Transportation Conformity Regulations
Updated March 2010
United States
Environmental Protection
Agency
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Transportation Conformity Regulations
Updated March 2010
Transportation and Regional Programs Division
Office of Transportation and Air Quality
U.S. Environmental Protection Agency
v>EPA
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.
United States EPA-420-B-10-006
Environmental Protection .. , on. n
Agency March 2010
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§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 Under Title 23 U.S.C.
or the Federal Transit Laws
§51.390 Implementation plan revision.
(a) Purpose and applicability. 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 and 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 other 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's
conformity provisions apply equally to non-
federal 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
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§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 addressed 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 Under 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, PMio, and PM2.5 violations (hot-
spots).
§93.117 Criteria and procedures: Compliance
with PMio and PM2.5 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, PMio, and PM2.5 concentrations (hot-
spot analysis).
§93.124 Using the motor vehicle emissions
budget in the applicable implementation
plan (or implementation plan submission)
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§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 conformity 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 recipients 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 etseq. ).
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 period 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)(l),
182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 187(g),
189(a)(l)(B), 189(b)(l)(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 highway, grade-separated
highway, reserved right-of-way rail transit,
mixed-traffic rail transit, exclusive busway,
etc.
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§93.101
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
constructed or added, length of project,
signalization, access control including
approximate number and location of
interchanges, preferential treatment for high-
occupancy 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 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.
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 implementation. For analytical
purposes, it must be defined 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 describes the envisioned
transportation system according to §93.106.
Hot-spot analysis is an estimation of likely
future localized CO, PMio, and/or PM2.5
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 highways 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 previously existed and/or
would otherwise exist during the future period
in question, if the project were not
implemented.
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§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 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.
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 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.
Maintenance plan means an implementation
plan under section 175 A of the CAA, as
amended.
Metropolitan planning organization (MPO)
means the policy board of an organization
created as a result of the designation process
in23U.S.C. 134(d).
Milestone has the meaning given in CAA
sections 182(g)(l) 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.
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 PM10 NAAQS means the 24-
hour PMio national ambient air quality
standard codified at 40 CFR 50.6.
(4) 1997PM2.5 NAAQS means the PM2.5
national ambient air quality standard codified
at 40 CFR 50.7.
(5) 2006 PM2.5 NAAQS means the 24-hour
PM2.5 national ambient air quality standard
codified at 40 CFR 50.13.
(6) AnnualPMw NAAQS means the annual
PMio national ambient air quality standard
that EPA revoked on December 18, 2006.
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§93.101
NEPA means the National Environmental
Policy Act of 1969, as amended (42 U.S.C.
4321 etseq.).
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 statutory provision for which
the implementation plan revision was
submitted, such as reasonable further progress
or attainment.
Recipient of funds designated 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 contractors or entities that
are only paid for services or products created
by their own employees.
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.
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 satisfy 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 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 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;
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§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. Notwithstanding 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 through 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, acceptance, 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 determinations are not
required under this subpart for individual
projects which are not 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 (NO2), particles with
an aerodynamic diameter less than or equal to
a nominal 10 micrometers (PMio); and
particles with an aerodynamic diameter less
than or equal to a nominal 2.5 micrometers
(PM2.5).
(2) The provisions of this subpart also
apply with respect to emissions of the
following precursor pollutants:
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§93.102(b)-(d)
(i) Volatile organic compounds (VOC) and
nitrogen oxides (NOx) in ozone areas;
(ii) NOx in NO2 areas;
(iii) VOC and/or NOX in PMi0 areas if the
EPA Regional Administrator or the director of
the State air agency 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 PMio
nonattainment problem and 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) NOx in PM2.5 areas, unless both the
EPA Regional Administrator and the director
of the state air agency 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 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
(v) VOC, sulfur dioxide (SO2) and/or
ammonia (NH3) in PM2 5 areas either if the
EPA Regional Administrator 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 PM2.5
nonattainment problem and 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
PM2.5 nonattainment and maintenance areas
with respect to PM2.5 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 significant contributor to
the PM2 5 nonattainment problem and has so
notified the MPO and DOT, or if the
applicable implementation plan (or
implementation plan submission) includes re-
entrained 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, PMio, PM2.5 orNO2 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.
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§93.103 • §93.104(d)
§ 93.103 Priority.
When assisting or approving any action with
air quality-related consequences, FHWA and
FTA shall give priority to the implementation
of those transportation 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 redeterminations 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 improvement 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 section. 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 the 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; acquisition of a significant
portion of the right-of-way; and, construction
(including Federal approval of plans,
specifications and estimates).
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§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 paragraph (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 yet been used in a
conformity determination 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 section. 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)(l) of this section, before
making conformity determinations.
(b) Interagency consultation procedures:
General factors.
(1) States shall provide well-defined
consultation procedures in the implementation
plan whereby representatives of the MPOs,
State and local air quality 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 FT A on the development of the
implementation plan, the transportation plan,
the TIP, and associated conformity
determinations.
(2) Interagency consultation procedures
shall include at a minimum the following
general factors and the specific processes in
paragraph (c) of this section:
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§93.105(b)-(c)
(i) The roles and responsibilities 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 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;
(iii) Evaluating whether 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)(l), 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 consider 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 transportation 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
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§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 alternative 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 transportation surveys).
(7) A process for providing final
documents (including applicable
implementation plans and implementation
plan revisions) and supporting information to
each agency after approval or adoption. This
process is applicable to all agencies described
in paragraph (a)(l) 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 concurrence 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 his 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 transportation plans,
programs, and projects shall 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 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 those 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.
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§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 section, 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 modifications to the existing
transportation network which the
transportation plan envisions 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 transportation policies,
requirements, services, 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 EPAs
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
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§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 designated 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 paragraph (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 regional 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 last 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 consultation with state and
local air quality agencies, solicitation of public
comments, and consideration of such
comments.
(e) Savings. The requirements of this
section supplement other requirements of
applicable law or regulation 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 consideration of alternatives
in the NEPA process or other project
development studies. Should the NEPA
process result in a project 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
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§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 projects), 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 (1) 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, PM10, andPM25 hot-spots.
§93.117 PM10 and PM25 control measures
Project (Not From a Conforming Plan and TIP):
§93.113(d) TCMs
§93.114 Currently conforming plan and TIP
§93.116 CO, PM10, andPM25 hot-spots.
§93.117 PMio and PM25 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
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§93.109(c)
emissions tests are satisfied as described in the
following:
(1) In all 1-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 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 NOx, 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 NOx. The
implementation plan for the 1-hour ozone
NAAQS will be considered to establish a
motor vehicle emissions budget for NOx if the
implementation plan or plan submission
contains an explicit NOx motor vehicle
emissions budget that is intended to act as a
ceiling on future NOx emissions, and the NOx
motor vehicle emissions budget is a net
reduction from NOx 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 emissions 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)(l) of this section).
(5) Notwithstanding paragraphs (c)(l) 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)(l) 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 established by the EPA
16
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§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
NOX, 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 include a motor vehicle
emissions budget for NOX. The
implementation plan for the 8-hour ozone
NAAQS will be considered to establish a
motor vehicle emissions budget for NOx if the
implementation plan or plan submission
contains an explicit NOx motor vehicle
emissions budget that is intended to act as a
ceiling on future NOx emissions, and the NOx
motor vehicle emissions budget is a net
reduction from NOx 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 emissions 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
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§93.109(d)-(e)
vehicle emissions budget(s) (as described in
paragraph (d)(l) of this section).
(5) Notwithstanding paragraphs (d)(l) 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)(l) 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 established 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)(l) of this section
applying, the following test(s) must be
satisfied:
(i) If the 8-hour ozone 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 geographic 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
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§93.109(e)
budget test for the 8-hour ozone NAAQS in
such cases, these emissions reductions must
come from within the 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 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 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
NOx, 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 include a motor vehicle
emissions budget for NOX. The
implementation plan for the 8-hour ozone
NAAQS will be considered to establish a
motor vehicle emissions budget for NOx if the
implementation plan or plan submission
contains an explicit NOx motor vehicle
emissions budget that is intended to act as a
ceiling on future NOx emissions, and the NOx
motor vehicle emissions budget is a net
reduction from NOx emissions levels in 2002.
Prior to an adequate or approved NOx 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 NOx if the
implementation plan contains an explicit NOx
motor vehicle emissions budget that is
intended to act as a ceiling on future NOx
emissions, and the NOx motor vehicle
emissions budget is a net reduction from NOx
emissions levels in 1990.
(4) Notwithstanding paragraphs (e)(l) 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
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§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)(l) 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 established 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 test 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 maintenance 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 provided 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 emissions 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 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
(f)(2) of this section).
(g) PMw 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 PMio
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 PMio
nonattainment or maintenance areas must
satisfy the hot spot test required by
§93.116(a).
20
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§93.109(g)-(i)
(2) In PMio nonattainment and
maintenance areas where a budget is
submitted for the 24-hour PMio 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 maintenance 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 PMio
NAAQS, if such a budget exists.
(4) In PMio 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 demonstration of impracticability
under CAA section 189(a)(l)(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 NC>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 NC>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 maintenance 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 NC>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 PA/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 PM2.5 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
PM2.5 nonattainment or maintenance areas
must satisfy the appropriate hot-spot test
required by §93.116(a).
(2) In such 1997 PM2.5 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
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§93.109(1)-(k)
a motor vehicle emissions budget in a
submitted control strategy implementation
plan revision or maintenance 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 PM2.5 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 PM2.5 NAAQS nonattainment and
maintenance areas without 1997 PM2.5
NAAQS motor vehicle emissions budgets for
any portion of the 2006 PM2.5 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 PM2.5
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 PM2.5
nonattainment and maintenance areas must
satisfy the appropriate hot-spot test required
by §93.116(a).
(2) In such PM2.5 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
PM2.5 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.
(3) In such PM2 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
PM2.5 NAAQS and no adequate motor vehicle
emissions budget from a submitted control
strategy implementation plan revision or
maintenance plan for the 2006 PM2.5 NAAQS.
(k) 2006 PM2.5 NAAQS nonattainment and
maintenance areas with motor vehicle
emissions budgets for the 1997 PM2.5 NAAQS
that cover all or a portion of the 2006 PM2,s
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 PM2 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 PM2.5
nonattainment and maintenance areas must
satisfy the appropriate hot-spot test required
by§93.116(a).
(2) In such PM2.s 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
PM2.s NAAQS is adequate for transportation
conformity purposes;
(ii) The publication date of EPA's approval
of such a budget in the Federal Register, or
22
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§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 PM2 5 nonattainment area
covers the same geographic area as the 1997
PM2 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 PM2.5
applicable implementation plan or
implementation plan submission;
(ii) If the 2006 PM2 5 nonattainment area
covers a smaller geographic area within the
1997 PM2 5 nonattainment or maintenance
area(s), the budget test as required by §93.118
for either:
(A) The 2006 PM2 5 nonattainment area
using corresponding portion(s) of the
approved or adequate motor vehicle emissions
budgets in the 1997 PM2.5 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 PM2 5 nonattainment area
using the approved or adequate motor vehicle
emissions budgets in the 1997 PM2.s
applicable implementation plan or
implementation plan submission. If additional
emissions reductions are necessary to meet the
budget test for the 2006 PM2.5 NAAQS in
such cases, these emissions reductions must
come from within the 2006 PM2 5
nonattainment area;
(iii) If the 2006 PM2.s nonattainment area
covers a larger geographic area and
encompasses the entire 1997 PM2 5
nonattainment or maintenance area(s):
(A) The budget test as required by §93.118
for the portion of the 2006 PM2.5
nonattainment area covered by the approved
or adequate motor vehicle emissions budgets
in the 1997 PM2 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
PM2 5 nonattainment area not covered by the
approved or adequate budgets in the 1997
PM2 5 implementation plan, the entire 2006
PM2.5 nonattainment area, or the entire portion
of the 2006 PM2 5 nonattainment area within
an individual state, in the case where separate
1997 PM2.5 SIP budgets are established for
each state of a multi-state 1997 PM2.5
nonattainment or maintenance area; or
(B) The budget test as required by §93.118
for the entire 2006 PM2 5 nonattainment area
using the approved or adequate motor vehicle
emissions budgets in the applicable 1997
PM2.s implementation plan or implementation
plan submission.
(iv) If the 2006 PM2 5 nonattainment area
partially covers a 1997 PM2 5 nonattainment or
maintenance area(s):
(A) The budget test as required by §93.118
for the portion of the 2006 PM2.5
nonattainment area covered by the
corresponding portion of the approved or
adequate motor vehicle emissions budgets in
the 1997 PM2.5 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 PM2 5 nonattainment area
not covered by the approved or adequate
budgets in the 1997 PM2 5 implementation
plan, the entire 2006 PM2 5 nonattainment
area, or the entire portion of the 2006 PM2.5
nonattainment area within an individual state,
in the case where separate 1997 PM2 5 SIP
budgets are established for each state in a
multi-state 1997 PM2.5 nonattainment or
maintenance area.
23
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§93.109(1)-(n)
(1) 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 section is still required,
including the hot-spot requirements for
projects in CO, PMio, and PM2.5 areas.
(m) Areas with insignificant motor vehicle
emissions. Notwithstanding the other
paragraphs in this section, an area is not
required to satisfy a regional emissions
analysis for §93.118 and/or §93.119 fora
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 current state of air quality
as determined by monitoring data for that
NAAQS, the absence of SIP motor vehicle
control measures, and historical 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, PMio, and PM2.5 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 increase 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, PMio, and PM2.5 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
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§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 rural 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 NOX in all ozone nonattainment
and maintenance areas, notwithstanding
§93.119(f)(2));or
(C) As demonstrated by the air quality
dispersion model or other air quality modeling
technique used in the attainment
demonstration or maintenance plan, the
FHWA/FTA project, in combination with all
other regionally significant projects expected
in the area in the timeframe of the statewide
transportation plan, must not cause or
contribute to any new 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)(l)(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 determination, 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 paragraphs (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)(l)(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 determination 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
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§ §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 assumptions 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 shall 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 availability 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-planning 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 availability 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 availability, 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
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§93.113 • §93.114(a)
§ 93.113 Criteria and procedures: Timely
implementation of TCMs.
(a) The transportation 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 schedule 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 outside 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 are no other TCMs in the
TIP, if the funds are reallocated 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.
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§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 transportation 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 design
concept and scope which includes project-
level 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, PMio, and PM2.s violations
(hot-spots).
(a) This paragraph applies at all times.
The FHWA/FTA project must not cause or
contribute to any new localized CO, PMio,
and/or PM2.5 violations, increase the
frequency or severity of any existing CO,
PMio, and/or PM2.5 violations, or delay timely
attainment of any NAAQS or any required
interim emission reductions or other
milestones in CO, PMio, and PM2.5
28
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§93.116(a) • §93.118(b)
nonattainment and maintenance areas. This
criterion is satisfied without a hot-spot
analysis in PMio and PM2.5 nonattainment and
maintenance areas for FHWA/FTA projects
that are not identified in §93.123(b)(l). This
criterion is satisfied for all other FHWA/FTA
projects in CO, PMio and PM2.5 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 emissions 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)(l)(i) and the
methodology requirements of §93.123.
(b) This paragraph applies for CO
nonattainment areas as described in
§93.109(f)(l). 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 demonstrated that during the
time frame of the transportation plan (or
regional emissions analysis) existing localized
CO violations will be eliminated 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)(l)(i) and the methodology
requirements of §93.123.
§ 93.117 Criteria and procedures:
Compliance with PMio and PMi.s control
measures.
The FHWA/FTA project must comply with
any PMio and PM2.5 control measures in the
applicable implementation plan. This criterion
is satisfied if the project-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 PMio and PM25 emissions
from the construction activities and/or normal
use and operation associated 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
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§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 violation 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 pollutant 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
(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
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§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 transportation 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 established 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 currently 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 subject 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 EPA'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
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§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; increase the frequency or
severity of any existing 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)(l) 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 conformity, 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
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§93.118(f) • §93.119(b)
finding, EPA will repeat actions described in
paragraphs (f)(l)(i) through (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 finding to a finding of
inadequacy under paragraph (f)(l) 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 budget, EPA will repeat
actions described in paragraphs (f)(l)(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 publication 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)(l)(iii) through (v)
of this section. If EPA 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 criterion applies to the net
effect of the action (transportation 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)(l) 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 predicted 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)(l) if a regional emissions
analysis that satisfies the requirements of
33
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§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 predicted in the "Action"
scenario are not greater 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 predicted 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 predicted in the "Action"
scenario are not greater 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 1990
emissions.
(d) PMw and NO2 areas. This criterion
may be met in PMi0 and NO2 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 greater 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 greater 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 PMio 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) PM2.5 areas. This criterion may be met
in PM2.5 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 greater than the emissions
predicted in the "Baseline" scenario, and this
can be reasonably expected to be true in the
34
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§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 PM2.5 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 PM2.5
NAAQS other than the 1997 PM2.5 NAAQS.
(f) Pollutants. The regional emissions
analysis must be performed for the following
pollutants:
(1) VOC in ozone areas;
(2) NOx in ozone areas, unless the EPA
Administrator determines that additional
reductions of NOX would not contribute to
attainment;
(3) CO in CO areas;
(4) PMio in PMio areas;
(5) VOC and/or NOX in PMio areas if the
EPA Regional Administrator 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 significant contributor to
the PMio nonattainment problem and has so
notified the MPO and DOT;
(6) NOX in NO2areas;
(7) PM2.5 in PM2.5 areas;
(8) Reentrained road dust in PM2.5 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 PM2 5 nonattainment
problem and has so notified the MPO and
DOT;
(9) NOX in PM2.5 areas, unless the EPA
Regional Administrator and the director of the
State air agency have made a finding that
emissions of NOx from within the area are not
a significant contributor to the PM2.5
nonattainment problem and has so notified the
MPO and DOT; and
(10) VOC, SO2 and/or ammonia in PM2.5
areas if the EPA Regional 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 PM2.5 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)(l), and (e)(l) 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 the transportation plan.
35
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§93.119(h)-(i)
(h) "Baseline " scenario. The regional
emissions analysis required by paragraphs (b)
through (e) of this section 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 exempt from regional
emissions analysis as listed in §93.127 need
not be explicitly considered):
(1) All in-place regionally significant
highway and transit facilities, 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 acquisition 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 section 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 regionally significant
projects in the nonattainment area. The
"Action" scenario must include the following
(except that exempt projects listed in §93.126
and projects exempt from 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 (including 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 adopted 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 known 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 enforcing 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 determination, 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
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§93.1190) • §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 section, 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)(l) 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 first four years of the
currently conforming transportation 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 plan and TIP shall lapse
on the date that highway sanctions are
imposed on the nonattainment area for such
failure under section 179(b)(l) 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 recipient of Federal funds
37
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§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 project, 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 supporting 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 and all other regionally
significant projects expected in the
nonattainment or maintenance area
demonstrates that those projects in the
statewide transportation 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 paragraphs (a) and (b)
of this section, in nonattainment and
maintenance areas subject to §93.109(1) 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 project, 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
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§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 demonstrated 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 standards), or the Clean Air
Act requires the program without need for
individual State action and without any
discretionary authority for EPA to set its
stringency, delay its effective 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 are 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 maintenance programs, and
oxygenated or reformulated gasoline or diesel
fuel.
(6) The ambient temperatures used for the
regional emissions analysis shall be consistent
39
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§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)(l)(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 requirements 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-related 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 interagency consultation
process, as required by §93.105(c)(l)(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 employment 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 methodology
which differentiates between peak and off-
peak 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 factors 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 each
roadway segment represented in the network-
based 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
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§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)(l)(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 designated 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 projecting 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) PM10from construction-related fugitive
dust.
(1) For areas in which the implementation
plan does not identify construction-related
fugitive PMio as a contributor to the
nonattainment problem, the fugitive PMio
emissions associated with highway and transit
project construction are not required to be
considered in the regional emissions analysis.
(2) In PMio nonattainment and
maintenance areas with implementation plans
which identify construction-related fugitive
PMio as a contributor to the nonattainment
problem, the regional PMio emissions analysis
shall consider construction-related fugitive
PMio and shall account for the level of
construction activity, the fugitive PMio control
measures in the applicable implementation
plan, and the dust-producing capacity of the
proposed activities.
(f) PM2.5 from construction-related fugitive
dust.
(1) For PM2.5 areas in which the
implementation plan does not identify
construction-related fugitive PM2.5 as a
significant contributor to the nonattainment
problem, the fugitive PM2.5 emissions
associated with highway and transit project
construction are not required to be considered
in the regional emissions analysis.
(2) In PM2.5 nonattainment and
maintenance areas with implementation plans
41
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§93.122(f) • §93.123(a)
which identify construction-related fugitive
PM2 5 as a significant contributor to the
nonattainment problem, the regional PM2.5
level of construction activity, the fugitive
PM2.5 control measures in the applicable
implementation plan, and the dust-producing
capacity of the proposed activities, emissions
analysis shall consider construction-related
fugitive PM2.5 and shall account for the
(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 and/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 with 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 project in the new plan
and/or TIP are not significantly 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 regional emissions analysis
if allocating funds to the 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 transportation plan, the
previous regional emissions analysis is still
consistent with the requirements of §93.118
(including that conformity 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, PMio, and PM2.5
concentrations (hot-spot analysis).
(a) CO hot-spot analysis.
(1) The demonstrations required by
§93.116 ("Localized CO, PMio, and PM2.5
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
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§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 violation 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 maintenance 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 maintenance area with the
worst level of service, as identified in the
applicable implementation plan.
(2) In cases other than those described in
paragraph (a)(l) of this section, the
demonstrations required by §93.116 may be
based on either:
(i) Quantitative methods that represent
reasonable and common professional practice;
or
(ii) A qualitative consideration 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 any project described in
paragraphs (a)(l) 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 findings for applicable
FHWA or FTA projects.
(b) PMw and PM^.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 diesel vehicles, or those
that will change to Level-of-Service D, E, or F
because of increased traffic volumes from a
significant number of diesel vehicles related to
the project;
(iii) New bus and rail terminals and transfer
points that have a significant 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 vehicles congregating at a
single location; and
(v) Projects in or affecting locations, areas,
or categories of sites which are identified in
the PMio or PM2.5 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)(l) 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 any project described in
paragraph (b)(l) of this section based on
appropriate modeling. DOT, in consultation
with EPA, may also consider the current air
quality circumstances of a given PM2.5 or
PMio nonattainment or maintenance area in
categorical hot-spot findings for applicable
FHWA or FTA projects.
43
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§93.123(b) • §93.124(b)
(4) The requirements for quantitative
analysis contained in this paragraph (b) will
not take effect until EPA releases modeling
guidance on this subject 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 inputs which are required
for both analyses.
(4) CO, PMio, or PM2.5 mitigation or
control measures shall be assumed in the hot-
spot 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, PMio, and PM2.5 hot-spot analyses
are not required to consider construction-
related 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 and 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 the 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 demonstrate 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
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§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, unless the applicable
implementation plan (or implementation plan
submission) explicitly indicates 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, PMio, or PM2.5 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 determinations 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 relieved 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 transportation plan and TIP
still satisfy the applicable requirements of
§§93.118 and/or 93.119 and that the proj ect
still satisfies the requirements of §93.116, and
therefore that the conformity determinations
for the transportation plan, 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.
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§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)(l)(iii)), the EPA, and the FHWA
(in the case of a highway project) or the FT A
(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:
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Table 2—Exempt Projects
Safety
Railroad/highway crossing.
Projects that correct, improve, or eliminate 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 assistance other than signalization 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 reconstructing bridges (no additional travel lanes).
Emergency truck pullovers.
Mass Transit
Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles1 .
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 structures (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 existing vehicles or for minor expansions of the fleet1 .
Construction of new bus or rail storage/maintenance facilities 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 effects 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:: In PM10 and PM25 nonattainment or maintenance areas, such projects are exempt only if they are in compliance
with control measures in the applicable implementation plan.
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§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 projects with respect to CO
concentrations must be considered to determine if
a hot-spot analysis is required prior to making a
project-level conformity determination. The local
effects of projects with respect to PMio and PM2.5
concentrations must be considered and a hot-spot
analysis performed prior to making a project-
level conformity determination, if a project in
Table 3 also meets the criteria in §93.123(b)(l).
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)(l)(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 synchronization projects may be
approved, funded, and implemented without
satisfying the requirements 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 duration 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.
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