Guidance for Transportation Conformity

            Implementation in Multi-Jurisdictional

            Nonattainment and Maintenance Areas
&EPA
United States
Environmental Protection
Agency

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   Guidance for Transportation Conformity
    Implementation in Multi-Jurisdictional
    Nonattainment and Maintenance Areas
                 Transportation and Climate Division
                Office of Transportation and Air Quality
                U.S. Environmental Protection Agency
United States
Environmental Protection
Agency
EPA-420-B-12-046
July 2012

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Table of Contents
Section 1: Introduction                                                            6
1.1    What is the purpose of this guidance?	6
1.2    Who can I contact for more information?	7
1.3    Does this guidance create new conformity requirements?	7
1.4    What is a multi-jurisdictional area?	8
       1.4.1    OneMPO, One State (not a multi-jurisdictional area)	9
       1.4.2    More than One MPO	9
       1.4.3    Donut Areas	10
       1.4.4    Multi-State Areas	11
       1.4.5    One MPO that Covers More Than One Nonattainment or Maintenance Area .. 12
1.5    What are the general requirements for interagency consultation when determining
      conformity for a transportation plan/TIP?	13
1.6    Who is responsible for estimating emissions in a donut area of a nonattainment or
      maintenance area?	13
Section 2: Conformity Determinations and Regional Emissions Analyses in Areas
without Any Budgets                                                              15
2.1    To what areas does this section of the guidance apply?	15
2.2    What tests are used for the regional emissions analysis before a nonattainment area has
      budgets for a relevant pollutant?	15
2.3    What geographic area must be examined in regional emissions analyses and conformity
      determinations before a nonattainment area has budgets?	15
2.4    How can multiple agencies create a regional emissions analysis for the entire
      nonattainment area?	16
      2.4.1    More Than One MPO, in One or More States (without a Donut Area)	17
      2.4.2    One orMoreMPOs and a Donut Area	17
      2.4.3    Coordinating Transportation Plan and TIP Update and Amendment Cycles
              among MPOs	18
2.5    What decisions must be made in the interagency consultation process?	19
2.6    If one MPO in the area can meet the requirements of 40 CFR 93.119, but another MPO or
      a donut area cannot, can the MPO that meets the requirements show that its transportation
      plan and TIP conform and proceed?	21
Section 3: Conformity Determinations and Regional Emissions Analyses with SIP
Budgets for the Relevant NAAQS                                                 23
3.1    What does this section of the guidance cover?	23
3.2    How do nonattainment and maintenance areas determine conformity for a given NAAQS
      once budgets are available for that NAAQS?	23

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3.3     What geographic areas might budgets from a SIP cover, and how is conformity generally
       determined in multi-jurisdictional areas with budgets?	24
3.4     How is conformity demonstrated when budgets are established for an entire
       nonattainment or maintenance area that is within one state?	26
       3.4.1   More than One MPO	26
       3.4.2   One or More MPOs and aDonut Area	26
       3.4.3   Coordinating Transportation Plan and TIP Update and Amendment Cycles
              among MPOs	27
3.5     How is conformity demonstrated when there is more than one MPO in a single state and
       the SIP establishes subarea budgets for each MPO?	28
3.6     Can an MPO that has its own subarea budgets determine conformity of its transportation
       plan and/or TIP when another MPO in the same area is in a conformity lapse or
       conformity lapse grace period?	30
       3.6.1   Conformity Lapse	30
       3.6.2   Conformity Lapse Grace Period	31
3.7     Can a subarea budget be established for a donut area?	31
3.8     If a SIP establishes only subarea budgets, do MPOs have the option to use either an area-
       wide SIP budget or subarea budgets?	32
3.9     How do multi-state nonattainment and maintenance areas determine conformity if each
       state submits a  SIP that contains the same budgets for the entire multi-state area?	32
3.10   When would it  be likely for state air agencies in a multi-state nonattainment or
       maintenance area to submit SIPs with budgets that apply to the entire area?	33
3.11   How is conformity determined for multi-state nonattainment or maintenance areas when
       each state has a SIP that contains budgets only for its own state's portion of the area? .. 34
3.12   How is conformity determined for a multi-state nonattainment or maintenance areas
       when one state  has a budget for a NAAQS and the other state(s) does not have budgets
       for that pollutant?	34
Section 4:  Conformity Determinations and Regional Emissions Analyses with SIP
Budgets for Another NAAQS of the Same Pollutant                               35
4.1     To what areas does this section of the guidance apply?	35
4.2     What scenarios could result when determining conformity for a NAAQS using a budget
       from another NAAQS of the same pollutant?	35
4.3     What are the general test requirements for regional emissions analyses for these areas? 36
4.4     How is the budget test generally implemented in areas that do not have a budget for the
       relevant NAAQS but have a budget for another NAAQS of the same pollutant?	37
4.5     Where relevant NAAQS areas have to use both the budget test and the interim emissions
       test(s), what analysis years must be chosen?	39

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4.6    In an area that has subarea budgets for another NAAQS of the same pollutant, how
       should MPOs demonstrate conformity for the first time under the relevant NAAQS and
       for subsequent conformity determinations?	40
4.7    How would conformity be demonstrated in multi-state areas where each state has its own
       budget for another NAAQS of the same pollutant?	41
4.8    How is conformity demonstrated in Scenario 1 areas where one budget (or one set of
       budgets) apply for the entire area?	42
4.9    How is conformity demonstrated in a Scenario 1 area when subarea budgets have been
       established?	43
4.10   How is conformity demonstrated in multi-state Scenario 1 areas, where each state has its
       own budget?	43
4.11   How is conformity demonstrated in a Scenario 2 area, when the budget applies to the
       entire area for the relevant NAAQS?	44
4.12   How is conformity demonstrated in multi-state Scenario 2 areas, where each state has its
       own budget?	45
4.13   How is conformity demonstrated in a Scenario 3 area located entirely within one state? 46
4.14   How is conformity demonstrated in a Scenario 3 area located entirely within one state,
       when subarea budgets apply?	47
4.15   How is conformity demonstrated in a multi-state Scenario 3 area, where all the states
       have their own budgets?	48
4.16   How is the regional emissions analysis done in multi-state Scenario 3 areas, where only
       one of the states has its own budget(s)?	50
4.17   What are the special issues that the interagency consultation process should consider in
       Scenarios areas?	50
4.18   How is conformity demonstrated in a Scenario 4 area, when one budget applies for the
       entire area rather than subarea budgets?	51
4.19   How does a multi-state Scenario 4 area determine conformity, when each state has its
       own budget(s)?	53
4.20   How is the regional emissions analysis done in a multi-state Scenario 4 area, where only
       one of the states has its own budget?	53
4.21   What are special issues that the interagency consultation process should consider in
       Scenario 4 areas?	54

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Section 1: Introduction

1.1    What is the purpose of this guidance?

This guidance describes how transportation conformity determinations are done in areas where
multiple metropolitan planning organizations (MPOs), states, and/or other agencies have
jurisdiction in a nonattainment or maintenance area. This guidance updates and supersedes the
July 2004 "Companion Guidance for the July  1, 2004 Final Transportation Conformity Rule:
Conformity Implementation in Multi-Jurisdictional Nonattainment and Maintenance Areas for
Existing and New Air Quality Standards" (EPA420-B-04-012). In the 2004 guidance, EPA
clarified how transportation conformity determinations are completed where multiple agencies or
states are involved in nonattainment and maintenance areas specifically for the 1997 ozone and
PM2.5 National Ambient Air Quality Standards (NAAQS). EPA's transportation conformity rule
(40 CFR Parts 51 and 93) establishes the criteria and procedures for determining whether
transportation plans, transportation improvement programs (TIPs), and federally funded or
approved highway and transit projects are consistent with ("conform to") state air quality goals.

This updated guidance is being released as part of a larger EPA effort to restructure the
transportation conformity regulations so that they apply to existing and future NAAQS. EPA
published the Transportation Conformity Rule Restructuring Amendments ("Conformity
Restructuring" rule) on March 14, 2012 (77 FR  14979), which restructures two sections of the
transportation conformity rule so that existing requirements apply for  any NAAQS, including
new or revised NAAQS promulgated in the future. This guidance describes how the provisions
that were updated in the Conformity Restructuring rule apply in various types of areas and will
assist state and local governments in implementing conformity requirements.  It does not change
the substance of the 2004 guidance for addressing conformity requirements in multi-
jurisdictional areas because the revisions to the conformity regulations did not change the
requirements for the conformity tests. This guidance reflects the revised  structure of the
conformity regulations issued in the Conformity Restructuring rule.

Specifically, this guidance covers questions for multi-jurisdictional areas such as:
     What geographic area is covered by a conformity determination and regional emissions
       analysis?1
     How is the regional emissions analysis implemented?
     Who does what to develop the regional emissions analysis?
     What regional emissions test or tests apply for multi-jurisdictional areas that have
       adequate or approved State Implementation Plan (SIP) motor vehicle emissions budgets
       ("budgets") for a specific transportation-related criteria pollutant?
     How can multiple agencies create a regional emissions analysis for the entire
       nonattainment area before the area has SIP budgets for a relevant  criteria pollutant?
1 A regional emissions analysis is the part of a conformity determination that assesses whether the emissions
produced by transportation activities are consistent with state air quality goals. See 40 CFR 93.122 for details.
2 Transportation conformity applies in nonattainment areas and areas designated attainment after 1990
("maintenance areas") for ozone, carbon monoxide, nitrogen dioxide, PM10 and PM25 (40 CFR 93.102(b)).

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This guidance covers both existing and future nonattainment and maintenance areas and
highlights opportunities for flexibility.  It provides examples and interpretations for generic
scenarios involving regional emissions analyses that may occur in the field.  In the event
implementers have questions that are not addressed in this guidance, they should consult EPA
and the U.S. Department of Transportation (DOT).

DOT is EPA's federal partner in implementing the conformity regulation.  DOT participated in
the development of this guidance and concurred on its content.

The interagency consultation process is of key importance in multi-jurisdictional areas. Given
the fact that no two areas that implement conformity are exactly alike, the interagency
consultation process must be used to make the best choices for an area's circumstances where the
conformity rule provides flexibility. The interagency consultation provision of the conformity
rule, 40 CFR 93.105, requires that general processes and specific decisions be made through
established interagency consultation procedures.
1.2    Who can I contact for more information?

For specific questions concerning a particular nonattainment or maintenance area, please contact
the conformity staff person responsible for your state at the appropriate EPA regional office,
Federal Highway Administration (FHWA) division office or Federal Transit Administration
(FTA) regional office:
      A listing of the EPA Regions, the states they cover, and contact information for
       conformity staff can be found at the following website:
       http://www.epa.gov/otaq/stateresources/transconf/contacts.htm
      Contact information for FHWA division offices can be found at:
       http://www.fhwa.dot.gov/about/field.cfm
      Contact information for FTA regional offices can be found at:
       http://www.fta.dot.gov/about/12926.html

General questions about this guidance can be directed to EPA's Office of Transportation and Air
Quality: Laura Berry at berry.laura@epa.gov or (734)  214-4858, or Meg Patulski at
patulski .meg@epa.gov or (734) 214-4842.

Readers can also find this guidance document, the complete transportation conformity
regulation,  and other materials on EPA's website at:
http: //www.epa.gov/otaq/stateresources/transconf/index.htm
1.3    Does this guidance create new conformity requirements?

No.  This guidance is based on the requirements for conformity implementation contained in
CAA section 176(c) and 40 CFR Parts 51.390 and 93 Subpart A. This guidance does not create
any new conformity requirements. This guidance merely explains how to implement conformity
requirements in multi-jurisdictional areas.

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The statutory provisions and the EPA regulations described in this document contain legally
binding requirements. This document is not a substitute for those provisions or regulations, nor
is it a regulation itself.  Thus, it does not impose legally binding requirements on EPA, DOT,
states, or the regulated community, and may not apply to a particular situation based upon the
circumstances.  EPA retains the discretion to adopt approaches on a case-by-case basis that may
differ from this guidance, but still comply with the statute and conformity and other regulations.
This guidance may be revised periodically without public notice.
1.4    What is a multi-jurisdictional area?

A multi-jurisdictional area is a nonattainment or maintenance area with several agencies (e.g.,
MPOs, state agencies) that conduct transportation and/or air quality planning. Multi-
jurisdictional areas are nonattainment and maintenance areas that:
     Have multiple MPOs, or
     Have one or more MPOs and a donut area, and/or
     Are located in more than one state.

One MPO that covers more than one nonattainment or maintenance area would also be
considered a multi-jurisdictional area.  The MPO is the agency that is responsible for preparing
metropolitan transportation plans (hereafter called "transportation plans") and TIPs and
demonstrating that transportation plans and TIPs conform to the purpose  of the SIP before they
are adopted. An MPO is established for each metropolitan area according to Section 134 of Title
23, United States Code and Section 5303 of Title 49, United States Code. The conformity rule at
40 CFR 93.101  includes the following definition of an MPO:

             ".. .the policy board of an organization created as a result of the
             designation process in 23 U.S.C. 134(d)."

MPO planning boundaries are established according to Titles 23 and 49 of the United States
Code (as cited above) and DOT's metropolitan planning regulations.  The conformity rule does
not dictate how MPO planning boundaries are established.

In most cases, a conformity determination for a transportation plan, TIP,  or project not from a
conforming transportation plan or TIP  includes a regional emissions analysis in which emissions
from the planned transportation system are estimated according to 40 CFR 93.122.

Whether a nonattainment or maintenance area contains more than one MPO, a donut area, and/
or is located within more than one state, the conformity regulation process includes flexibility to
accommodate the many differences in  state and local agency roles and planning processes across
the country.

Sections 1.4.1 through 1.4.5 describe different situations of nonattainment/maintenance area
boundaries, MPO boundaries, and state boundaries.

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1.4.1   One MPO, One State (not a multi-jurisdictional area)

To contrast the remainder of this guidance, first it is useful to describe a conformity
determination in the case where there is a single jurisdiction responsible for transportation
planning and a single jurisdiction responsible for air quality planning.  In the simplest case, a
nonattainment or maintenance area is located entirely within one state, and the boundary of the
nonattainment or maintenance area is exactly the same as the MPO boundary, as shown in Figure
1.1 below.
    Figure 1.1: A Nonattainment or Maintenance Area with One
       MPO in a Single State (not a multi-jurisdictional area)
                             MPO boundary
                             - Area boundary
Area Boundary
State Boundary
MPO Boundary
This is not a multi-jurisdictional area. In this situation, there is just one MPO responsible for
transportation planning and conformity determinations in the area and one air quality agency
responsible for air quality planning.  There is no donut area within the nonattainment or
maintenance area and the area is located in just one state.
1.4.2  More than One MPO
The MPO boundary may not correspond to the nonattainment or maintenance area boundary, nor
is a nonattainment or maintenance area always covered by a single MPO. In these cases, there
may be more than one MPO responsible for transportation planning and conformity
determinations in the nonattainment or maintenance area, as shown in Figure 1.2 below.

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   Figure 1.2: A IMonattainment or Maintenance Area with Two
                      MPOs, in a Single State
                                                           Ares Boundary
                                                           State Boundary
                                                           MPO Boundary
1.4.3  Donut Areas

There may be other cases where some portion of the nonattainment or maintenance area is not
included in an MPO's jurisdiction, also known as a "donut area." As defined in 40 CFR 93.101:

             "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."

If the nonattainment or maintenance area includes an MPO, any areas outside of the MPO(s)
boundaries would be the donut area(s). Though the word "donut" implies that the boundary of
the MPO would be entirely within the nonattainment or maintenance area boundary to form two
concentric circles, a nonattainment or maintenance area's donut area may more typically
resemble that shown in Figure 1.3 below. Donut areas could exist as part of a single state or
multi-state nonattainment or maintenance area.
 Figure 1.3: A Nonattainment or Maintenance Area with a Donut
                       Area, in a Single State
                                                           Area Boundary
                                                           State Boundary
                                                           MPO Boundary
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1.4.4  Multi-State Areas

There are also cases where a nonattainment or maintenance area's boundary includes parts of
more than one state, as shown in Figures 1.4a and 1.4b below. One MPO may cover the entire
multi-state nonattainment or maintenance area (Figure 1.4a), or separate MPOs may cover each
state's portion of the area (Figure 1.4b).  These multi-state areas may also include donut areas in
one or more states.
 Figure 1,4a: A Multi-state Nonattainment or Maintenance Area
                          with One MPO
                                                          Area Boundary
                                                          State Boundary
                                                          MPO Boundary
 Figure lAb: A Multi-state Nonattainment or Maintenance Area
                       with Multiple MPOs
                                                      Area Boundary
                                                      State Boundary
                                                      MPO Boundary
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1.4.5   One MPO that Covers More Than One Nonattainment or Maintenance Area

Finally, there are some MPOs that are responsible for transportation planning and conformity
determinations in more than one nonattainment or maintenance area. This guidance applies to
such MPOs as well. The November 24, 1993 conformity rule preamble addresses the case where
an MPO is responsible for more than one area, which continues to apply:

             "If a metropolitan planning area includes more than one
             nonattainment area, a conformity determination must be made for
             each nonattainment area. Emissions budgets established in the
             SIP(s) for the included nonattainment areas may not be combined
             or reallocated. Build/no-build tests must be applied separately in
             each nonattainment area" (58 FR 62208).

In these cases, a single MPO that is responsible for transportation planning for more than one
nonattainment or maintenance area must determine conformity for each nonattainment or
maintenance area separately.

As an example, suppose an MPO encompasses two counties, as illustrated in Figure 1.5. One of
these counties is located in one PM2.5 nonattainment area (Area A), while the other county is
located in another, adjacent PM2.5 nonattainment area (Area B).
  Figure 1.5:  An MPO that Covers More than One Nonattainment
                 or Maintenance Area in One State
         /yfea A
Area Boundary
Stste Boundary
MPO Boundary
Sections 2 through 4 of this guidance include details for how conformity would be determined
for the portion of such an MPO's transportation plan and TIP for each nonattainment or
maintenance area.
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1.5    What are the general requirements for interagency consultation when
       determining conformity for a transportation plan/TIP?

Interagency consultation is required in all nonattainment and maintenance areas where
conformity applies.  Interagency consultation procedures for a nonattainment or maintenance
area are formally integrated into the conformity SIP and are legally enforceable.3  A state's
conformity SIP, or the federal regulations at 40 CFR 93.105 govern the decision-making process
and specifically require that a process be established to evaluate and choose a model, associated
methods, and assumptions to be used in the regional emissions analysis.

Interagency consultation ensures that agencies involved in the conformity process meet
regularly, share information, and identify key issues early in the conformity process.
Additionally, the process ensures that schedules are coordinated for transportation plan/TIP
conformity determinations  and  SIP development.

The agencies responsible for the conformity determination and regional emissions analysis in
multi-jurisdictional nonattainment and maintenance areas must develop interagency consultation
procedures to address certain decisions such as:
      The timing of individual transportation plan and TIP conformity determinations in those
       circumstances where they need to be coordinated;
      The analysis years that will be examined in the regional emissions analysis;
      The agency that will analyze emissions  for any donut area that is part of the
       nonattainment or maintenance area (see Section  1.6 for more information);
      The emissions model to be used for the  regional  emissions analysis, in the case where
       there is more than one emissions model that could be used (e.g., during a new model
       grace period), per 40 CFR 93.111;
      The planning assumptions to be used in the regional emissions analysis and the sources of
       that information.

Per 40 CFR 93.105(b)(l), state  air agencies must use the interagency consultation process in
developing SIP budgets, including establishing subarea budgets for MPOs or individual state
budgets in multi-jurisdictional areas.
1.6    Who is responsible for estimating emissions in a donut area of a
       nonattainment or maintenance area?

In a nonattainment or maintenance area with a donut area, the lead agency for developing the
regional emissions analysis that applies to the donut area can be:

      The MPO within the nonattainment or maintenance area. In some cases, an adjacent
       MPO is best suited to conduct such an analysis.  An MPO could run a separate analysis
3 For additional information on conformity SIPs, please refer to the January 2009 guidance entitled, "Guidance for
Developing Transportation Conformity State Implementation Plans" available onEPA's website at
www.epa.gov/otaq/stateresources/transconf/policy/420b09001 .pdf.

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       for the donut area's projects and add the emissions to the MPO's analysis.  The MPO
       could also include the donut area's projects in its regional model and estimate emissions
       for the entire area. An MPO could also include the donut area's projects in its
       transportation plan and TIP, but this practice is not common;

      The state DOT.  In some cases, the state DOT may take the lead in estimating emissions
       for the donut area and provide the results to the MPO; or

      Another local planning agency. In limited cases, another local planning agency in the
       donut area (e.g., a county planning commission) may also be the lead agency for the
       donut area.

The conformity rule at 40 CFR 93.105(c)(3) relies on the interagency consultation process
(including the MPO and state DOT) to determine how best to consider projects that are planned
for donut areas located outside the metropolitan area and within the nonattainment or
maintenance area in the conformity process. Section 93.105 of the conformity rule also requires
that such procedures for demonstrating conformity of donut area projects be included in an area's
conformity SIP that is approved by EPA, according to 40 CFR 51.390.
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Section 2:  Conformity Determinations and Regional Emissions
Analyses in Areas without Any Budgets

2.1   To what areas does this section of the guidance apply?

Section 2 of this guidance applies to areas that are determining conformity for a NAAQS but do
not yet have any budgets for that pollutant.

This section of the guidance does not cover:
     Areas that have a budget for the NAAQS for which they are designated nonattainment
      (the relevant NAAQS);
     Areas that have a budget for another NAAQS of the same pollutant;
     Maintenance areas, as these areas by definition have approved SIPs with budgets, in most
      cases.
2.2   What tests are used for the regional emissions analysis before a
      nonattainment area has budgets for a relevant pollutant?

Conformity applies for a NAAQS one year after the effective date of EPA's nonattainment
designation for that NAAQS typically before an area is able to submit a SIP for the NAAQS
containing budgets and those budgets are found adequate.  If an area does not have an adequate
or approved budget(s) for the relevant NAAQS or another NAAQS of the same pollutant, the
regional emissions analysis and conformity determination must be based on the interim
emissions test(s) (40 CFR 93.109(c)(3)). The interim emissions tests, described in 40 CFR
93.119, include different forms of the "build/no-build" test and "baseline year" test.

In general, the regional emissions analysis using the build/no-build test compares emissions from
the planned (or "build") transportation system in an analysis year with emissions from the
existing (or "no-build") transportation system in the same analysis year.  In the baseline year test,
emissions from the planned transportation system in an analysis year are compared to emissions
that occurred in the relevant baseline year.
2.3   What geographic area must be examined in regional emissions analyses
      and conformity determinations before a nonattainment area has
      budgets?

A conformity determination for a transportation plan, TIP, or project not from a conforming plan
or TIP must be based on a regional emissions analysis that covers the entire nonattainment area,
to satisfy the statute and regulations (40 CFR 93.122(a)(l)).
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There must be a regional emissions analysis for the entire nonattainment area, whether the
nonattainment area includes one MPO or more than one MPO, a donut area, portions of more
than one state, or any combination of these jurisdictions.

For all nonattainment areas covered by this section, the MPO(s) must complete their
transportation plan/IIP conformity determinations for the entire nonattainment area and
coordinate their conformity determinations, pursuant to 40 CFR 93.124(d).  Specifically, 40 CFR
93.124(d) states:

             "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."

Once DOT receives all transportation plan/TIP conformity determinations for MPOs in a given
nonattainment area, DOT will make its conformity determinations at the same time.  In order for
one MPO to update or revise its transportation plan and TIP, a DOT conformity determination
for each transportation plan and TIP in that nonattainment area must be made at the same time,
according to 40 CFR 93.124(d).  See Section 2.4.3 on coordinating transportation plan and TIP
update cycles among MPOs. Therefore, in cases where no budgets exist, the MPOs would not be
making conformity determinations for transportation plans and TIPs on independent schedules,
but on the  same schedule.

EPA believes that it is necessary for conformity determinations and regional emissions analyses
to include the entire nonattainment area when there are no budgets to ensure that the
requirements of CAA section 176(c)(l) are met.  That is, before budgets become available, in
order to determine that transportation activities will not cause a new air quality violation,
increase the frequency or severity of a violation, or delay timely attainment of the relevant
NAAQS and interim milestones, it is necessary to consider emissions from the entire area in one
regional emissions  analysis, and for DOT to make all transportation plan/TIP conformity
determinations at the same time.
2.4    How can multiple agencies create a regional emissions analysis for the
       entire nonattainment area?

The agencies involved in the conformity process in a nonattainment area where there is more
than one MPO and/or a donut area must use the interagency consultation process required by 40
CFR 93.105 to decide how best to meet this requirement, regardless of whether the area is within
one state or is a multi-state area. The interagency consultation process would be used to decide
which interim emissions tests apply and what analysis years are used.  MPOs must use the same
tests and analysis years for the entire nonattainment area, as described in Section 2.5 of this
guidance.
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2.4.1  More Than One MPO, in One or More States (without a Donut Area)

In a nonattainment area where there is more than one MPO, the MPOs can develop the regional
emissions analysis using either of the below options:

       Option 1:     By separate modeling by each MPO that is combined into one regional
                    emissions analysis for the entire nonattainment area
       Option 2:     By one modeling analysis for the entire nonattainment area

If MPOs in the nonattainment area want to model their emissions separately (Option 1), each
MPO would perform a regional emissions analysis that would show that the applicable interim
emissions test(s) are met for each analysis year under the regulations. These results would then
be compiled in one regional emissions analysis for the entire nonattainment area that would
accompany each transportation plan/TIP conformity determination. The MPOs in the
nonattainment area can work independently to complete the regional emissions analysis for their
own parts of the area, but a single analysis would be combined for the entire nonattainment area
to satisfy conformity requirements for each MPO's transportation plan/TIP.

Alternatively, the regional emissions analysis could be completed by showing that the emissions
in each analysis year for the entire nonattainment area meet the applicable interim emissions
test(s) (Option 2).  The MPOs in the area would work together to carry out a regional emissions
analysis for the entire nonattainment area that includes all of their transportation plans and TIPs.
Again, these modeling results would be presented in one regional emissions analysis for the
entire nonattainment area that would accompany each transportation plan/TIP conformity
determination.

For example, suppose there are multiple MPOs within a nonattainment area and they are
demonstrating conformity using the build/no-build test.  If each MPO has its own travel demand
model and prefers to run its own analysis, all MPOs must choose the same analysis years. The
analysis must show either that each MPO passes its own build/no-build test; or the "build"
scenarios and the "no-build" scenarios from each MPO must be aggregated, and the total "build"
emissions from all MPOs must be less than the total "no-build" emissions from all MPOs.
Alternatively, the MPOs could coordinate in creating one regional emissions analysis for the
entire nonattainment area that meets the build/no-build test.
2.4.2   One or More MPOs and a Donut Area

If there is only one MPO in the nonattainment area conducting conformity determinations and a
donut area exists, the conformity rule requires the MPO to include the emissions estimated from
the donut area in the regional emissions analysis for the MPO's transportation plan and TIP
conformity determinations. However, either the MPO or the state DOT could estimate emissions
from the donut area as decided through interagency consultation. See below for details.

If there is more than one MPO as well as a donut area in a nonattainment area, the MPOs must
work together and with the state DOT, as appropriate, to create one regional emissions analysis

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for the entire nonattainment area that would accompany each transportation plan/TIP conformity
determination. The emissions estimated from the entire area must meet the interim emissions
test or tests, according to the requirements of 40 CFR 93.119.  Again, the interagency
consultation process would be used to coordinate the choice of tests (as applicable) and analysis
years when several agencies are completing emissions analyses, because the same tests and
analysis years must be used as noted above.

If a project-level conformity determination is required for a new project in a donut area, the
project would first need to be included in the associated MPO's transportation plan and TIP's
conformity determination (including the regional emissions analysis) before the project-level
conformity determination can proceed. There must be a currently conforming transportation
plan and TIP at the time of project approval,4 and for each MPO,  only one transportation plan or
TIP conformity determination (including the regional emissions analysis) may exist at any time
(40 CFR 93.114). See Section 3.7 for when a donut area can operate independently from an
adjacent MPO(s) for project approvals.

Note that in the preamble to the November 24, 1993 final rule (58 FR 62207-62208), EPA
described another option that EPA no longer believes is viable, and therefore, this option is not
included in this guidance.  The option was described in the preamble to the 1993 rule as follows:
a new regional emissions analysis (separate from that completed for the MPO's transportation
plan and TIP) could be completed that hypothetically assumed a new donut area project would
be added to the transportation plan and TIP, and the combination  of emissions would be tested to
see if it would satisfy all the conformity criteria for transportation plans and TIPs. EPA
indicated in the preamble to the 1993 rule that this  approach was not preferred, and that it would
be better to include the project in the regional emissions analysis. Since the 1993 rule, this
option has not been used, and as a result MPO transportation plan and TIP conformity
determinations have been able to meet 40 CFR 93.114. The hypothetical analysis approach
described in the 1993 rule preamble would effectively lead to having two separate regional
emissions analyses for the same transportation plan and TIP - a hypothetical one that includes
the donut project and an actual one that does not comply with this requirement of the conformity
rule.  This clarification in today's guidance on this  option continues to implement the conformity
rule consistent with past practice.
2.4.3   Coordinating Transportation Plan and TIP Update and Amendment Cycles among MPOs

All MPOs must use the same test and the same analysis years for the regional emissions analysis
regardless of whether each MPO creates an analysis for its geographic area which is then
aggregated, or the MPOs coordinate to create one analysis. MPOs in the same nonattainment
area may want to coordinate their transportation plan and TIP update cycles as well as the
timeframe of the conformity determination, as described below:

       Updated transportation plans and TIPs or amendments that include non-exempt projects,
       require a new conformity determination and may require a new regional emissions
4 Except during the lapse grace period, when a project can come from the most recent conforming transportation
plan and TIP (or regional emissions analysis). Refer to Section 3.6.2.

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       analysis (see 40 CFR 93.104 and 93.122(g)). When one of the MPOs in the area wants to
       update its transportation plan or TIP or make an amendment that includes one or more
       non-exempt projects, the other MPOs can rely on their portion of a previous regional
       emissions analysis for the conformity determination provided that they meet the criteria
       in 40 CFR 93.122(g).5  Coordination of transportation plan and TIP update and
       amendment cycles among MPOs in the same nonattainment area may minimize the
       number of new regional emissions analyses and conformity determinations that have to
       be completed.

      Where one of the MPOs in the multi-jurisdictional area wants to update its transportation
       plan and TIP or make an amendment that includes one or more non-exempt projects, the
       public involvement requirements of 40 CFR 93.105(e) of the conformity rule would
       apply for all MPOs, including a public comment period on all MPO transportation
       plan/TIP conformity determinations. However, the requirements under DOT's
       transportation planning requirements (23 CFR 450.316(b)) would not apply in this
       situation (including the requirement to hold a public hearing) for any MPOs that are not
       updating or amending their transportation plans or TIPs.

      MPOs may have to analyze additional  years if the timeframes of their conformity
       determinations differ.  According to 40 CFR 93.119(g), an analysis must be performed
       for the last year of the timeframe of the conformity determination  (generally, the last year
       of the transportation plan's forecast period).6 For example, if one MPO's transportation
       plan forecast period ends in 2035  and another MPO's transportation plan forecast period
       ends in 2040, both years would have to be analyzed in the regional emissions analysis for
       the entire nonattainment area.  Coordination of transportation plan forecast periods may
       minimize the number of analysis years that have to be examined in any one regional
       emissions analysis.
2.5    What decisions must be made in the interagency consultation process?

The agencies responsible for the conformity determination and regional emissions analysis in a
nonattainment area, which are the MPOs and possibly the state DOT(s) for a donut area in a
nonattainment area, must use the interagency consultation process to make certain decisions.  Per
the conformity rule, there are certain aspects of conformity that must be consistent across the
nonattainment area, even when there are more than one MPO and they each model their own
portion separately, as described earlier in the guidance. Aspects that must be consistent include:

      Timing of individual plan and TIP conformity determinations, so that DOT can make its
       conformity determinations for all transportation plans and TIPs in a nonattainment area at
       the same time:
5 This provision allows a conformity determination to be made without a new regional emissions analysis if the
previous regional emissions analysis still applies. Please refer to the conformity regulation for more information.
6 The timeframe of a conformity determination could be shortened per 40 CFR 93.106(d).

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       How the regional emissions analysis is developed, e.g., whether emissions will be
       modeled for each MPO's jurisdiction separately and summed together, or modeled for the
       nonattainment area as a whole;7

       The interim emissions test that will be used in nonattainment areas that have a choice of
       interim emissions test.

       EPA believes that for consistency and in order to satisfy the requirements of the
       conformity rule, the same test must be used in all portions of the nonattainment area in
       areas that have the choice of interim emissions tests for a given conformity
       determination.  In other words, it would not be acceptable for one MPO to use the
       build/no-build test and another MPO within the same nonattainment area to use the
       baseline year test, because 40  CFR 93.119 and 93.124(d) require that one test be met for
       the entire nonattainment area where only one test is required.

       The same test would be required to be used for each analysis year for a given conformity
       determination as well.  EPA believes that sufficient flexibility exists without using
       different interim emissions tests for different analysis years within one conformity
       determination, which is unnecessarily complicated and may indicate that an area would
       not conform using one test consistently.

       The analysis years that will be used for the interim emissions test(s), as required by 40
       CFR93.119(g).

       Again, EPA believes that analysis years must be consistent in all portions of the
       nonattainment area, even if emissions are modeled for each MPO's jurisdiction
       separately; otherwise, they cannot be summed together to produce a complete analysis to
       satisfy the test. Regional emissions analyses for all MPOs must cover the same time
       period and thus need to include the last year of each transportation plan or conformity
       determination as an analysis year.

       For example, if the last year of one MPO's transportation plan is 2035  and the last year  of
       another MPO's transportation plan  is 2040, the regional emissions analyses for both
       MPOs must examine emissions in the years 2035 and 2040.9

       Who will analyze emissions for any donut area that is part of the nonattainment area? As
       mentioned above, any of the MPOs, the state DOT, or a local planning agency could
7 Please note that there may be different travel activity models and methods used among MPOs and/or donut areas in
a multi-jurisdictional area.  Such differences between jurisdictions are acceptable as long as each MPO/donut area is
using the latest models and methods available and 40 CFR 93.122 requirements are met.
8 Areas that have a choice of interim emissions tests include:  Marginal and below ozone nonattainment areas and
other ozone nonattainment  areas that are not subject to reasonable further progress requirements of CAA section
182(b)(l), moderate CO areas with a design value less than 12.7 ppm, PM2 5 areas, PM10 areas and NO2 areas.  In
ozone areas classified moderate or higher, serious CO, and moderate CO areas with a design value greater than 12.7
ppm, both interim emissions tests must be met under 40 CFR 93.119.

9 Assuming neither has elected to shorten the timeframe of the conformity determination (40 CFR 93.106(d)).

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       estimate emissions from the donut area as decided through interagency consultation.  See
       Section 1.6 for details.

      The emissions model to be used for the interim emissions test(s), in the case where there
       is more than one emissions model that could be used (e.g., during a new model grace
       period) (40 CFR 93.111).

In addition, the MPOs involved in the conformity determination(s) for the nonattainment area
should discuss the planning assumptions they will use in the regional emissions analysis and the
sources of that information. The conformity regulation at 40 CFR 93.105(c)(l)(i) specifically
requires that planning assumptions be discussed in the interagency consultation process. Where
feasible and appropriate, MPOs (and where applicable, state DOTs) should use consistent
planning assumptions for the regional emissions analysis in their jurisdictions.
2.6    If one MPO in the area can meet the requirements of 40 CFR 93.119,
       but another MPO or a donut area cannot, can the MPO that meets the
       requirements show that its transportation plan and TIP conform and
       proceed?

No. Before a multi-jurisdictional nonattainment area has budgets, conformity must be
demonstrated for the nonattainment area as a whole in order to meet CAA section 176(c)(l)
requirements that transportation activities will not:
      cause or contribute to a new air quality violation(s);
      increase the frequency or severity of any existing violation of any standard in any area; or
      delay timely attainment of the NAAQS or any required interim milestones.

It is necessary to estimate emissions from the entire nonattainment area in all transportation
plan/TIP conformity determinations and the supporting regional emissions analysis because
separate budgets are not available.  For example, in Figure 2.1 below, there are two MPOs:  West
MPO and East MPO.

  Figure  2.1: A Nonattainment or Maintenance Area with  Two MPOs
                                              Area Boundary


                                              MPO Boundary
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If they choose to model their emissions separately and West MPO appears to pass the applicable
test(s) of 40 CFR 93.119 but East MPO does not, West MPO cannot proceed to determine
conformity alone. Since East MPO does not pass the test, it is not known for certain that West
MPO's transportation plan and TIP will not cause a new violation, worsen an existing violation,
or delay timely attainment in the nonattainment area.  Therefore, the nonattainment area as a
whole in this example, cannot demonstrate that transportation activities will not worsen air
quality or will not delay timely attainment.

To resolve this situation, East and West MPOs would consult on what options are available for
demonstrating conformity, including the option to add or model their emissions together to see if
they pass the applicable regional emissions test(s).
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Section 3: Conformity Determinations and Regional Emissions
Analyses with SIP Budgets for the Relevant NAAQS

General

3.1    What does this section of the guidance cover?

Section 3 of this guidance applies to areas designated nonattainment or maintenance for a
NAAQS that have an adequate or approved budget for that NAAQS (the relevant NAAQS).
3.2   How do nonattainment and maintenance areas determine conformity
      for a given NAAQS once budgets are available for that NAAQS?

CAA section 176(c)(l) states that federal activities must conform to the SIP. Once a SIP with
budgets has been submitted and EPA finds those budgets adequate or approves the SIP, the
budget test using these budgets must be used for conformity according to 40 CFR 93.109(c)(l)
and 93.118. For example, once a 2006 PM2.5 NAAQS area has budgets for the 2006 PM2.5
NAAQS, it would use those budgets for the budget test as the regional test of conformity for the
2006 PM2.5 NAAQS.

EPA's adequacy finding or approval means that the SIP's budgets are an appropriate measure for
whether transportation activities conform due to many factors, including:
     The budgets are  identified and precisely quantified;
     The budgets are  consistent with the SIP's purpose of reasonable further progress (RFP),
      attainment, or maintenance of a NAAQS; and
     The budgets are  consistent with and clearly related to the emissions inventory and the
      control measures in the SIP.10

For a listing of SIP submissions with budgets that are currently under EPA adequacy review or
that EPA has found adequate or inadequate for conformity purposes, please visit the EPA's
website at: www.epa.gov/otaq/stateresources/transconf/adequacy.htm.
10 There are other criteria that budgets must meet for EPA to find them adequate; for the full list of adequacy criteria,
see40CFR93.118(e)(4).

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3.3    What geographic areas might budgets from a SIP cover, and how is
       conformity generally determined in multi-jurisdictional areas with
       budgets?

State and local agencies can develop SIPs in many different ways. In a multi-jurisdictional
nonattainment or maintenance area located entirely within one state, the state air agency may
develop a SIP that establishes either:

      Budgets that cover the entire nonattainment or maintenance area, or
      Subarea budgets that cover each MPO or county (or donut area) within the nonattainment
       or maintenance area.

In a multi-state nonattainment or maintenance area, the state air agencies may decide to establish
SIPs that contain either:

      Identical budgets that cover the entire nonattainment or maintenance area, or
      Unique budgets that cover only each state's portion of the nonattainment or maintenance
       area.

The conformity rule at 40 CFR 93.124(d) describes how conformity requirements are met in
multi-jurisdictional areas:

             "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 area."

Once budgets have been found adequate or the SIP containing budgets is approved, the
conformity determination(s) and regional emissions analysis are done for the geographic area
that is addressed by the budgets in the SIP.  This general principle applies  in all  situations,
although there is flexibility for developing the regional emissions analysis and coordinating
conformity determinations, when several MPOs are involved.  Table 3.1 summarizes the general
situations.
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    Summary Table 3.1:  How SIPs Affect Geographic Areas Considered in
                           Transportation Conformity
For a nonattainment
or maintenance area
located:
Within one state
Within one state
In multiple states
In multiple states
Where SIP budgets
are established for:
The entire area
Sub areas
The entire area
Each state
The geographic area
considered in
regional emissions
analyses is:
The entire area*
Each sub area
The entire area*
Each state
The geographic area
considered in final
conformity
deter mination(s) is:
The entire area**
Each sub area
The entire area**
Each state
*  There is flexibility in how the regional emissions analysis is conducted when there is more
than one MPO. See Section 3.4 for details.

** There may be more than one transportation plan/TIP conformity determination in a
nonattainment or maintenance area because there may be more than one MPO making
conformity determinations for separate transportation plans and TIPs. There is flexibility in how
these conformity determinations are coordinated.  See Section 3.4 for details.

The questions and answers that follow in this section provide further detail on the different
circumstances that can occur.
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Nonattainment or Maintenance Areas Located in One State, Where Budgets
Are Established for the Entire Area
3.4   How is conformity demonstrated when budgets are established for an
      entire nonattainment or maintenance area that is within one state?

This section explains how conformity is demonstrated in a nonattainment or maintenance area
that is located in a single state, where the SIP establishes one budget for the entire area and there
is more than one MPO responsible for transportation planning in the area and/or there is a donut
area.
3.4.1  More than One MPO

When budgets are established for the nonattainment or maintenance area as a whole, and there is
more than one MPO, the MPOs would complete their respective transportation plan/TIP
conformity determinations and submit them to DOT, as explained below. Once all conformity
determinations for a given area are received, DOT would make its conformity determinations at
the same time. The MPOs must collectively develop a regional emissions analysis for the entire
area that meets the requirements of 40 CFR 93.118 and 93.122 that would accompany all
transportation plan/TIP conformity determinations. For example, all MPOs would have to use
the same analysis years for the regional emissions analysis. Each MPO would show conformity
of its transportation plan and TIP using the regional emissions analysis done for the entire area.

The MPOs can develop the regional emissions analysis for the area in either one of two ways:

   1.  Each MPO can model emissions for its geographic part of the nonattainment or
      maintenance area separately. For each analysis year, the emissions estimated by each
      MPO would be summed together and compared to the area's  applicable budgets. The
      MPOs must all use the same analysis years when completing the budget test, in
      accordance with 40 CFR 93.118.
   2.  The MPOs could also work together to model the entire nonattainment or maintenance
      area as a whole at the same time. In this case, 40 CFR 93.118 requirements would be met
      if estimated emissions in each analysis year are less than or equal to the area's applicable
      budgets.
3.4.2   One or More MPOs and a Donut Area

If there is one MPO in the nonattainment or maintenance area conducting a conformity
determination, the MPO must include the emissions estimated from the donut area's existing and
proposed transportation system in the regional emissions analysis for the transportation plan and
TIP conformity determinations (40 CFR 93.118(d)). However, either the MPO or the state DOT
could estimate emissions from the donut area as decided through interagency consultation. See
Section 1.6 for details.

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If there is more than one MPO as well as a donut area in a nonattainment or maintenance area,
the MPOs must work together and with the state DOT or other donut area agency as appropriate
to create one regional emissions analysis for the entire area that would accompany all
transportation plan/TIP conformity determinations (40 CFR 93.124(d)). The regional emissions
analysis would include estimated emissions associated with the transportation plan and TIP as
well as emissions associated with the donut area(s), if any. The emissions estimated from the
entire area must be less than or equal to the budget(s) established for the entire area (40 CFR
93.118).  The interagency consultation process would be used to coordinate the analysis years
when several agencies are completing regional emissions analyses, because the same analysis
years must be used.

If a project-level conformity determination is required for a new project in a donut area, the
project would first need to be included in the associated MPO's transportation plan and TIP's
conformity determination (including the regional emissions analysis) before the project-level
conformity determination can proceed. For each MPO, there must be a currently conforming
transportation plan and TIP that meet the MPO's subarea budgets at the time of any project
approval,11 and for each MPO, only one conforming transportation plan or TIP (and regional
emissions analysis) may exist at any time (40 CFR 93.114).12  See Section 3.7 for when a donut
area can operate independently from an adjacent MPO(s) for project approvals.
3.4.3  Coordinating Transportation Plan and TIP Update and Amendment Cycles among MPOs

When budgets are established for the entire area and where one MPO updates or amends its
transportation plan and TIP with a non-exempt project, a DOT conformity determination must be
made at the same time for all MPO transportation plans and TIPs in that nonattainment or
maintenance area. This is the case even though the other MPOs in the area may not be updating
or amending their respective transportation plans or TIPs (40 CFR 93.124(d)). Therefore, MPOs
in this situation may want to coordinate their transportation plan and TIP update cycles and the
timeframe of their transportation plans:

      Updated transportation plans and TIPs or amendments that include non-exempt projects
       require a new conformity determination and may require a new regional emissions
       analysis (see 40 CFR 93.104 and 93.122(g)). Where one of the MPOs in the area wants
       to update its transportation plan or TIP or make an amendment that includes one or more
       non-exempt projects, the other MPOs can rely on their portion of a previous regional
       emissions analysis for the conformity determination provided that they meet the criteria
       in 40 CFR 93.122(g).13  Coordination of transportation plan and TIP update and
11 Except during the lapse grace period, where a project could come from the most recent conforming transportation
plan and TIP (or regional emissions analysis). Refer to Section 3.6.2.
12 As described in Section 2.4.2, EPA believes that there are no other options available before donut area projects
can proceed in cases where an MPO's transportation plan and TIP conformity determination and regional emissions
analysis covers a donut area. Separate regional emissions analyses for donut areas would be inconsistent with 40
CFR 93.114.
13 This provision allows a conformity determination to be made without a new regional emissions analysis if the
previous regional emissions analysis still applies. Please refer to 40 CFR 93.122(g) for more information.

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       amendment cycles among MPOs in the same nonattainment or maintenance area may
       minimize the number of new regional emissions analyses and conformity determinations
       that have to be completed.

      Where one of the MPOs in the multi-jurisdictional area wants to update its transportation
       plan and TIP or make an amendment that includes one or more non-exempt projects, the
       public involvement requirements of 40 CFR 93.105(e) of the conformity rule would
       apply for all MPOs, including a public comment period on all MPO transportation
       plan/TIP conformity determinations. However, the requirements under DOT's
       transportation planning requirements (23 CFR 450.316(b)) would not apply in this
       situation (including the requirement to hold a public hearing) for any MPOs that are not
       updating or amending their transportation plans and TIPs.

      MPOs may have to analyze additional years if the timeframes of their conformity
       determinations differ.  According to 40 CFR 93.118(d)(2), an analysis must be performed
       for the last year of the timeframe of the conformity determination (generally, the last year
       of the transportation plan's forecast period). 14 For example, in a nonattainment area in
       which one MPO's transportation plan ends in 2035 and another MPO's transportation
       plan ends in 2040, both years would have to be analyzed in the regional emissions
       analysis for the entire nonattainment area.  Coordination of the transportation plan
       lengths or timeframe for the conformity determinations may minimize the number of
       analysis years that have to be examined in any one regional emissions analysis.
Nonattainment or Maintenance Areas Located in One State, Where the SIP
Establishes Subarea Budgets


3.5    How is conformity demonstrated when there is more than one MPO in a
       single state and the SIP establishes subarea budgets for each MPO?

When subarea budgets are created for each MPO,  the sum of the subarea budgets equals the total
amount of emissions the area can have from the on-road mobile source sector and still meet the
CAA purpose of the SIP for reasonable further progress, attainment, or maintenance. Therefore,
if each MPO meets its subarea budget(s) for a pollutant and NAAQS in accordance with 40 CFR
93.118, then the entire area meets the SIP's purpose for that pollutant and NAAQS. As EPA
noted in the January 11,  1993 conformity proposal:

             "subarea budgets provide additional assurance that through future
             conformity determinations transportation plans and TIPs will
             produce emission patterns that will achieve attainment." (58 FR
             3780)
14 The timeframe of a conformity determination could be shortened per 40 CFR93.106(d).

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When the SIP for an area establishes subarea budgets for conformity purposes, these subarea
budgets must be met for transportation plans and TIPs in the area to conform, as required by 40
CFR93.124(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."

The MPOs can make independent conformity determinations for their transportation plans and
TIPs as long as all of the other subareas in the nonattainment or maintenance area have
conforming transportation plans and TIPs in place at the time of each MPO's and DOT's
conformity determination.  The preamble to the November 24, 1993 conformity final rule
explains this as follows:

              "The SIP may specify emissions budgets for subareas of the
              region, provided that the SIP includes a  demonstration that the
              subregional emissions budget, when combined with all other
              portions of the emissions inventory, will result in attainment and/or
              maintenance of the standard. The conformity determination must
              demonstrate consistency with each subregional emissions budget
              in the SIP" (58 FR 62196).

Thus, when any subarea demonstrates conformity, all subareas within the nonattainment area
must have conforming transportation plans and TIPs.

For example, suppose the  subarea budgets in a SIP have been found adequate, and one of the
MPOs  for the nonattainment area needs to update its TIP.  That MPO can demonstrate
conformity using its subarea budgets without waiting for the other MPOs in the nonattainment
area to demonstrate conformity using their subarea budgets, as long as the other MPOs have
conforming transportation plans and TIPs in place, even if these transportation plans and TIPs
were previously found to conform using the interim emissions test(s).

The SIP must specifically state that it creates subarea budgets.  County-by-county emissions
projections in a SIP inventory are not subarea budgets unless they are specifically labeled as
such.  If county level emissions projections are included in a SIP but not explicitly defined as
subarea budgets for the purposes of conformity, the SIP is  considered to have budgets for the
entire area and MPOs must work together to have transportation plan/TIP conformity
determinations for the entire nonattainment or maintenance area approved by DOT at the same
time, as described in Sections 3.4, 3.9, 4.8, 4.11, 4.13 and 4.18.

If MPOs within one nonattainment or maintenance area would prefer to have subarea budgets,
they would need to communicate their preference to the state and local air agencies during the


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development of the SIP. The conformity rule at 40 CFR 93.105 requires interagency
consultation on the development of SIPs, as well as transportation plans, TIPs and conformity
determinations.
3.6    Can an MPO that has its own subarea budgets determine conformity of
       its transportation plan and/or TIP when another MPO in the same area
       is in a conformity lapse or conformity lapse grace period?

3.6.1   Conformity Lapse

CAA section 176(c) clearly states that conformity applies in nonattainment and maintenance
areas, rather than individual metropolitan planning areas. Section 176(c) also states that the
federal government and MPOs cannot approve transportation activities unless they conform to
the SIP and its budgets. Therefore, in a nonattainment or maintenance area with more than one
MPO, all MPOs must conform even if the SIP has established subarea budgets.

If an individual MPO's transportation plan lapses, it has not demonstrated that it can conform to
its subarea budget(s). Therefore, there is no way for the other MPOs in the same area to know
whether their transportation plans and TIPs are consistent with the SIP either. Using Figure 3.2
below as an example, if East MPO is in a conformity lapse, it cannot be assured that West
MPO's transportation activities will meet the purpose of the SIP, even if West MPO meets its
subarea budgets.

  Figure 3.2: A Nonattainment or Maintenance Area with Two MPOs, in a
                               Single State
                                                       Area Boundary
                                                       State Boundary
                                                       MPO Boundary
That is, it is unknown whether the total amount of emissions in the area from the planned
transportation sector would still meet the CAA requirements of the SIP,because East MPO
cannot meet its subarea budgets. When one subarea lapses, there is no way for the other MPO to
show that their planned transportation activities would conform to the SIP for the whole area
until the lapse is resolved.

If conformity lapses for one MPO's subarea, the other MPO(s) in the area can continue to
implement projects in their currently conforming transportation plans and TIPs, but they cannot
make new transportation plan and TIP conformity determinations until a conformity
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determination has been made for the subarea that is in a conformity lapse. In other words, if the
conformity status of one subarea lapses, the existing conforming transportation plan and TIPs in
other subareas continue to be valid, but they cannot adopt new transportation plans, TIPs, or
plan/TIP amendments that contain non-exempt projects.  Therefore, the MPOs should work to
resolve the lapse in one subarea before the other subareas need to make new transportation
plan/TIP conformity determinations.
3.6.2   Conformity Lapse Grace Period

CAA Section 176(c)(9) and 40 CFR 93.104(f) provide a 12-month grace period before a
conformity lapse occurs in certain situations. During the lapse grace period, a conformity lapse
has not yet occurred.  Therefore, if one MPO in a multi-MPO area with subarea budgets enters a
lapse grace period, the other MPOs that are not in the lapse grace period can proceed with
additional conformity determinations for their transportation plans, TIPs, and projects as long as
conformity requirements in those MPOs are met.

For the MPO that is in the conformity lapse grace period, project-level conformity
determinations can continue to be made. The regulation at 40 CFR 93.104(f) allows projects to
be found to conform during the lapse grace period as long as they were included in either the
currently conforming transportation plan and TIP (or regional emissions analysis) or the most
recent conforming transportation plan and TIP (or regional emissions analysis) and other project-
level conformity requirements are met. However, if an MPO's TIP has expired, that MPO could
not meet DOT's transportation planning requirements. See 73 FR 4423-4424 (January 24, 2008)
for additional details about the conformity  lapse grace period.

If an MPO in a multi-MPO area enters the  one-year conformity lapse grace period and does not
make a transportation plan and TIP conformity determination by the end of the one year,
conformity for that MPO would lapse, and all other MPOs would also be affected. Refer to
Section 3.6.1 above for information in this situation.
3.7    Can a subarea budget be established for a donut area?

Yes. While the subarea budget provisions of the conformity rule at 40 CFR 93.124(c) and (d)
specifically address MPOs, the conformity rule does not explicitly prohibit donut areas from
having subarea budgets.  Therefore, EPA has determined that subarea budgets may be
established for donut areas.

If this option is chosen, in addition to the MPO(s) determining conformity to their respective
transportation plans and TIPs every four years, the interagency consultation process must ensure
that conformity is demonstrated to any subarea budget for a donut area at least every four years
as well. In the event that an MPO or donut area cannot demonstrate conformity on a four-year
cycle, the other subareas may not complete a conformity determination until all subareas
conform. Note that donut areas are not isolated rural areas. Therefore, conformity for donut
areas must be determined according to the frequency requirements in 40 CFR 93.104.

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3.8   If a SIP establishes only subarea budgets, do MPOs have the option to
      use either an area-wide SIP budget or subarea budgets?

No, not unless the SIP establishes both an overall area budget and subarea budgets, and the SIP
specifically allows either the area-wide budget or subarea budgets to be used for conformity
purposes. Specifically, the SIP would need to explicitly state which budget or budgets the MPOs
would initially use and what must occur if the MPOs want to switch to the other type of
budget(s).  Further, the SIP must clearly explain this flexibility and provide a clear process for
implementing it.

MPOs will have to make the switch in a way that meets the conformity rule's requirements under
40CFR93.124. That is:

     If the MPOs want to switch to using the area-wide budget, the MPOs must all agree to do
      so and from that point forward, they must make conformity determinations collectively.

     If the MPOs want to switch to using subarea budgets, then they must all  agree, and they
      must all demonstrate conformity to their own subarea budgets at the same time. Once
      that occurs and DOT makes its conformity determination on all the MPO transportation
      plans and TIPs, the MPOs may act separately again.

For more information about establishing both area-wide and subarea budgets, please contact the
EPA regional office.  See Section 1.2 for contact information.
Multi-State Nonattainment or Maintenance Areas

3.9   How do multi-state nonattainment and maintenance areas determine
      conformity if each state submits a SIP that contains the same budgets
      for the entire multi-state area?

If a multi-state area has a SIP that contains budgets for the multi-state area as a whole, one
regional emissions analysis would be completed for the entire area using the budget test,
according to the requirements in 40 CFR 93.118.

     If just one MPO is involved as in Figure 3.3 below, it would complete the regional
      emissions analysis for the entire multi-state area and submit it to DOT with its
      transportation plan and TIP conformity determination.

     If more than one MPO is involved, the MPOs must collectively develop a regional
      emissions analysis for the entire area that meets the requirements of 40 CFR 93.118 and
      93.122 that would accompany all transportation plan and TIP conformity determinations.

Once all determinations for a given area are submitted, DOT would make  its conformity
determinations at the same time.  In the second case, all MPOs would have to use the same

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analysis years for the regional emissions analysis. Each MPO would show conformity of its
transportation plan and TIP using the regional emissions analysis done for the entire area.

For example, in Figure 3.3 below, suppose there is one budget for the multi-state area, but each
state has its own MPO.
  Figure 3.3:  A Multi-state Nonattainment or Maintenance Area
                          with One MPO
                                                            Area Boundary
                                                            State Boundary
                                                            MPO Boundary
In this case, one regional emissions analysis would be made for the entire area and the
conformity determinations for each MPO's transportation plan and TIP within the area would be
based on this regional emissions analysis. Any donut area emissions would also be included in
the regional emissions analysis for the area. DOT would not make its conformity determinations
for the transportation plans and TIPs until it receives the conformity determinations from all of
the MPOs in the area. This is similar to single state areas with SIP budgets that cover the entire
nonattainment or maintenance area. See Sections 3.4, 4.8, 4.11, 4.13, and 4.18 for further
information.
3.10   When would it be likely for state air agencies in a multi-state
       nonattainment or maintenance area to submit SIPs with budgets that
       apply to the entire area?

This option would most likely be chosen in areas where there is one MPO responsible for
transportation planning of the entire multi-state nonattainment or maintenance area.  However,
the option is available to any multi-state nonattainment or maintenance area.  In areas with more
than one MPO, additional coordination would be necessary for transportation plan and TIP
conformity determinations and the regional emissions analysis because they would need to cover
the entire nonattainment or maintenance area pursuant to 40 CFR 93.118 and 93.124(d).
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3.11   How is conformity determined for multi-state nonattainment or
       maintenance areas when each state has a SIP that contains budgets only
       for its own state's portion of the area?

States in a multi-state area have the option of submitting SIPs with budgets for just their own
portion of the area that, when taken together, meet the applicable CAA requirement. Where
states have done so and EPA has found such budgets adequate or approved the SIP containing
the budgets, the MPO or MPOs in each state with such budgets can determine conformity
completely independently of the other states.15

EPA concluded that states can operate independently for conformity because the CAA refers to
conformity to a SIP.  Each state's RFP plan, attainment demonstration, or maintenance plan
includes inventories, control measures and programs, and budgets that apply to only that state's
portion of the nonattainment or maintenance area.
3.12   How is conformity determined for a multi-state nonattainment or
       maintenance areas when one state has a budget for a NAAQS and the
       other state(s) does not have budgets for that pollutant?

A SIP budget must be used for conformity once EPA finds the budget adequate or approves the
SIP.  Consistent with CAA section 176(c), once a state in a multi-state nonattainment or
maintenance area has an adequate or approved budget, it can determine conformity completely
independently of the other states.  This is the case even if it is the only state in the nonattainment
or maintenance area that has such a budget.

If the area is a two-state area, and one state has a budget(s), then MPOs (with any applicable
donut areas) in both states can determine conformity on their own:

      The MPO(s) in the state with the budget(s) would use it to determine conformity for the
       area covered by the budget;
      The MPO in the state without a budget(s) would use the  interim emissions test(s), as
       applicable (see 40 CFR 93.119) for that state's portion of the area.

However, if the multi-state area is a three-state area and only one state has a budget(s), only the
MPO(s) in the state with the budget(s) could determine conformity on its own.  The MPOs in the
other two states would determine conformity for that NAAQS together, using the interim
emissions test(s).
15 For example, this is the case even when one state has a maintenance plan for a NAAQS and the other state(s) have
budgets for another type of SIP for that pollutant.

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Section 4: Conformity Determinations and Regional Emissions
Analyses with SIP Budgets for Another NAAQS of the Same
Pollutant

4.1    To what areas does this section of the guidance apply?

This section of the guidance applies to areas that are determining conformity for a relevant
NAAQS that do not have a budget for that NAAQS but have a budget for another NAAQS of the
same pollutant (another NAAQS).16  Conformity tests for these areas are covered by 40 CFR
93.109(c)(2).

For example, an area designated nonattainment for the 2006 PM2.5 NAAQS that does not have
adequate or approved budgets for that NAAQS but has budgets for the 1997 PM2.5 NAAQS
would be covered by this section of the guidance.

Once the area submits a  SIP that contains a budget for the NAAQS for which it is designated
nonattainment and for which conformity requirements apply (relevant NAAQS), and EPA finds
the budget adequate or approves the SIP that contains it, the area must use it for conformity for
that NAAQS (40 CFR 93.109(c)). When that occurs, this section of the guidance no longer
applies; readers should consult Section 3 of this guidance.
General

4.2    What scenarios could result when determining conformity for a
       NAAQS using a budget from another NAAQS of the same pollutant?

As described in the Conformity Restructuring rule (77 FR 14979), there are four generic
scenarios for how an area's boundaries for the relevant NAAQS relate to boundaries covered by
budgets for another NAAQS of the same pollutant. The conformity rule is written with these
four scenarios in mind.

To determine which scenario describes an area, it is necessary to consider the boundary of the
entire area designated for the relevant NAAQS. For example, in a multi-state 2006 PM2.5 area,
the 2006 PM2.5 area nonattainment boundary refers to the entire multi-state area, rather than each
state's individual portion.

Figure 4.1 below illustrates the four generic boundary scenarios.
16 A precursor budget for one pollutant cannot be used as the test of conformity for any other pollutant. If, for
example, an area has an approved 1997 ozone attainment demonstration with a NOx budget, this NOx budget must
be used to demonstrate conformity for the 1997 ozone NAAQS and would also be used to demonstrate conformity
for any future ozone NAAQS before the area has a budget for it. However, this ozone SIP NOx budget could not be
used to demonstrate conformity for a PM or NO2 NAAQS because doing so would not be consistent with the Clean
Air Act.  See the Conformity Restructuring rule (77 FR 14979) for details.

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                 Figure 4.1: The Four Boundary Scenarios
  oo
     Scenario 1
Scenario 2
Scenario:
Scenario 4
                  j  = Another NAAQS area for the same pollutant

               " ~*\ = Relevant NAAQS area (i.e., for which conformity applies)
       Scenario 1: Boundaries for both areas are identical.
       Scenario 2: The boundary of the relevant NAAQS area is smaller than and
        completely within the area designated for another NAAQS of the same pollutant.
       Scenario 3: The boundary of the relevant NAAQS area is larger than and contains the
        area designated for another NAAQS of the same pollutant.
       Scenario 4: The boundary of the relevant NAAQS area overlaps with a portion of the
        area designated for another NAAQS of the same pollutant.

It is possible that, in any scenario, the boundary of the relevant NAAQS could include portions
of one or more areas designated for another NAAQS. For example, a Scenario 1 area could be
formed from two areas designated for another NAAQS. In these cases, the interagency
consultation process should be used to determine how the budgets from another NAAQS will
apply. The information below covers further details on all of the scenarios.
4.3   What are the general test requirements for regional emissions analyses
     for these areas?

In general, if an area does not have budgets for the relevant NAAQS but has budgets from
another NAAQS of the same pollutant, these budgets must be used in the budget test. Where
such budgets do not cover the entire area, the interim emissions test(s) may also have to be used
(40CFR93.109(c)(2)).

A 2006 court decision established the legal parameters for using existing budgets as the regional
conformity test (EnvironmentalDefense v. EPA, 467 F.3d 1329 (DC Cir. 2006)). EPA
incorporated the court's decision for ozone conformity tests in its January 24, 2008 final rule (73
FR 4424). While the court's decision concerned ozone, EPA believes the court's holding is
relevant for other pollutants for which conformity must be demonstrated.  Therefore, EPA
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incorporated the court's decision regarding conformity tests in its March 24, 2010 final rule (the
"PM Amendments" rule, 75 FR 14260). Most recently, in its Conformity Restructuring rule (77
FR 14979), EPA reorganized 40 CFR 93.109(c) so that the court's decision is incorporated in the
regulation for all NAAQS for which conformity applies.

This requirement also applies when areas have subarea budgets for another NAAQS of the same
pollutant.  Where subarea budgets exist for another NAAQS, MPOs must use them to
demonstrate conformity for the relevant NAAQS until they have budgets for the relevant
NAAQS.  In general, each subarea can determine conformity independently as long as they are
using subarea budgets for another NAAQS and other applicable tests to determine conformity.
See Section 4.14 for details.  See also Section 3 of this guidance for further information on
conformity determinations using subarea budgets.
4.4    How is the budget test generally implemented in areas that do not have
       a budget for the relevant NAAQS but have a budget for another
       NAAQS of the same pollutant?

The budget test requirements in 40 CFR 93.118 for relevant NAAQS areas with a budget for
another NAAQS of the same pollutant will generally be implemented in the same manner as the
budget test for  another NAAQS. First, as described above, the geographic area covered by the
relevant NAAQS may be different than that covered by the other NAAQS of the same pollutant
in some cases.  Second, the years for which the regional emissions analysis is required (i.e.,
analysis years) may differ.

Areas that use budgets from another NAAQS for their relevant NAAQS conformity
determinations will need to determine the modeling analysis years that apply for the relevant
NAAQS per 40 CFR 93.118(d)(2). Under this section, a regional emissions analysis for the
budget test must be performed for:
       the attainment year, if it is within the timeframe of the transportation plan and
        conformity determination,
       the last year of the timeframe of the conformity determination, and
       intermediate years as necessary, such that analysis years are no more than ten years
        apart.

The attainment year analysis is to be for an area's attainment year for the relevant NAAQS, and
not the attainment year for the other NAAQS of the same pollutant. The area must calculate
emissions in the analysis years from the planned transportation system, and compare them to the
budget. Emissions projected for each analysis year must be within the budget for the most recent
prior year. Interpolation can be used between analysis years for demonstrating consistency with
budgets.  Refer to 40 CFR 93.118 for specific details.

For example, consider an area designated nonattainment for the 2006 PM2.5 NAAQS which has
an attainment year of 2014. The boundary for the 2006 PM2.s area and the 1997 PM2.s area are
exactly the same (a Scenario 1 area), and 1997 annual PM2.5 budgets cover all of the 2006 24-
hour PM2.5 area. The 1997 PM2.5 budgets are for the years 2009 and 2014 (the RFP year and the

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attainment year, respectively.) This 2006 PM2.5 area must use the 1997 PM2.5 budgets to
determine conformity for the 2006 PM2.s NAAQS.

Suppose the 2006 PM2.5 NAAQS area is demonstrating conformity in the year 2012 for a
transportation plan that covers the years 2012 through 2035 and has not elected to shorten the
timeframe of the conformity determination per 40 CFR 93.106(d)(2).  This area would examine
the following analysis years in its 2006 PM2.5 NAAQS conformity determination:
      2014, which fulfills the 40 CFR 93.118(d)(2) requirement to analyze the 2006 PM2.5
       attainment year,
      2020 and 2030, which fulfills the 40 CFR 93.118(d)(2) requirement to analyze an
       intermediate year so that analysis years are no more than 10 years apart; and
      2035, which fulfills the requirement in 40 CFR 93.118(d)(2) requirement  to analyze the
       last year of the transportation plan/timeframe of the conformity determination.

In addition, the conformity rule at 40 CFR 93.11 l(b) requires that the 2006 PM2.5 area must also
demonstrate consistency with the 1997 PM2.5 budgets for the year 2014. Note that, in this
example, because there is no analysis year required prior to 2014  and the year 2009 is no longer
within the timeframe of the conformity determination, the budget for 2009 does not need to be
assessed.

In the example, the budget test would then be satisfied as follows:
      2014:  budget test, using the 2014 budgets
      2020:  budget test, using the 2014 budgets
      2030:  budget test, using the 2014 budgets
      2035:  budget test, using the 2014 budgets

EPA notes that under 40 CFR 93.118(d)(2), interpolating between analysis years  can be used to
demonstrate consistency with budgets in some cases. However, this was not necessary in this
example.

As stated earlier, once adequate or approved budgets are established for the 2006 PM2.5 NAAQS,
the budget test would be completed using only those budgets, rather than budgets for the 1997
PM2.5 NAAQS.

Note there can be limited cases where an area has a budget for another NAAQS of the same
pollutant that cannot be used for all analysis years because it is established for a later year.
When this occurs, the interim emissions test(s) would have to be used for analysis years that are
earlier than the budget year. For example, suppose there is a 2008 ozone NAAQS area that is a
Scenario 1 area.  This area has 1997 ozone NAAQS maintenance budgets for the  year 2022, and
that is the only year for which  ozone budgets exist.  In this case, the 2008 ozone area must use
the budget test according to 40 CFR 93.118 for 2022 and later years, and the interim emissions
test(s) according to 40 CFR 93.119 for analysis years earlier than 2022. The EPA regional office
is available to discuss what analysis years apply in different situations. See contact information
in Section 1.2.
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4.5    Where relevant NAAQS areas have to use both the budget test and the
       interim emissions test(s), what analysis years must be chosen?

As described in the March 24, 2010 and July 1, 2004 final rules (75 FR 14260 and 69 FR 40004,
respectively), there will be  cases in Scenario 3 or 4 areas where both the budget and interim
emissions tests are used.1?  In cases where both the budget and interim emissions tests are used,
the interagency consultation process can be used to choose analysis years that meet the
requirements of both 40 CFR 93.118 and 93.119 so that the number of analysis years is
minimized.

In the budget test, the years that must be analyzed (40 CFR 93.118(d)(2)) are:
      the attainment year, if it is within the timeframe of the transportation plan and conformity
       determination,
      the last year of the timeframe of the conformity determination, and
      intermediate years as necessary, such that analysis years are no more than ten years apart.

In the interim emissions tests, the years that must be analyzed (40 CFR 93.119(g)) are:
      a year 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, and
      intermediate years as necessary, such that analysis years are no more than ten years apart.

For example, consider an area designated nonattainment and classified as moderate for the 2008
ozone NAAQS that is larger than and encompasses the area covered by the 1997 ozone budgets
(i.e., budgets for NOx and VOC).  The area's attainment year for the 2008  ozone NAAQS is
2018. The 1997 ozone budgets are for the years 2007 and 2009 (the RFP year and the attainment
year for moderate 1997  ozone areas). Per 40 CFR 93.109(c)(2)(iii)(A), this area is going to use
both the budget and interim emissions tests to determine conformity for the 2008 ozone
NAAQS.18

Suppose this 2008 ozone NAAQS area is demonstrating conformity in the  year 2012 for a
transportation plan  that covers the years 2012 through 2035 and has not elected to shorten the
timeframe of the conformity determination per 40 CFR 93.106(d)(2).  This area would examine
the following analysis years in its 2008 ozone NAAQS conformity determination:
      2018, which fulfills the 40 CFR 93.118(d)(2) requirement to analyze the attainment year
       for areas classified moderate under the 2008 ozone NAAQS,
      2015 and 2025, which fulfill the 40 CFR 93.119(g) requirement to analyze a year not
       more than five years beyond the year in which the conformity determination is being
       made (2015, in this example), and the requirement in both rule sections to analyze an
       intermediate year so that analysis years are no more than 10 years apart (2015 and 2025
       in this example), and
17See Section 4.2 for details on various boundary scenarios
18
  The conformity rule at 93.109(c)(2)(iii)(B) provides the option to use the budget test as the sole test for
conformity for a Scenario 3 area; however, the Scenario 3 area in this example will be using both the budget and
interim emissions tests to determine conformity for the 2008 ozone NAAQS.

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      2035, which fulfills the requirement in both rule sections to analyze the last year of the
       transportation plan/timeframe of the conformity determination.

In addition, the conformity rule requires that the portion of the area covered by the 1997 ozone
budgets must also demonstrate consistency in the years budgets are established. However, in this
example, because the years 2007 and 2009 are no longer within the timeframe of the conformity
determination, and an analysis year is not chosen before 2015, consistency with the budgets for
2007 and 2009 does not need to be demonstrated.

In the example, the regional conformity test requirements would then be satisfied as follows:
      2015: budget test (using 2014 budgets)  and interim emissions tests  (40 CFR
       93.119(b)(l))
      2018: budget test (using 2014 budgets)  and interim emissions tests  (40 CFR
       93.119(b)(l))
      2025: budget test (using 2014 budgets)  and interim emissions tests  (40 CFR 93.1 19
       (b)(l))
      2035: budget test (using 2014 budgets)  and interim emissions tests  (40 CFR
As described in 40 CFR 93. 109(c)(2)(iii)(A), the regional emissions analysis for the budget test
in this Scenario 3 area example would cover the portion of the nonattainment area covered by the
1997 ozone budgets. The regional emissions analyses for the interim emissions test(s) in a multi-
state area would cover the portion of the state's 2008 ozone area not covered by the 1997 ozone
budgets.

As stated earlier, once adequate or approved budgets are established for the 2008 ozone NAAQS,
the budget test would be completed using only those budgets, rather than by using budgets for
the 1997 ozone NAAQS and the interim emissions tests.
4.6    In an area that has subarea budgets for another NAAQS of the same
       pollutant, how should MPOs demonstrate conformity for the first time
       under the relevant NAAQS and for subsequent conformity
       determinations?

As described in Section 3 of this guidance, when a nonattainment or maintenance area has
subarea budgets, conformity for an MPO's transportation plan and TIP can be determined only if
all other subareas have conforming transportation plans and TIPs in place for a given pollutant
and NAAQS.  This requirement applies also to cases where MPOs are demonstrating conformity
for the first time using subarea budgets for another NAAQS of the same pollutant.

In general, EPA and DOT believe it is necessary for the first conformity determination under the
relevant NAAQS to be performed as follows: each MPO would demonstrate conformity of its
transportation plan and TIP to the relevant NAAQS using the subarea budgets for another
NAAQS. All of the MPOs' transportation plan/TIP conformity determinations would then be

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submitted to DOT.  DOT will not make its conformity determination on any of the transportation
plans or TIPs for the relevant NAAQS until every MPO in the area has made a conformity
determination for its transportation plan and TIP. Please note that this answer may differ for
Scenario 3 and 4 areas where an additional portion of the relevant NAAQS area is not covered
by budgets for another NAAQS. See below for details.

All MPOs must have an initial valid conformity determination for the relevant NAAQS by the
end of the one-year grace period under 40 CFR 93.102(d).  If any do not, DOT will be unable to
make any conformity determinations for the relevant NAAQS, and all of the MPOs'
transportation plans and TIPs in the area will lapse.

In general, once DOT has made its initial conformity determination for the area, the MPOs will
operate as usual: before any MPO in the area determines conformity, all other MPOs in the area
must have a conforming transportation plan and TIP in place for the relevant NAAQS.  If one
subarea is in a conformity lapse, conformity determinations for new or revised transportation
plans and TIPs cannot be made in other subareas until the lapse ends.
4.7    How would conformity be demonstrated in multi-state areas where each
       state has its own budget for another NAAQS of the same pollutant?

Where a state has an adequate or approved budget for another NAAQS of the same pollutant for
its portion of the nonattainment area, the MPOs in the state would determine conformity
independently from MPOs in the other states, including the initial conformity determination.
The MPO in that state's portion of the area must use such budget(s) to demonstrate conformity
for the relevant NAAQS.

For example, in the case where a multi-state area is designated nonattainment for the 2006 PM2.5
NAAQS and all the states have adequate or approved 1997 PM2.5 NAAQS budgets for their
portion of the 2006 PM2.s area, the MPO(s) in each state can each demonstrate conformity
independently of the other MPOs in the other states.  The MPOs would use 1997 PM2.5 NAAQS
budgets for the 2006 PM2.5 NAAQS until they have adequate or approved 2006 PM2.5 NAAQS
budgets.

In another example of a two-state area, if only one of the states has a budget for another NAAQS
of the same pollutant, then MPOs in both states can determine conformity independently:
      The MPO in the state with the budget for another NAAQS would continue  to use it for
       the relevant NAAQS; and
      The MPO in the state without such a budget would use the interim emissions test(s).

However, if the area is a three-state area and only one state had budgets from another NAAQS,
only the MPO in the state with the budgets could determine conformity on its own. MPOs in the
other two states would determine conformity for the relevant NAAQS together using the interim
emissions test(s).
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If the MPO in one of the states cannot demonstrate conformity at the end of the one-year grace
period under 40 CFR 93.102(d), the MPO(s) in the other state(s) in the nonattainment area can
continue to make conformity determinations.  This is because, where they have their own SIP
and budgets, the states operate independently for conformity purposes.

EPA notes, however, that in Scenario 3 and 4 areas, the circumstances are more complex. In
those cases, budgets for another NAAQS may not be the sole test of conformity for a state's
portion of the relevant NAAQS area since the conformity determination must include a regional
emissions analysis that includes the entire relevant NAAQS area.  See below for how this applies
to the various boundary scenarios.

See Section 3 of this guidance for further details on conformity determinations using multi-state
budgets.
Scenario 1 Areas

As described in Section 4.2, the boundary for the Scenario 1 area designated for the relevant
NAAQS is identical to the boundary for the area designated for another NAAQS of the same
pollutant:
                           = Another NAAQS area for the same pollutant

                           = Relevant NAAQS area (i.e., for which conformity applies)
       Scenario 1
4.8    How is conformity demonstrated in Scenario 1 areas where one budget
       (or one set of budgets) apply for the entire area?

Conformity determinations are straightforward in Scenario 1 areas, because the area boundaries
for the relevant NAAQS area and another NAAQS area are exactly the same. Where the area is
covered by more than one MPO, they must coordinate their transportation plan/IIP conformity
determinations and submit them to DOT. Once DOT receives all transportation plan/TIP
conformity determinations for the relevant NAAQS, DOT will make its conformity
determinations at the same time.  Further, the planning agencies will have to work together to
develop one regional emissions analysis for the relevant NAAQS per 40 CFR 93.109(c)(2)(i),
just as they would when determining conformity in the past. See Section 3.4 and 3.9 of this
guidance for further information regarding how a regional emissions analysis could be completed
for these areas.
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4.9    How is conformity demonstrated in a Scenario 1 area when subarea
       budgets have been established?

As discussed in Section 3.2 of this guidance, conformity follows the SIP. Therefore, when
budgets to be used for conformity are subarea budgets from another NAAQS of the same
pollutant, conformity determinations and the supporting regional emissions analyses for the
relevant NAAQS area are done using these subarea budgets. See Sections 3.5 through 3.8 for
additional information.
4.10   How is conformity demonstrated in multi-state Scenario 1 areas, where
       each state has its own budget?

As discussed in Section 3.3, conformity and the supporting regional emissions analysis are done
for the geographic area that is covered by the SIP's budgets, i.e., each state's portion of the
nonattainment area.

An MPO in a state with a budget for another NAAQS of the same pollutant can determine
conformity for the relevant NAAQS independent of MPOs in the other states. This is true
whether the other state or states do not have budgets and must use the interim emissions test(s),
or the MPOs in the other state or states in the area are in a conformity lapse, or the MPOs in the
other state or states have not yet determined conformity for the relevant NAAQS.

Please see Sections 3.11  and 3.12 of this guidance for further information regarding how a
regional emissions analysis could be completed for these areas.
Scenario 2 Areas

As described in Section 4.2, the boundary for the Scenario 2 area designated for the relevant
NAAQS is smaller than and completely within the area designated for another NAAQS of the
same pollutant:


                          = Another NAAQS  area for the same pollutant

                   ^ J = Relevant NAAQS area (i.e., for which conformity applies)

       Scenario 2
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4.11   How is conformity demonstrated in a Scenario 2 area, when the budget
       applies to the entire area for the relevant NAAQS?

In a Scenario 2 area, the relevant NAAQS area is smaller than and completely encompassed by
an area designated for another NAAQS of the same pollutant. In this situation, one of the
following options must be met for the relevant NAAQS area:

      The budget test using the subset or portion of the budget for the other NAAQS that
       applies to the relevant NAAQS area, where such portion(s) can be reasonably identified
       (40 CFR 93.109(c)(2)(ii)(A)).

       For example, a three-county area designated for the relevant NAAQS is entirely within a
       four-county area that has a budget for another NAAQS, and the SIP identified emissions
       by county.  In this case, the portion of that other NAAQS budget that applies to the
       relevant NAAQS area can be identified, so it could be used to demonstrate conformity for
       the relevant NAAQS;

       OR

      The budget test using the budget for another NAAQS of the same pollutant for the entire
       area designated for that other NAAQS. In this case, any additional emissions reductions
       beyond those addressed by control measures in the SIP for that other NAAQS would be
       required to come from the relevant NAAQS area (40 CFR 93.109(c)(2)(ii)(B)).

       For example, in the case of the three-county area, the four-county area's budget for
       another NAAQS could be used for the four-county area (i.e., the area designated for that
       other NAAQS) to demonstrate conformity for the three-county area (i.e., the relevant
       NAAQS area).  Any reductions needed would have to come from within the three-county
       area.

The interagency consultation process must be used to determine which of these options will be
used.  Through interagency consultation,  it can be determined whether using a portion of the
budgets covered by another NAAQS is feasible and, if so, how deriving such a portion would be
accomplished.  It may be possible to create budgets for only the relevant NAAQS area, for
example if the budget contains estimates of emissions by county, and emissions from the county
or counties not included in the relevant NAAQS area can be subtracted.

Areas that can identify that portion of the budget(s) that applies to the relevant NAAQS area
could choose to use either option each time they make a conformity determination.  For any
particular conformity determination, however, the same choice would have to be used for each
analysis year. EPA believes that to  do otherwise would be unnecessarily complicated and may
indicate that one option used consistently for all analysis years would not demonstrate
conformity.
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The MPO or MPOs must coordinate transportation plan/TIP conformity determinations and
submit them to DOT. Once DOT receives all transportation plan/TIP conformity determinations,
DOT will make its conformity determinations at the same time.

If it is not possible to determine what portion of the budget for another NAAQS applies to the
relevant NAAQS area, the MPO or MPOs will have to determine conformity for the area covered
by the budget for another NAAQS, and if reductions are needed to meet the budgets, they must
come from within the relevant NAAQS area as required by 40 CFR 93.109(c)(2)(ii)(B).
4.12   How is conformity demonstrated in multi-state Scenario 2 areas, where
       each state has its own budget?

As discussed in Section 3.3, conformity is determined for the geographic area that is covered by
the SIP's budgets, i.e., each state's portion of the nonattainment area.

For Scenario 2 areas, the MPO in each state can choose either of two options for the budget test
for its portion of the relevant NAAQS area:

      The budget test using the subset or portion of the budget for another NAAQS of the same
       pollutant that covers the relevant NAAQS area within that state, where such portion(s)
       can reasonably be identified (40 CFR 93.109(c)(2)(ii)(A));

       OR

      The budget test using the budget for another NAAQS of the same pollutant for the entire
       area covered by that budget within the state.  In this case, if additional emissions
       reductions are necessary to meet the budget test, these emissions reductions must come
       from within that state's portion of the relevant NAAQS area (40 CFR
Consistent with Section 4.1 1, the interagency consultation process must be used to determine
which of these options will be used.
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Scenario 3 Areas

As described in Section 4.2, the boundary for the Scenario 3 area designated for the relevant
NAAQS is larger than and contains the area designated for another NAAQS of the same
pollutant:
                          = Another NAAQS area for the same pollutant

                    ^_J = Relevant NAAQS area (i.e., for which conformity applies)

       Scenario 3



Scenario 3 Areas within One State

4.13   How is conformity demonstrated in a Scenario 3 area located entirely
       within one state?

In this case, the nonattainment area for the relevant NAAQS covers a larger geographic area and
encompasses an entire area for another NAAQS of the same pollutant. In this situation,
conformity for the relevant NAAQS is determined by meeting either 40 CFR 93.109(c)(2)(iii)(A)
or(B):

   (A) The budget test using the budgets for another NAAQS of the same pollutant for the
       portion of the relevant NAAQS area that it covers AND the interim emissions test(s) for:
          o   The remaining portion of the relevant NAAQS area; or
          o   The entire relevant NAAQS area

              OR

   (B) The budget test using the budget(s) for another NAAQS of the same pollutant for the
       entire relevant NAAQS area.

If the MPOs choose an option that requires the use of an interim emissions test, once they select
a particular interim emissions test and the geographic area it will address, the same test must be
used consistently for all analysis years. The interagency consultation process must be used to
determine which analysis years should be selected for regional emissions analyses where the
budget test and interim emissions tests are used. It may be possible to choose analysis  years that
satisfy both the budget and interim emissions test(s) requirements if both tests are used. See
Section 4.5 for more information.
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If the relevant NAAQS area includes a donut area, the interagency consultation partners must
decide which agency will be responsible for the donut area regional emissions analysis. See
Section 1.6 for details.
4.14   How is conformity demonstrated in a Scenario 3 area located entirely
       within one state, when subarea budgets apply?

As described in Sections 3.5 through 3.8 and in Sections 4.3, 4.6 and 4.9, each MPO can develop
its own regional emissions analysis and conformity determination for its transportation plan and
TIP, as long as all of the other MPOs in the area have a conforming transportation plan and TIP
for the relevant NAAQS in place. The unique aspect in a Scenario 3 area is that there is a
portion of the relevant NAAQS area that is not covered by the subarea budgets for another
NAAQS of the same pollutant.  For this portion of the relevant NAAQS area, a regional
emissions analysis using the interim emissions test(s) must be done, and this regional emissions
analysis can be done for either:

          The part of the relevant NAAQS area not covered by the subarea budgets for another
          NAAQS of the same pollutant,

          OR

          The entire relevant NAAQS area.

As addressed in Section 4.6, for the initial conformity determination under the relevant NAAQS,
each MPO can determine conformity for its own transportation plan and TIP, including any
donut portion of the area where applicable, and DOT will make its conformity determination for
all MPOs at the same time.

 Figure 4.2: A Scenario 3 Area within One State with Subarea Budgets from
                     Another NAAQS of the Same Pollutant
                                           O
                                          o
= Another NAAQS area

= Relevant NAAQS area
                                          A,B,C,D = MPOs with subarea budgets from
                                                    another NAAQS of the same
                                                    pollutant

                                             E   = New county in relevant NAAQS area
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In Figure 4.2 above, MPOs A, B, C, and D can develop conformity determinations for the
relevant NAAQS for just their own transportation plans and TIPs using their subarea budgets for
another NAAQS of the same pollutant. The regional emissions analysis for Part E must be done
using the interim emissions test(s). Part E may be a donut area or may have its own MPO.  If
Part E is a donut area, the parties involved in interagency consultation must discuss which MPO
will be responsible for Part E's emissions, and for what geographic area the regional emissions
analysis will be done (either just Part E, or the entire area A through E).  See Sections 1.6 and 3.5
through 3.8 for details.

Once an area selects a particular interim emissions test and the geographic area it will address,
the  same test must be used consistently for all analysis years.  The consultation process must be
used to determine which analysis years should be selected for regional emissions analyses where
the  budget test and interim emissions test(s) are used.  It may be possible to choose analysis
years that satisfy both the budget and interim emissions test(s) requirements. See Section 4.5 for
more information.
Scenario 3 Multi-State Areas

4.15  How is conformity demonstrated in a multi-state Scenario 3 area, where
       all the states have their own budgets?

As described above, conformity determinations can be made independently in any state that has
its own budget(s). In addition, there are several options for completing the regional emissions
analysis if the relevant NAAQS area within a state is larger than the area covered by another
NAAQS of the same pollutant:

Option 1:  The budget test for each state's portion of the relevant NAAQS area covered by the
budget(s) AND the interim emissions test(s) for either:

     the portion of the relevant NAAQS area within that state that is not covered by the
       budget(s),
     that state's entire portion of the relevant NAAQS area; or
     the entire multi-state area for the relevant NAAQS.

   For Scenario 3 areas, any of these approaches could be implemented under 40 CFR
Option 2:  The budget test for the entire relevant NAAQS area using the budget(s) for another
NAAQS of the same pollutant (40 CFR 93.109(c)(2)(iii)(B)).

For example, in Figure 4.3 below, an area designated for a relevant NAAQS includes parts of
three states, and the boundary in States A and B is unchanged from the area covered by the
budgets, but the boundary in State C is larger.
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                    Figure 4.3: A Multi-State Scenario 3 Area
                                                            Portion of the relevant
                                                            NAAQS area not covered by
                                                            another NAAQS budget(s)
                                                                = Another NAAQS area
                                                                 Relevant NAAQS area
                                                        	=  State/SIP budget
                                                                  boundaries
States A, B, and C can continue to determine conformity independently from one another for the
relevant NAAQS. MPOs in States A and B would determine conformity for their own portions
of the relevant NAAQS area using their respective budgets for another NAAQS of the same
pollutant.

The MPO in State C could choose to determine conformity for its portion of the relevant
NAAQS area as follows:

Option 1: The budget test using the budget(s) for another NAAQS for the geographic area
covered by such budgets, plus the interim emissions test(s) for either one of the following:

      the portion of the relevant NAAQS area in State C not covered by budget(s) (white
       portion of Figure 4.3);
      the entire portion of the relevant NAAQS area that lies within State C (gray and white
       within State C portion of Figure 4.3) ; or
      the entire multi-state relevant NAAQS area (all of Figure 4.3).

   OR

Option 2: Using its budget(s) for another NAAQS for the budget test, the entire portion of the
relevant NAAQS area in State C (including that portion of the relevant NAAQS area that lies
within State C that is not covered by another NAAQS budget).
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4.16  How is the regional emissions analysis done in multi-state Scenario 3
      areas, where only one of the states has its own budget(s)?

As discussed elsewhere in this guidance, if one state has a budget(s) for another NAAQS of the
same pollutant and the relevant NAAQS area is comprised of two states, then MPOs in both
states can determine conformity on their own:

     The MPOs in the state with the budget would use it to demonstrate conformity for its
      portion of the relevant NAAQS area.
     The MPOs in the state without a budget would use the interim emissions test(s).

In Figure 4.4 below, the MPOs in each state can determine conformity for its own portion of the
relevant NAAQS  area, even though State B does not have any budget for that pollutant.
                       Figure 4.4: A Two-State Scenario 3 Area


                                                          = Another NAAQS Area

                                                          = Relevant NAAQS Area

                                                          = State boundary
However, if the relevant NAAQS area is a three-state area and only one state has a budget for
another NAAQS of the same pollutant, only the MPO in the state with the budget would
determine conformity on its own. MPOs in the other two states would determine conformity for
the relevant NAAQS together using the interim emissions test(s). See Section 2 for guidance on
determining conformity using the interim emissions test(s).
Scenario 3 - General

4.17  What are the special issues that the interagency consultation process
      should consider in Scenario 3 areas?

The interagency consultation process is of key importance in these areas. Because the boundary
of the relevant NAAQS area is larger than the area covered by the budget(s) for another
NAAQS, one or more planning agencies previously not involved in conformity may become part

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of the interagency process.  These planning agencies need to be included in the decision-making
process for the area.

Through the interagency consultation process (40 CFR 93.105), the involved parties must decide:

      whether it is more appropriate for the state DOT or an MPO to prepare the regional
       emissions analysis for a donut area, if there is one;
      which interim emissions test will be used, in areas that can select only one test;
      analysis years for the budget test and interim  emissions test(s) when both are used. It
       may be possible to choose analysis years that satisfy both the budget and interim
       emissions test requirements in 40 CFR 93.118(d)(2) and 93.119(g); and
      whether the relevant NAAQS area can meet the budget(s) without the interim emission
       test. Scenario 3 areas may be able to demonstrate conformity without an interim
       emissions test if the entire relevant NAAQS area can meet the budget for another
       NAAQS of the  same pollutant and if not, what portion of the area the interim emissions
       test(s) will cover.
Scenario 4 Areas

As described in Section 4.2, the boundary for the Scenario 4 area designated for the relevant
NAAQS overlaps with a portion of the area designated for another NAAQS of the same
pollutant:
                          = Another NAAQS area for the same pollutant

                    ^  j = Relevant NAAQS area (i.e., for which conformity applies)

       Scenario 4
Scenario 4 Areas within One State

4.18   How is conformity demonstrated in a Scenario 4 area, when one budget
       applies for the entire area rather than subarea budgets?

In a Scenario 4 area, the boundaries partially overlap for the relevant NAAQS area and the area
designated by another NAAQS of the same pollutant. Unlike Scenario 3 areas, the relevant
NAAQS area does not contain the entire area designated for another NAAQS. Therefore, the
budgets cannot be the sole test of conformity for the relevant NAAQS, since a conformity
determination must include a regional emissions analysis that includes the entire relevant
NAAQS area.
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In this scenario, conformity for the relevant NAAQS is determined with the budget test using the
budgets for another NAAQS for the portion of the relevant NAAQS area that the budget covers,
AND the interim emissions test(s) for:

      the remaining portion of the relevant NAAQS area, (i.e., the portion not covered by the
       budgets),

       OR

      the entire relevant NAAQS area (40 CFR 93.109(c)(2)(iv).

If the relevant NAAQS area includes a donut area, the interagency consultation partners must
decide which agency will be responsible for the donut area regional emissions analysis.  See
Section 1.6 for details.

Similar to  Scenario 3 areas, the same test and geographic portion of the relevant NAAQS area
must be used consistently for all analysis years.

For example, in Figure 4.5 below, a relevant NAAQS area partially overlaps an area designated
nonattainment previously for another NAAQS of the same pollutant.
                 Figure 4.5:  A Scenario 4 Area within One State
                                             = Another NAAQS area with budgets
                                             = Relevant NAAQS area

                                             This portion of the relevant area
                                             has budgets
In this example, the conformity determination for the relevant NAAQS area would be completed
using:

      The budget test, for that portion of the relevant NAAQS area covered by the budget (as
       indicated by the arrow in Figure 4.5),

       AND

      The interim emissions test for either:
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          o  The part of the relevant NAAQS area not covered by the budget(s) for another
             NAAQS of the same pollutant - in Figure 4.5, the white portion inside the bolded
             circle,
             OR
          o  The entire relevant NAAQS area (the entire area inside the bolded circle).
Scenario 4 Multi-State Areas

4.19   How does a multi-state Scenario 4 area determine conformity, when
       each state has its own budget(s)?

Multi-state Scenario 4 areas are a unique case.  Where each state has its own budget(s) for
another NAAQS of the same pollutant that applies only to its portion of the relevant NAAQS
area, MPOs in each state can determine conformity for the relevant NAAQS independently.
Where the budget for another NAAQS can be reasonably identified through the interagency
consultation process, it must be used (40 CFR 93.109(c)(2)(iv)). In addition, any portion of a
state's area not covered by those budgets would have to be included in an interim emissions
test(s), for
      that part of the relevant NAAQS area not covered by the budget;
      the state's entire portion of the relevant NAAQS area;
       OR
      the entire relevant NAAQS area.

The interagency consultation process would be used  to determine which test option is selected in
Scenario 4 areas. Once an area selects a particular interim emissions test and the geographic area
it will address, the same test must be used  consistently for all analysis years.
4.20   How is the regional emissions analysis done in a multi-state Scenario 4
       area, where only one of the states has its own budget?

The conformity rule requires that if any state has a budget(s), that budget must be used and
therefore the state would determine conformity independently from the other states in the
relevant NAAQS area (40 CFR 93.109(c)(2)(iv)).  The state or states that have budgets for
another NAAQS of the same pollutant would use them or portions of them for their regional
emissions analyses and conformity determinations for the relevant NAAQS area. The state or
states without those budgets would use the interim emissions test(s) for conformity in the
relevant NAAQS area and, in the case where two or more states do not have budgets, they would
determine conformity together. See Section 2 for guidance on determining conformity using the
interim emissions test(s).
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Scenario 4 - General

4.21   What are special issues that the interagency consultation process should
       consider in Scenario 4 areas?

The interagency consultation process is also of key importance in Scenario 4 areas. Where a
relevant NAAQS area partially covers an area designated for another NAAQS of the same
pollutant, one or more MPOs may no longer have to determine conformity and one or more new
MPOs may become part of the interagency consultation process. All MPOs in the relevant
NAAQS area as well as the other parties involved in interagency consultation need to be
involved in the decision-making process for the area.

Through the interagency consultation process (40 CFR 93.105), the involved parties must decide:
      whether to apply the interim emissions test(s) to the entire relevant NAAQS area (or in a
       multi-state area, to one state's portion of the area) or to just the portion not covered by a
       budget for another NAAQS of the same pollutant;
      whether it is more appropriate for the state DOT or an MPO to prepare the regional
       emissions analysis for a  donut area, if there  is one;
      which interim emissions test will be used, in areas  that can select only one test; and
      analysis years for the budget test and interim emissions test(s). It may be possible to
       choose  analysis years that satisfy both the budget and interim emissions test requirements
       in 40 CFR93.118(d) and 93.119(g).
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