms and provisions of this regulation shall be liberally construed to permit the 

Department to effectuate the purposes of state law, goals and policies. 

49.9 Severability 

If any provision of this regulation or the application thereof to any person or circumstance, 

is held invalid by a court of competent jurisdiction, the validity of the remainder of the 

regulation shall not be affected thereby. 

49.10 Effective Date 

The foregoing regulation, "Transportation Conformity", after due notice, is hereby adopted 

and filed with the Secretary of State this 30th day of September, 2011 to become effective 

twenty (20) days thereafter, in accordance with the provisions of Chapters 23-23,42-35,42-

17.1,42-17.6, of the General Laws of Rhode Island of 1956, as amended. 

Janet Coit, Director 

Department of Environmental Management 

Notice Given on: July 15,2011 

Filing Date: September 30,2011 

Effective Date: October 20,2011 

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