40CFR93and 51

40CFR93and51.doc

Highway Performance Monitoring System (HPMS)

40CFR93and 51

OMB: 2125-0028

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[Page 542-594]

TITLE 40--PROTECTION OF ENVIRONMENT

CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

PART 93_DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL

IMPLEMENTATION PLANS

Subpart A_Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed, Funded or

Approved Under Title 23 U.S.C. or the Federal Transit Laws

Sec.

93.100 Purpose.

93.101 Definitions.

93.102 Applicability.

93.103 Priority.

93.104 Frequency of conformity determinations.

93.105 Consultation.

93.106 Content of transportation plans.

93.107 Relationship of transportation plan and TIP conformity with the

NEPA process.

93.108 Fiscal constraints for transportation plans and TIPs.

93.109 Criteria and procedures for determining conformity of

transportation plans, programs, and projects: General.

93.110 Criteria and procedures: Latest planning assumptions.

93.111 Criteria and procedures: Latest emissions model.

93.112 Criteria and procedures: Consultation.

93.113 Criteria and procedures: Timely implementation of TCMs.

93.114 Criteria and procedures: Currently conforming transportation plan

and TIP.

93.115 Criteria and procedures: Projects from a plan and TIP.

93.116 Criteria and procedures: Localized CO and PM<INF>10</INF>

violations (hot spots).

93.117 Criteria and procedures: Compliance with PM<INF>10</INF> control

measures.

93.118 Criteria and procedures: Motor vehicle emissions budget.

93.119 Criteria and procedures: Emission reductions in areas without

motor vehicle emissions budgets.

93.120 Consequences of control strategy implementation plan failures.

93.121 Requirements for adoption or approval of projects by other

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

Federal Transit Laws.

93.122 Procedures for determining regional transportation-related

emissions.

93.123 Procedures for determining localized CO and PM<INF>10</INF>

concentrations (hot-spot analysis).

93.124 Using the motor vehicle emissions budget in the applicable

implementation plan (or implementation plan submission).

93.125 Enforceability of design concept and scope and project-level

mitigation and control measures.

93.126 Exempt projects.

93.127 Projects exempt from regional emissions analyses.

93.128 Traffic signal synchronization projects.

93.129 Special exemptions from conformity requirements for pilot program

areas.

Subpart B_Determining Conformity of General Federal Actions to State or

Federal Implementation Plans

93.150 Prohibition.

[[Page 543]]

93.151 State implementation plan (SIP) revision.

93.152 Definitions.

93.153 Applicability.

93.154 Conformity analysis.

93.155 Reporting requirements.

93.156 Public participation.

93.157 Frequency of conformity determinations.

93.158 Criteria for determining conformity of general Federal actions.

93.159 Procedures for conformity determinations of general Federal

actions.

93.160 Mitigation of air quality impacts.

Authority: 42 U.S.C. 7401-7671q.

Source: 58 FR 62235, Nov. 24, 1993, unless otherwise noted.

Subpart A_Conformity to State or Federal Implementation Plans of

Transportation Plans, Programs, and Projects Developed, Funded or

Approved Under Title 23 U.S.C. or the Federal Transit Laws

Source: 62 FR 43801, Aug. 15, 1997, unless otherwise noted.

Sec. 93.100 Purpose.

The purpose of this subpart is to implement section 176(c) of the

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

related requirements of 23 U.S.C. 109(j), with respect to the conformity

of transportation plans, programs, and projects which are developed,

funded, or approved by the United States Department of Transportation

(DOT), and by metropolitan planning organizations (MPOs) or other

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

(49 U.S.C. Chapter 53). This subpart sets forth policy, criteria, and

procedures for demonstrating and assuring conformity of such activities

to an applicable implementation plan developed pursuant to section 110

and Part D of the CAA.

Sec. 93.101 Definitions.

Terms used but not defined in this subpart shall have the meaning

given them by the CAA, titles 23 and 49 U.S.C., other Environmental

Protection Agency (EPA) regulations, or other DOT regulations, in that

order of priority.

Applicable implementation plan is defined in section 302(q) of the

CAA and means the portion (or portions) of the implementation plan, or

most recent revision thereof, which has been approved under section 110,

or promulgated under section 110(c), or promulgated or approved pursuant

to regulations promulgated under section 301(d) and which implements the

relevant requirements of the CAA.

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

Cause or contribute to a new violation for a project means:

(1) To cause or contribute to a new violation of a standard in the

area substantially affected by the project or over a region which would

otherwise not be in violation of the standard during the future period

in question, if the project were not implemented; or

(2) To contribute to a new violation in a manner that would increase

the frequency or severity of a new violation of a standard in such area.

Clean data means air quality monitoring data determined by EPA to

meet the requirements of 40 CFR part 58 that indicate attainment of the

national ambient air quality standard.

Control strategy implementation plan revision is the implementation

plan which contains specific strategies for controlling the emissions of

and reducing ambient levels of pollutants in order to satisfy CAA

requirements for demonstrations of reasonable further progress and

attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B),

187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and

192(b), for nitrogen dioxide).

Design concept means the type of facility identified by the project,

e.g., freeway, expressway, arterial highway, grade-separated highway,

reserved right-of-way rail transit, mixed-traffic rail transit,

exclusive busway, etc.

Design scope means the design aspects which will affect the proposed

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

vehicle or person carrying capacity and control, e.g., number of lanes

or tracks to be constructed

[[Page 544]]

or added, length of project, signalization, access control including

approximate number and location of interchanges, preferential treatment

for high-occupancy vehicles, etc.

DOT means the United States Department of Transportation.

EPA means the Environmental Protection Agency.

FHWA means the Federal Highway Administration of DOT.

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

transit project which is proposed to receive funding assistance and

approval through the Federal-Aid Highway program or the Federal mass

transit program, or requires Federal Highway Administration (FHWA) or

Federal Transit Administration (FTA) approval for some aspect of the

project, such as connection to an interstate highway or deviation from

applicable design standards on the interstate system.

Forecast period with respect to a transportation plan is the period

covered by the transportation plan pursuant to 23 CFR part 450.

FTA means the Federal Transit Administration of DOT.

Highway project is an undertaking to implement or modify a highway

facility or highway-related program. Such an undertaking consists of all

required phases necessary for implementation. For analytical purposes,

it must be defined sufficiently to:

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

environmental matters on a broad scope;

(2) Have independent utility or significance, i.e., be usable and be

a reasonable expenditure even if no additional transportation

improvements in the area are made; and

(3) Not restrict consideration of alternatives for other reasonably

foreseeable transportation improvements.

Horizon year is a year for which the transportation plan describes

the envisioned transportation system according to Sec. 93.106.

Hot-spot analysis is an estimation of likely future localized CO and

PM<INF>10</INF> pollutant concentrations and a comparison of those

concentrations to the national ambient air quality standards. Hot-spot

analysis assesses impacts on a scale smaller than the entire

nonattainment or maintenance area, including, for example, congested

roadway intersections and highways or transit terminals, and uses an air

quality dispersion model to determine the effects of emissions on air

quality.

Increase the frequency or severity means to cause a location or

region to exceed a standard more often or to cause a violation at a

greater concentration than previously existed and/or would otherwise

exist during the future period in question, if the project were not

implemented.

Lapse means that the conformity determination for a transportation

plan or TIP has expired, and thus there is no currently conforming

transportation plan and TIP.

Maintenance area means any geographic region of the United States

previously designated nonattainment pursuant to the CAA Amendments of

1990 and subsequently redesignated to attainment subject to the

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

as amended.

Maintenance plan means an implementation plan under section 175A of

the CAA, as amended.

Metropolitan planning organization (MPO) is that organization

designated as being responsible, together with the State, for conducting

the continuing, cooperative, and comprehensive planning process under 23

U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative

transportation decision-making.

Milestone has the meaning given in sections 182(g)(1) and 189(c) of

the CAA. A milestone consists of an emissions level and the date on

which it is required to be achieved.

Motor vehicle emissions budget is that portion of the total

allowable emissions defined in the submitted or approved control

strategy implementation plan revision or maintenance plan for a certain

date for the purpose of meeting reasonable further progress milestones

or demonstrating attainment or maintenance of the NAAQS, for any

criteria pollutant or its precursors, allocated to highway and transit

vehicle use and emissions.

National ambient air quality standards (NAAQS) are those standards

established pursuant to section 109 of the CAA.

[[Page 545]]

NEPA means the National Environmental Policy Act of 1969, as amended

(42 U.S.C. 4321 et seq.).

NEPA process completion, for the purposes of this subpart, with

respect to FHWA or FTA, means the point at which there is a specific

action to make a determination that a project is categorically excluded,

to make a Finding of No Significant Impact, or to issue a record of

decision on a Final Environmental Impact Statement under NEPA.

Nonattainment area means any geographic region of the United States

which has been designated as nonattainment under section 107 of the CAA

for any pollutant for which a national ambient air quality standard

exists.

Project means a highway project or transit project.

Protective finding means a determination by EPA that a submitted

control strategy implementation plan revision contains adopted control

measures or written commitments to adopt enforceable control measures

that fully satisfy the emissions reductions requirements relevant to the

statutory provision for which the implementation plan revision was

submitted, such as reasonable further progress or attainment.

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

Transit Laws means any agency at any level of State, county, city, or

regional government that routinely receives title 23 U.S.C. or Federal

Transit Laws funds to construct FHWA/FTA projects, operate FHWA/FTA

projects or equipment, purchase equipment, or undertake other services

or operations via contracts or agreements. This definition does not

include private landowners or developers, or contractors or entities

that are only paid for services or products created by their own

employees.

Regionally significant project means a transportation project (other

than an exempt project) that is on a facility which serves regional

transportation needs (such as access to and from the area outside of the

region, major activity centers in the region, major planned developments

such as new retail malls, sports complexes, etc., or transportation

terminals as well as most terminals themselves) and would normally be

included in the modeling of a metropolitan area's transportation

network, including at a minimum all principal arterial highways and all

fixed guideway transit facilities that offer an alternative to regional

highway travel.

Safety margin means the amount by which the total projected

emissions from all sources of a given pollutant are less than the total

emissions that would satisfy the applicable requirement for reasonable

further progress, attainment, or maintenance.

Standard means a national ambient air quality standard.

Transit is mass transportation by bus, rail, or other conveyance

which provides general or special service to the public on a regular and

continuing basis. It does not include school buses or charter or

sightseeing services.

Transit project is an undertaking to implement or modify a transit

facility or transit-related program; purchase transit vehicles or

equipment; or provide financial assistance for transit operations. It

does not include actions that are solely within the jurisdiction of

local transit agencies, such as changes in routes, schedules, or fares.

It may consist of several phases. For analytical purposes, it must be

defined inclusively enough to:

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

environmental matters on a broad scope;

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

reasonable expenditure even if no additional transportation improvements

in the area are made; and

(3) Not restrict consideration of alternatives for other reasonably

foreseeable transportation improvements.

Transportation control measure (TCM) is any measure that is

specifically identified and committed to in the applicable

implementation plan that is either one of the types listed in section

108 of the CAA, or any other measure for the purpose of reducing

emissions or concentrations of air pollutants from transportation

sources by reducing vehicle use or changing traffic flow or congestion

conditions. Notwithstanding the first sentence of this definition,

vehicle technology-based, fuel-

[[Page 546]]

based, and maintenance-based measures which control the emissions from

vehicles under fixed traffic conditions are not TCMs for the purposes of

this subpart.

Transportation improvement program (TIP) means a staged, multiyear,

intermodal program of transportation projects covering a metropolitan

planning area which is consistent with the metropolitan transportation

plan, and developed pursuant to 23 CFR part 450.

Transportation plan means the official intermodal metropolitan

transportation plan that is developed through the metropolitan planning

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

part 450.

Transportation project is a highway project or a transit project.

Written commitment for the purposes of this subpart means a written

commitment that includes a description of the action to be taken; a

schedule for the completion of the action; a demonstration that funding

necessary to implement the action has been authorized by the

appropriating or authorizing body; and an acknowledgment that the

commitment is an enforceable obligation under the applicable

implementation plan.

Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.101 was

amended by adding, in alphabetical order, new definitions for ``1-hour

ozone NAAQS,'' ``8-hour ozone NAAQS,'' ``Donut areas,'' ``Isolated rural

nonattainment and maintenance areas,'' and ``Limited maintenance plan,''

and by revising definitions for ``Control strategy implementation plan

revision'' and ``Milestone'', effective Aug. 2, 2004. For the

convenience of the user, the added and revised text is set forth as

follows:

Sec. 93.101 Definitions.

* * * * *

1-hour ozone NAAQS means the 1-hour ozone national ambient air

quality standard codified at 40 CFR 50.9.

* * * * *

8-hour ozone NAAQS means the 8-hour ozone national ambient air

quality standard codified at 40 CFR 50.10.

* * * * *

Control strategy implementation plan revision is the implementation

plan which contains specific strategies for controlling the emissions of

and reducing ambient levels of pollutants in order to satisfy CAA

requirements for demonstrations of reasonable further progress and

attainment (including implementation plan revisions submitted to satisfy

CAA sections 172(c), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7),

187(g), 189(a)(1)(B), 189(b)(1)(A), and 189(d); sections 192(a) and

192(b), for nitrogen dioxide; and any other applicable CAA provision

requiring a demonstration of reasonable further progress or attainment).

* * * * *

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.

* * * * *

Isolated rural nonattainment and maintenance areas are areas that do

not contain or are not part of any metropolitan planning area as

designated under the transportation planning regulations. Isolated rural

areas do not have Federally required metropolitan transportation plans

or TIPs and do not have projects that are part of the emissions analysis

of any MPO's metropolitan transportation plan or TIP. Projects in such

areas are instead included in statewide transportation improvement

programs. These areas are not donut areas.

* * * * *

Limited maintenance plan is a maintenance plan that EPA has

determined meets EPA's limited maintenance plan policy criteria for a

given NAAQS and pollutant. To qualify for a limited maintenance plan,

for example, an area must have a design value that is significantly

below a given NAAQS, and it must be reasonable to expect that a NAAQS

violation will not result from any level of future motor vehicle

emissions growth.

* * * * *

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

for serious and above ozone nonattainment areas and PM<INF>10</INF>

nonattainment areas, respectively. For all other nonattainment areas, a

milestone consists of an emissions level and the date on which that

level is to be achieved as required by the applicable CAA provision for

reasonable further progress towards attainment.

* * * * *

[[Page 547]]

Sec. 93.102 Applicability.

(a) Action applicability.

(1) Except as provided for in paragraph (c) of this section or Sec.

93.126, conformity determinations are required for:

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

plans and transportation plan amendments developed pursuant to 23 CFR

part 450 or 49 CFR part 613 by an MPO or DOT;

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

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

an MPO or DOT; and

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

(2) Conformity determinations are not required under this subpart

for individual projects which are not FHWA/FTA projects. However, Sec.

93.121 applies to such projects if they are regionally significant.

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

apply in all nonattainment and maintenance areas for transportation-

related criteria pollutants for which the area is designated

nonattainment or has a maintenance plan.

(1) The provisions of this subpart apply with respect to emissions

of the following criteria pollutants: ozone, carbon monoxide (CO),

nitrogen dioxide (NO<INF>2</INF>), and particles with an aerodynamic

diameter less than or equal to a nominal 10 micrometers

(PM<INF>10</INF>).

(2) The provisions of this subpart apply with respect to emissions

of the following precursor pollutants:

(i) Volatile organic compounds (VOC) and nitrogen oxides

(NO<INF>X</INF>) in ozone areas;

(ii) NO<INF>X</INF> in NO<INF>2</INF> areas; and

(iii) VOC, NO<INF>X,</INF> and PM<INF>10</INF> in PM<INF>10</INF>

areas if the EPA Regional Administrator or the director of the State air

agency has made a finding that transportation-related precursor

emissions within the nonattainment area are a significant contributor to

the PM<INF>10</INF> nonattainment problem and has so notified the MPO

and DOT, or if the applicable implementation plan (or implementation

plan submission) establishes a budget for such emissions as part of the

reasonable further progress, attainment or maintenance strategy.

(3) The provisions of this subpart apply to maintenance areas for 20

years from the date EPA approves the area's request under section 107(d)

of the CAA for redesignation to attainment, unless the applicable

implementation plan specifies that the provisions of this subpart shall

apply for more than 20 years.

NEPA process and a conformity determination have been completed by DOT

may proceed toward implementation without further conformity

determinations unless more than three years have elapsed since the most

recent major step (NEPA process completion; start of final design;

acquisition of a significant portion of the right-of-way; or approval of

the plans, specifications and estimates) occurred. All phases of such

projects which were considered in the conformity determination are also

included, if those phases were for the purpose of funding final design,

right-of-way acquisition, construction, or any combination of these

phases.

(2) A new conformity determination for the project will be required

if there is a significant change in project design concept and scope, if

a supplemental environmental document for air quality purposes is

initiated, or if three years have elapsed since the most recent major

step to advance the project occurred.

(d) Grace period for new nonattainment areas. For areas or portions

of areas which have been continuously designated attainment or not

designated for any standard for ozone, CO, PM<INF>10</INF> or

NO<INF>2</INF> since 1990 and are subsequently redesignated to

nonattainment or designated nonattainment for any standard for any of

these pollutants, the provisions of this subpart shall not apply with

respect to that standard for 12 months following the effective date of

final designation to nonattainment for each standard for such pollutant.

[62 FR 43801, Aug. 15, 1997, as amended at 65 FR 18918, Apr. 10, 2000;

67 FR 50817, Aug. 6, 2002]

Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.102 was

amended by revising paragraphs (b)(1), (b)(2) introductory text and

[[Page 548]]

(b)(2)(iii);redesignating paragraph (b)(3) as paragraph (b)(4); adding a

new paragraph (b)(3); revising paragraph (c); and revising paragraph

(d), effective Aug. 2, 2004. For the convenience of the user, the added

and revised text is set forth as follows:

Sec. 93.102 Applicability.

* * * * *

(b) * * *

(1) The provisions of this subpart apply with respect to emissions

of the following criteria pollutants: ozone, carbon monoxide (CO),

nitrogen dioxide (NO<INF>2</INF>), particles with an aerodynamic

diameter less than or equal to a nominal 10 micrometers

(PM<INF>10</INF>); and particles with an aerodynamic diameter less than

or equal to a nominal 2.5 micrometers (PM<INF>2.5</INF>).

(2) The provisions of this subpart also apply with respect to

emissions of the following precursor pollutants:

* * * * *

(iii) VOC and/or NO<INF>X</INF> in PM<INF>10</INF> areas if the EPA

Regional Administrator or the director of the State air agency has made

a finding that transportation-related emissions of one or both of these

precursors within the nonattainment area are a significant contributor

to the PM<INF>10</INF> nonattainment problem and has so notified the MPO

and DOT, or if the applicable implementation plan (or implementation

plan submission) establishes an approved (or adequate) budget for such

emissions as part of the reasonable further progress, attainment or

maintenance strategy.

(3) The provisions of this subpart apply to PM<INF>2.5</INF>

nonattainment and maintenance areas with respect to PM<INF>2.5</INF>

from re-entrained road dust if the EPA Regional Administrator or the

director of the State air agency has made a finding that re-entrained

road dust emissions within the area are a significant contributor to the

PM<INF>2.5</INF> nonattainment problem and has so notified the MPO and

DOT, or if the applicable implementation plan (or implementation plan

submission) includes re-entrained road dust in the approved (or

adequate) budget as part of the reasonable further progress, attainment

or maintenance strategy. Re-entrained road dust emissions are produced

by travel on paved and unpaved roads (including emissions from anti-skid

and deicing materials).

* * * * *

funding actions, including NEPA approvals, for a project phase subject

to this subpart, a currently conforming transportation plan and TIP must

be in place at the time of project approval as described in Sec.

93.114, except as provided by Sec. 93.114(b).

(d) Grace period for new nonattainment areas. For areas or portions

of areas which have been continuously designated attainment or not

designated for any NAAQS for ozone, CO, PM<INF>10</INF>,

PM<INF>2.5</INF> or NO<INF>2</INF> since 1990 and are subsequently

redesignated to nonattainment or designated nonattainment for any NAAQS

for any of these pollutants, the provisions of this subpart shall not

apply with respect to that NAAQS for 12 months following the effective

date of final designation to nonattainment for each NAAQS for such

pollutant.

Sec. 93.103 Priority.

When assisting or approving any action with air quality-related

consequences, FHWA and FTA shall give priority to the implementation of

those transportation portions of an applicable implementation plan

prepared to attain and maintain the NAAQS. This priority shall be

consistent with statutory requirements for allocation of funds among

States or other jurisdictions.

Sec. 93.104 Frequency of conformity determinations.

(a) Conformity determinations and conformity redeterminations for

transportation plans, TIPs, and FHWA/FTA projects must be made according

to the requirements of this section and the applicable implementation

plan.

(b) Frequency of conformity determinations for transportation plans.

(1) Each new transportation plan must be demonstrated to conform before

the transportation plan is approved by the MPO or accepted by DOT.

(2) All transportation plan revisions must be found to conform

before the transportation plan revisions are approved by the MPO or

accepted by DOT, unless the revision merely adds or deletes exempt

projects listed in Sec. 93.126 or Sec. 93.127. The conformity

determination must be based on the transportation plan and the revision

taken as a whole.

(3) The MPO and DOT must determine the conformity of the

transportation plan no less frequently than every three years. If more

than three years elapse after DOT's conformity determination without the

MPO and DOT determining conformity of the

[[Page 549]]

transportation plan, the existing conformity determination will lapse.

improvement programs. (1) A new TIP must be demonstrated to conform

before the TIP is approved by the MPO or accepted by DOT.

(2) A TIP amendment requires a new conformity determination for the

entire TIP before the amendment is approved by the MPO or accepted by

DOT, unless the amendment merely adds or deletes exempt projects listed

in Sec. 93.126 or Sec. 93.127.

(3) The MPO and DOT must determine the conformity of the TIP no less

frequently than every three years. If more than three years elapse after

DOT's conformity determination without the MPO and DOT determining

conformity of the TIP, the existing conformity determination will lapse.

(4) After an MPO adopts a new or revised transportation plan,

conformity of the TIP must be redetermined by the MPO and DOT within six

months from the date of DOT's conformity determination for the

transportation plan, unless the new or revised plan merely adds or

deletes exempt projects listed in Sec. Sec. 93.126 and 93.127.

Otherwise, the existing conformity determination for the TIP will lapse.

(d) Projects. FHWA/FTA projects must be found to conform before they

are adopted, accepted, approved, or funded. Conformity must be

redetermined for any FHWA/FTA project if three years have elapsed since

the most recent major step to advance the project (NEPA process

completion; start of final design; acquisition of a significant portion

of the right-of-way; or approval of the plans, specifications and

estimates) occurred.

(e) Triggers for transportation plan and TIP conformity

determinations. Conformity of existing transportation plans and TIPs

must be redetermined within 18 months of the following, or the existing

conformity determination will lapse, and no new project-level conformity

determinations may be made until conformity of the transportation plan

and TIP has been determined by the MPO and DOT:

(1) November 24, 1993;

(2) The effective date of EPA's finding that motor vehicle emissions

budgets from an initially submitted control strategy implementation plan

or maintenance plan are adequate pursuant to Sec. 93.118(e) and can be

used for transportation conformity purposes;

(3) EPA approval of a control strategy implementation plan revision

or maintenance plan which establishes or revises a motor vehicle

emissions budget;

(4) EPA approval of an implementation plan revision that adds,

deletes, or changes TCMs; and

(5) EPA promulgation of an implementation plan which establishes or

revises a motor vehicle emissions budget or adds, deletes, or changes

TCMs.

[62 FR 43801, Aug. 15, 1997, as amended at 67 FR 50817, Aug. 6, 2002]

Effective Date Note: At 69 FR 44072, July 1, 2004, Sec. 93.104 was

amended by revising the first sentence in paragraph (b)(3); revising the

first sentence in paragraph (c)(3), and removing paragraph (c)(4);

revising paragraph (d); and removing paragraphs (e)(1) and (e)(4) and

redesignating paragraphs (e)(2), (e)(3) and (e)(5) as paragraphs (e)(1),

(e)(2) and (e)(3), and by revising newly redesignated paragraphs (e)(2)

and (e)(3), effective Aug. 2, 2004. For the convenience of the user, the

revised text is set forth as follows:

Sec. 93.104 Frequency of conformity determinations.

* * * * *

(b) * * *

(3) The MPO and DOT must determine the conformity of the

transportation plan (including a new regional emissions analysis) no

less frequently than every three years. * * *

(3) The MPO and DOT must determine the conformity of the TIP

(including a new regional emissions analysis) no less frequently than

every three years. * * *

(d) Projects. FHWA/FTA projects must be found to conform before they

are adopted, accepted, approved, or funded. Conformity must be

redetermined for any FHWA/FTA project if one of the following occurs: a

significant change in the project's design concept and scope; three

years elapse since the most recent major step to advance the project; or

initiation of a supplemental environmental document for air quality

purposes. Major steps include NEPA process completion; start of final

design; acquisition of a significant portion of the right-of-way;

[[Page 550]]

and, construction (including Federal approval of plans, specifications

and estimates).

(e) * * *

(2) The effective date of EPA approval of a control strategy

implementation plan revision or maintenance plan which establishes or

revises a motor vehicle emissions budget if that budget has not yet been

used in a conformity determination prior to approval; and

(3) The effective date of EPA promulgation of an implementation plan

which establishes or revises a motor vehicle emissions budget.

Sec. 93.105 Consultation.

(a) General. The implementation plan revision required under Sec.

51.390 of this chapter shall include procedures for interagency

consultation (Federal, State, and local), resolution of conflicts, and

public consultation as described in paragraphs (a) through (e) of this

section. Public consultation procedures will be developed in accordance

with the requirements for public involvement in 23 CFR part 450.

(1) The implementation plan revision shall include procedures to be

undertaken by MPOs, State departments of transportation, and DOT with

State and local air quality agencies and EPA before making conformity

determinations, and by State and local air agencies and EPA with MPOs,

State departments of transportation, and DOT in developing applicable

implementation plans.

(2) Before EPA approves the conformity implementation plan revision

required by Sec. 51.390 of this chapter, MPOs and State departments of

transportation must provide reasonable opportunity for consultation with

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

and EPA, including consultation on the issues described in paragraph

(c)(1) of this section, before making conformity determinations.

(b) Interagency consultation procedures: General factors. (1) States

shall provide well-defined consultation procedures in the implementation

plan whereby representatives of the MPOs, State and local air quality

planning agencies, State and local transportation agencies, and other

organizations with responsibilities for developing, submitting, or

implementing provisions of an implementation plan required by the CAA

must consult with each other and with local or regional offices of EPA,

FHWA, and FTA on the development of the implementation plan, the

transportation plan, the TIP, and associated conformity determinations.

(2) Interagency consultation procedures shall include at a minimum

the following general factors and the specific processes in paragraph

(i) The roles and responsibilities assigned to each agency at each

stage in the implementation plan development process and the

transportation planning process, including technical meetings;

(ii) The organizational level of regular consultation;

(iii) A process for circulating (or providing ready access to) draft

documents and supporting materials for comment before formal adoption or

publication;

(iv) The frequency of, or process for convening, consultation

meetings and responsibilities for establishing meeting agendas;

(v) A process for responding to the significant comments of involved

agencies; and

(vi) A process for the development of a list of the TCMs which are

in the applicable implementation plan.

Interagency consultation procedures shall also include the following

specific processes:

(1) A process involving the MPO, State and local air quality

planning agencies, State and local transportation agencies, EPA, and DOT

for the following:

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

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

emissions analyses;

(ii) Determining which minor arterials and other transportation

projects should be considered ``regionally significant'' for the

purposes of regional emissions analysis (in addition to those

functionally classified as principal arterial or higher or fixed

guideway systems or extensions that offer an alternative to regional

highway travel), and which projects should be considered to have a

significant change in design

[[Page 551]]

concept and scope from the transportation plan or TIP;

(iii) Evaluating whether projects otherwise exempted from meeting

the requirements of this subpart (see Sec. Sec. 93.126 and 93.127)

should be treated as non-exempt in cases where potential adverse

emissions impacts may exist for any reason;

(iv) Making a determination, as required by Sec. 93.113(c)(1),

whether past obstacles to implementation of TCMs which are behind the

schedule established in the applicable implementation plan have been

identified and are being overcome, and whether State and local agencies

with influence over approvals or funding for TCMs are giving maximum

priority to approval or funding for TCMs. This process shall also

consider whether delays in TCM implementation necessitate revisions to

the applicable implementation plan to remove TCMs or substitute TCMs or

other emission reduction measures;

(v) Identifying, as required by Sec. 93.123(b), projects located at

sites in PM<INF>10</INF> nonattainment areas which have vehicle and

roadway emission and dispersion characteristics which are essentially

identical to those at sites which have violations verified by

monitoring, and therefore require quantitative PM<INF>10</INF> hot-spot

analysis;

(vi) Notification of transportation plan or TIP revisions or

amendments which merely add or delete exempt projects listed in Sec.

93.126 or Sec. 93.127; and

(vii) Choosing conformity tests and methodologies for isolated rural

nonattainment and maintenance areas, as required by Sec.

93.109(g)(2)(iii).

(2) A process involving the MPO and State and local air quality

planning agencies and transportation agencies for the following:

(i) Evaluating events which will trigger new conformity

determinations in addition to those triggering events established in

Sec. 93.104; and

(ii) Consulting on emissions analysis for transportation activities

which cross the borders of MPOs or nonattainment areas or air basins.

(3) Where the metropolitan planning area does not include the entire

nonattainment or maintenance area, a process involving the MPO and the

State department of transportation for cooperative planning and analysis

for purposes of determining conformity of all projects outside the

metropolitan area and within the nonattainment or maintenance area.

(4) A process to ensure that plans for construction of regionally

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

for which alternative locations, design concept and scope, or the no-

build option are still being considered), including those by recipients

of funds designated under title 23 U.S.C. or the Federal Transit Laws,

are disclosed to the MPO on a regular basis, and to ensure that any

changes to those plans are immediately disclosed.

(5) A process involving the MPO and other recipients of funds

designated under title 23 U.S.C. or the Federal Transit Laws for

assuming the location and design concept and scope of projects which are

disclosed to the MPO as required by paragraph (c)(4) of this section but

whose sponsors have not yet decided these features, in sufficient detail

to perform the regional emissions analysis according to the requirements

of Sec. 93.122.

(6) A process for consulting on the design, schedule, and funding of

research and data collection efforts and regional transportation model

development by the MPO (e.g., household/ travel transportation surveys).

(7) A process for providing final documents (including applicable

implementation plans and implementation plan revisions) and supporting

information to each agency after approval or adoption. This process is

applicable to all agencies described in paragraph (a)(1) of this

section, including Federal agencies.

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

State agencies and an MPO shall be escalated to the Governor if they

cannot be resolved by the heads of the involved agencies. The State air

agency has 14 calendar days to appeal to the Governor after the State

DOT or MPO has notified the State air agency head of the resolution of

his or her comments. The implementation plan revision required by Sec.

51.390 of this chapter shall define the procedures for starting the 14-

day clock. If the State air agency

[[Page 552]]

appeals to the Governor, the final conformity determination must have

the concurrence of the Governor. If the State air agency does not appeal

to the Governor within 14 days, the MPO or State department of

transportation may proceed with the final conformity determination. The

Governor may delegate his or her role in this process, but not to the

head or staff of the State or local air agency, State department of

transportation, State transportation commission or board, or an MPO.

(e) Public consultation procedures. Affected agencies making

conformity determinations on transportation plans, programs, and

projects shall establish a proactive public involvement process which

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

providing reasonable public access to technical and policy information

considered by the agency at the beginning of the public comment period

and prior to taking formal action on a conformity determination for all

transportation plans and TIPs, consistent with these requirements and

those of 23 CFR 450.316(b). Any charges imposed for public inspection

and copying should be consistent with the fee schedule contained in 49

CFR 7.95. In addition, these agencies must specifically address in

writing all public comments that known plans for a regionally

significant project which is not receiving FHWA or FTA funding or

approval have not been properly reflected in the emissions analysis

supporting a proposed conformity finding for a transportation plan or

TIP. These agencies shall also provide opportunity for public

involvement in conformity determinations for projects where otherwise

required by law.

Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.105 was

amended by revising the reference ``Sec. 93.109(g)(2)(iii)'' to read

``Sec. 93.109(l)(2)(iii).'', effective Aug. 2, 2004.

Sec. 93.106 Content of transportation plans.

(a) Transportation plans adopted after January 1, 1997 in serious,

severe, or extreme ozone nonattainment areas and in serious CO

nonattainment areas. If the metropolitan planning area contains an

urbanized area population greater than 200,000, the transportation plan

must specifically describe the transportation system envisioned for

certain future years which shall be called horizon years.

(1) The agency or organization developing the transportation plan

may choose any years to be horizon years, subject to the following

restrictions:

(i) Horizon years may be no more than 10 years apart;

(ii) The first horizon year may be no more than 10 years from the

base year used to validate the transportation demand planning model;

(iii) If the attainment year is in the time span of the

transportation plan, the attainment year must be a horizon year; and

(iv) The last horizon year must be the last year of the

transportation plan's forecast period.

(2) For these horizon years:

(i) The transportation plan shall quantify and document the

demographic and employment factors influencing expected transportation

demand, including land use forecasts, in accordance with implementation

plan provisions and the consultation requirements specified by Sec.

93.105;

(ii) The highway and transit system shall be described in terms of

the regionally significant additions or modifications to the existing

transportation network which the transportation plan envisions to be

operational in the horizon years. Additions and modifications to the

highway network shall be sufficiently identified to indicate

intersections with existing regionally significant facilities, and to

determine their effect on route options between transportation analysis

zones. Each added or modified highway segment shall also be sufficiently

identified in terms of its design concept and design scope to allow

modeling of travel times under various traffic volumes, consistent with

the modeling methods for area-wide transportation analysis in use by the

MPO. Transit facilities, equipment, and services envisioned for the

future shall be identified in terms of design concept, design scope, and

operating policies that are sufficient for modeling of their transit

ridership. Additions and modifications to the transportation network

shall be described

[[Page 553]]

sufficiently to show that there is a reasonable relationship between

expected land use and the envisioned transportation system; and

(iii) Other future transportation policies, requirements, services,

and activities, including intermodal activities, shall be described.

(b) Moderate areas reclassified to serious. Ozone or CO

nonattainment areas which are reclassified from moderate to serious and

have an urbanized population greater than 200,000 must meet the

requirements of paragraph (a) of this section within two years from the

date of reclassification.

other areas must meet the requirements of paragraph (a) of this section

at least to the extent it has been the previous practice of the MPO to

prepare plans which meet those requirements. Otherwise, the

transportation system envisioned for the future must be sufficiently

described within the transportation plans so that a conformity

determination can be made according to the criteria and procedures of

Sec. Sec. 93.109 through 93.119.

(d) Savings. The requirements of this section supplement other

requirements of applicable law or regulation governing the format or

content of transportation plans.

Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.106 was

amended by revising paragraph (b), effective Aug. 2, 2004. For the

convenience of the user, the revised text is set forth as follows:

Sec. 93.106 Content of transportation plans.

* * * * *

(b) Two-year grace period for transportation plan requirements in

certain ozone and CO areas. The requirements of paragraph (a) of this

section apply to such areas or portions of such areas that have

previously not been required to meet these requirements for any existing

NAAQS two years from the following:

(1) The effective date of EPA's reclassification of an ozone or CO

nonattainment area that has an urbanized area population greater than

200,000 to serious or above;

(2) The official notice by the Census Bureau that determines the

urbanized area population of a serious or above ozone or CO

nonattainment area to be greater than 200,000; or,

(3) The effective date of EPA's action that classifies a newly

designated ozone or CO nonattainment area that has an urbanized area

population greater than 200,000 as serious or above.

* * * * *

Sec. 93.107 Relationship of transportation plan and TIP conformity

with the NEPA process.

The degree of specificity required in the transportation plan and

the specific travel network assumed for air quality modeling do not

preclude the consideration of alternatives in the NEPA process or other

project development studies. Should the NEPA process result in a project

with design concept and scope significantly different from that in the

transportation plan or TIP, the project must meet the criteria in

Sec. Sec. 93.109 through 93.119 for projects not from a TIP before NEPA

process completion.

Sec. 93.108 Fiscal constraints for transportation plans and TIPs.

Transportation plans and TIPs must be fiscally constrained

consistent with DOT's metropolitan planning regulations at 23 CFR part

450 in order to be found in conformity.

Sec. 93.109 Criteria and procedures for determining conformity of

transportation plans, programs, and projects: General.

(a) In order for each transportation plan, program, and FHWA/FTA

project to be found to conform, the MPO and DOT must demonstrate that

the applicable criteria and procedures in this subpart are satisfied,

and the MPO and DOT must comply with all applicable conformity

requirements of implementation plans and of court orders for the area

which pertain specifically to conformity. The criteria for making

conformity determinations differ based on the action under review

(transportation plans, TIPs, and FHWA/FTA projects), the relevant

pollutant(s), and the status of the implementation plan.

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

in Sec. Sec. 93.110 through 93.119 which apply for transportation

plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (f) of this

section explain when the

[[Page 554]]

budget, emission reduction, and hot spot tests are required for each

pollutant. Paragraph (g) of this section addresses isolated rural

nonattainment and maintenance areas. Table 1 follows:

Table 1--Conformity Criteria

------------------------------------------------------------------------

All Actions at all times:

Sec. 93.110 Latest planning assumptions

Sec. 93.111 Latest emissions model

Sec. 93.112 Consultation

Transportation Plan:

Sec. 93.113(b) TCMs

Sec. 93.118 or Sec. 93.119 Emissions budget or Emission

reduction

TIP:

Sec. 93.113(c) TCMs

Sec. 93.118 or Sec. 93.119 Emissions budget or Emission

reduction

Project (From a Conforming Plan and

TIP):

Sec. 93.114 Currently conforming plan and

TIP

Sec. 93.115 Project from a conforming plan

and TIP

Sec. 93.116 CO and PM10 hot spots

Sec. 93.117 PM10 control measures

Project (Not From a Conforming Plan and

TIP):

Sec. 93.113(d) TCMs

Sec. 93.114 Currently conforming plan and

TIP

Sec. 93.116 CO and PM10 hot spots

Sec. 93.117 PM10 control measures

Sec. 93.118 or Sec. 93.119 Emissions budget or Emission

reduction

------------------------------------------------------------------------

criteria listed in Table 1 in paragraph (b) of this section that are

required to be satisfied at all times, in ozone nonattainment and

maintenance areas conformity determinations must include a demonstration

that the budget and/or emission reduction tests are satisfied as

described in the following:

(1) In ozone nonattainment and maintenance areas the budget test

must be satisfied as required by Sec. 93.118 for conformity

determinations made:

(i) 45 days after a control strategy implementation plan revision or

maintenance plan has been submitted to EPA, unless EPA has declared the

motor vehicle emissions budget inadequate for transportation conformity

purposes; or

(ii) After EPA has declared that the motor vehicle emissions budget

in a submitted control strategy implementation plan revision or

maintenance plan is adequate for transportation conformity purposes.

(2) In ozone nonattainment areas that are required to submit a

control strategy implementation plan revision (usually moderate and

above areas), the emission reduction tests must be satisfied as required

by Sec. 93.119 for conformity determinations made:

(i) During the first 45 days after a control strategy implementation

plan revision or maintenance plan has been submitted to EPA, unless EPA

has declared a motor vehicle emissions budget adequate for

transportation conformity purposes; or

(ii) If EPA has declared the motor vehicle emissions budget in a

submitted control strategy implementation plan revision or maintenance

plan inadequate for transportation conformity purposes, and there is no

previously established motor vehicle emissions budget in the approved

implementation plan or a previously submitted control strategy

implementation plan revision or maintenance plan.

(3) An ozone nonattainment area must satisfy the emission reduction

test for NO<INF>X</INF>, as required by Sec. 93.119, if the

implementation plan or plan submission that is applicable for the

purposes of conformity determinations is a 15% plan or Phase I

attainment demonstration that does not include a motor vehicle emissions

budget for NO<INF>X</INF>. The implementation plan will be considered to

establish a motor vehicle emissions budget for NO<INF>X</INF> if the

implementation plan or plan submission contains an explicit

NO<INF>X</INF> motor vehicle emissions budget that is intended to act as

a ceiling on future NO<INF>X</INF> emissions, and the NO<INF>X</INF>

motor vehicle emissions budget is a net reduction from NO<INF>X</INF>

emissions levels in 1990.

(4) Ozone nonattainment areas that have not submitted a maintenance

plan and that are not required to submit a control strategy

implementation plan revision (usually marginal and below areas) must

satisfy one of the following requirements:

(i) The emission reduction tests required by Sec. 93.119; or

(ii) The State shall submit to EPA an implementation plan revision

that contains motor vehicle emissions budget(s) and an attainment

demonstration,

[[Page 555]]

and the budget test required by Sec. 93.118 must be satisfied using the

submitted motor vehicle emissions budget(s) (as described in paragraph

(c)(1) of this section).

(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,

moderate and above ozone nonattainment areas with three years of clean

data that have not submitted a maintenance plan and that EPA has

determined are not subject to the Clean Air Act reasonable further

progress and attainment demonstration requirements must satisfy one of

the following requirements:

(i) The emission reduction tests as required by Sec. 93.119;

(ii) The budget test as required by Sec. 93.118, using the motor

vehicle emissions budgets in the submitted control strategy

implementation plan (subject to the timing requirements of paragraph

(c)(1) of this section); or

(iii) The budget test as required by Sec. 93.118, using the motor

vehicle emissions of ozone precursors in the most recent year of clean

data as motor vehicle emissions budgets, if such budgets are established

by the EPA rulemaking that determines that the area has clean data.

(d) CO nonattainment and maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b) of this section that are

required to be satisfied at all times, in CO nonattainment and

maintenance areas conformity determinations must include a demonstration

that the hot spot, budget and/or emission reduction tests are satisfied

as described in the following:

(1) FHWA/FTA projects in CO nonattainment or maintenance areas must

satisfy the hot spot test required by Sec. 93.116(a) at all times.

Until a CO attainment demonstration or maintenance plan is approved by

EPA, FHWA/FTA projects must also satisfy the hot spot test required by

Sec. 93.116(b).

(2) In CO nonattainment and maintenance areas the budget test must

be satisfied as required by Sec. 93.118 for conformity determinations

made:

(i) 45 days after a control strategy implementation plan revision or

maintenance plan has been submitted to EPA, unless EPA has declared the

motor vehicle emissions budget inadequate for transportation conformity

purposes; or

(ii) After EPA has declared that the motor vehicle emissions budget

in a submitted control strategy implementation plan revision or

maintenance plan is adequate for transportation conformity purposes.

(3) Except as provided in paragraph (d)(4) of this section, in CO

nonattainment areas the emission reduction tests must be satisfied as

required by Sec. 93.119 for conformity determinations made:

(i) During the first 45 days after a control strategy implementation

plan revision or maintenance plan has been submitted to EPA, unless EPA

has declared a motor vehicle emissions budget adequate for

transportation conformity purposes; or

(ii) If EPA has declared the motor vehicle emissions budget in a

submitted control strategy implementation plan revision or maintenance

plan inadequate for transportation conformity purposes, and there is no

previously established motor vehicle emissions budget in the approved

implementation plan or a previously submitted control strategy

implementation plan revision or maintenance plan.

(4) CO nonattainment areas that have not submitted a maintenance

plan and that are not required to submit an attainment demonstration

(e.g., moderate CO areas with a design value of 12.7 ppm or less or not

classified CO areas) must satisfy one of the following requirements:

(i) The emission reduction tests required by Sec. 93.119; or

(ii) The State shall submit to EPA an implementation plan revision

that contains motor vehicle emissions budget(s) and an attainment

demonstration, and the budget test required by Sec. 93.118 must be

satisfied using the submitted motor vehicle emissions budget(s) (as

described in paragraph (d)(2) of this section).

(e) PM10 nonattainment and maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b) of this section that are

required to be satisfied at all times, in PM<INF>10</INF> nonattainment

and maintenance areas conformity determinations must include a

[[Page 556]]

demonstration that the hot spot, budget and/or emission reduction tests

are satisfied as described in the following:

(1) FHWA/FTA projects in PM<INF>10</INF> nonattainment or

maintenance areas must satisfy the hot spot test required by Sec.

93.116(a).

(2) In PM<INF>10</INF> nonattainment and maintenance areas the

budget test must be satisfied as required by Sec. 93.118 for conformity

determinations made:

(i) 45 days after a control strategy implementation plan revision or

maintenance plan has been submitted to EPA, unless EPA has declared the

motor vehicle emissions budget inadequate for transportation conformity

purposes; or

(ii) After EPA has declared that the motor vehicle emissions budget

in a submitted control strategy implementation plan revision or

maintenance plan is adequate for transportation conformity purposes.

(3) In PM<INF>10</INF> nonattainment areas the emission reduction

tests must be satisfied as required by Sec. 93.119 for conformity

determinations made:

(i) During the first 45 days after a control strategy implementation

plan revision or maintenance plan has been submitted to EPA, unless EPA

has declared a motor vehicle emissions budget adequate for

transportation conformity purposes;

(ii) If EPA has declared the motor vehicle emissions budget in a

submitted control strategy implementation plan revision or maintenance

plan inadequate for transportation conformity purposes, and there is no

previously established motor vehicle emissions budget in the approved

implementation plan or a previously submitted control strategy

implementation plan revision or maintenance plan; or

(iii) If the submitted implementation plan revision is a

demonstration of impracticability under CAA section 189(a)(1)(B)(ii) and

does not demonstrate attainment.

(f) NO2 nonattainment and maintenance areas. In addition to the

criteria listed in Table 1 in paragraph (b) of this section that are

required to be satisfied at all times, in NO<INF>2</INF> nonattainment

and maintenance areas conformity determinations must include a

demonstration that the budget and/or emission reduction tests are

satisfied as described in the following:

(1) In NO<INF>2</INF> nonattainment and maintenance areas the budget

test must be satisfied as required by Sec. 93.118 for conformity

determinations made:

(i) 45 days after a control strategy implementation plan revision or

maintenance plan has been submitted to EPA, unless EPA has declared the

motor vehicle emissions budget inadequate for transportation conformity

purposes; or

(ii) After EPA has declared that the motor vehicle emissions budget

in a submitted control strategy implementation plan revision or

maintenance plan is adequate for transportation conformity purposes.

(2) In NO<INF>2</INF> nonattainment areas the emission reduction

tests must be satisfied as required by Sec. 93.119 for conformity

determinations made:

(i) During the first 45 days after a control strategy implementation

plan revision or maintenance plan has been submitted to EPA, unless EPA

has declared a motor vehicle emissions budget adequate for

transportation conformity purposes; or

(ii) If EPA has declared the motor vehicle emissions budget in a

submitted control strategy implementation plan revision or maintenance

plan inadequate for transportation conformity purposes, and there is no

previously established motor vehicle emissions budget in the approved

implementation plan or a previously submitted control strategy

implementation plan revision or maintenance plan.

(g) Isolated rural nonattainment and maintenance areas. This

paragraph applies to any nonattainment or maintenance area (or portion

thereof) which does not have a metropolitan transportation plan or TIP

and whose projects are not part of the emissions analysis of any MPO's

metropolitan transportation plan or TIP. This paragraph does not apply

to ``donut'' areas which are outside the metropolitan planning boundary

and inside the nonattainment/maintenance area boundary.

(1) FHWA/FTA projects in all isolated rural nonattainment and

maintenance areas must satisfy the requirements of Sec. Sec. 93.110,

93.111, 93.112, 93.113(d), 93.116,

[[Page 557]]

and 93.117. Until EPA approves the control strategy implementation plan

or maintenance plan for a rural CO nonattainment or maintenance area,

FHWA/FTA projects must also satisfy the requirements of Sec. 93.116(b)

(``Localized CO and PM<INF>10</INF> violations (hot spots)'').

(2) Isolated rural nonattainment and maintenance areas are subject

to the budget and/or emission reduction tests as described in paragraphs

(i) When the requirements of Sec. Sec. 93.118 and 93.119 apply to

isolated rural nonattainment and maintenance areas, references to

``transportation plan'' or ``TIP'' should be taken to mean those

projects in the statewide transportation plan or statewide TIP which are

in the rural nonattainment or maintenance area.

(ii) In isolated rural nonattainment and maintenance areas that are

subject to Sec. 93.118, FHWA/FTA projects must be consistent with motor

vehicle emissions budget(s) for the years in the timeframe of the

attainment demonstration or maintenance plan. For years after the

attainment year (if a maintenance plan has not been submitted) or after

the last year of the maintenance plan, FHWA/FTA projects must satisfy

one of the following requirements:

(A) Sec. 93.118;

(B) Sec. 93.119 (including regional emissions analysis for

NO<INF>X</INF> in all ozone nonattainment and maintenance areas,

notwithstanding Sec. 93.119(d)(2)); or

quality modeling technique used in the attainment demonstration or

maintenance plan, the FHWA/FTA project, in combination with all other

regionally significant projects expected in the area in the timeframe of

the statewide transportation plan, must not cause or contribute to any

new violation of any standard in any areas; increase the frequency or

severity of any existing violation of any standard in any area; or delay

timely attainment of any standard or any required interim emission

reductions or other milestones in any area. Control measures assumed in

the analysis must be enforceable.

(iii) The choice of requirements in paragraph (g)(2)(ii) of this

section and the methodology used to meet the requirements of paragraph

(g)(2)(ii)(C) of this section must be determined through the interagency

consultation process required in Sec. 93.105(c)(1)(vii) through which

the relevant recipients of title 23 U.S.C. or Federal Transit Laws

funds, the local air quality agency, the State air quality agency, and

the State department of transportation should reach consensus about the

option and methodology selected. EPA and DOT must be consulted through

this process as well. In the event of unresolved disputes, conflicts may

be escalated to the Governor consistent with the procedure in Sec.

93.105(d), which applies for any State air agency comments on a

conformity determination.

Effective Date Note: At 69 FR 44073, July 1, 2004, Sec. 93.109 was

amended by:

a. Revising the paragraph (b) introductory text;

b. In Table 1 of paragraph (b), revising the entry for ``Sec.

93.118 or Sec. 93.119'' under ``Transportation Plan:'' and the entry

for ``Sec. 93.118 or Sec. 93.119'' under ``TIP:'', and revising the

entry for ``Sec. 93.117'' under ``Project (From a Conforming Plan and

TIP):'' and the entries for ``Sec. 93.117'' and ``Sec. 93.118 or Sec.

93.119'' under ``Project (Not From a Conforming Plan and TIP):''

c. Revising paragraph (c);

d. Redesignating paragraphs (d), (e), (f) and (g) as paragraphs (f),

(g), (h) and (l);

e. Adding new paragraphs (d), (e), (i), (j) and (k);

f. Revising newly redesignated paragraphs (f) introductory text,

(f)(2), (f)(3) and (f)(4)(i) and (ii);

g. Revising newly redesignated paragraphs (g) introductory text,

(g)(2), and (g)(3);

h. Revising newly redesignated paragraph (h); and

i. Revising newly redesignated paragraph (l)(2) introductory text;

in newly redesignated paragraph (l)(2)(ii)(B), revising ``Sec.

93.119(d)(2)'' to read ``Sec. 93.119(f)(2)'' and, in newly redesignated

paragraph (l)(2)(iii), revising ``paragraph (g)(2)(ii)'' and ``paragraph

(g)(2)(ii)(C)'' to read ``paragraph (l)(2)(ii)'' and ``paragraph

(l)(2)(ii)(C)'', respectively., effective Aug. 2, 2004. For the

convenience of the user, the added and revised text is set forth as

follows:

Sec. 93.109 Criteria and procedures for determining conformity of

transportation plans, programs, and projects: General.

* * * * *

[[Page 558]]

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

in Sec. Sec. 93.110 through 93.119 which apply for transportation

plans, TIPs, and FHWA/FTA projects. Paragraphs (c) through (i) of this

section explain when the budget, interim emissions, and hot-spot tests

are required for each pollutant and NAAQS. Paragraph (j) of this section

addresses conformity requirements for areas with approved or adequate

limited maintenance plans. Paragraph (k) of this section addresses

nonattainment and maintenance areas which EPA has determined have

insignificant motor vehicle emissions. Paragraph (l) of this section

addresses isolated rural nonattainment and maintenance areas. Table 1

follows:

Table 1.--Conformity Criteria

------------------------------------------------------------------------

* * * * * * *

Transportation Plan:

* * * * * * *

Sec. 93.118 and/or Sec. Emissions budget and/or Interim

93.119. emissions.

* * * * * * *

TIP:

* * * * * * *

Sec. 93.118 and/or Sec. Emissions budget and/or Interim

93.119. emissions.

* * * * * * *

Project (From a Conforming Plan

and TIP):

* * * * * * *

Sec. 93.117................ PM10 and PM2.5 control measures.

* * * * * * *

Project (Not From a Conforming

Plan and TIP):

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Sec. 93.117................ PM10 and PM2.5 control measures.

Sec. 93.118 and/or Sec. Emissions budget and/or Interim

93.119. emissions.

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paragraph applies when an area is nonattainment or maintenance for the

1-hour ozone NAAQS (i.e., until the effective date of any revocation of

the 1-hour ozone NAAQS for an area). In addition to the criteria listed

in Table 1 in paragraph (b) of this section that are required to be

satisfied at all times, in such ozone nonattainment and maintenance

areas conformity determinations must include a demonstration that the

budget and/or interim emissions tests are satisfied as described in the

following:

(1) In all 1-hour ozone nonattainment and maintenance areas the

budget test must be satisfied as required by Sec. 93.118 for conformity

determinations made on or after:

(i) The effective date of EPA's finding that a motor vehicle

emissions budget in a submitted control strategy implementation plan

revision or maintenance plan for the 1-hour ozone NAAQS is adequate for

transportation conformity purposes;

(ii) The publication date of EPA's approval of such a budget in the

Federal Register; or

(iii) The effective date of EPA's approval of such a budget in the

Federal Register, if such approval is completed through direct final

rulemaking.

(2) In ozone nonattainment areas that are required to submit a

control strategy implementation plan revision for the 1-hour ozone NAAQS

(usually moderate and above areas), the interim emissions tests must be

satisfied as required by Sec. 93.119 for conformity determinations made

when there is no approved motor vehicle emissions budget from an

applicable implementation plan for the 1-hour ozone NAAQS and no

adequate motor vehicle emissions budget from a submitted control

strategy implementation plan revision or maintenance plan for the 1-hour

ozone NAAQS.

(3) An ozone nonattainment area must satisfy the interim emissions

test for NO<INF>X</INF>, as required by Sec. 93.119, if the

implementation plan or plan submission that is applicable for the

purposes of conformity determinations is a 15% plan or Phase I

attainment demonstration that does not include a motor vehicle emissions

budget for NO<INF>X</INF>. The implementation plan for the 1-hour ozone

NAAQS will be considered to establish a motor vehicle emissions budget

for NO<INF>X</INF> if the implementation plan or plan submission

contains an explicit NO<INF>X</INF> motor vehicle emissions budget that

is intended to act as a ceiling on future NO<INF>X</INF>

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emissions, and the NO<INF>X</INF> motor vehicle emissions budget is a

net reduction from NO<INF>X</INF> emissions levels in 1990.

(4) Ozone nonattainment areas that have not submitted a maintenance

plan and that are not required to submit a control strategy

implementation plan revision for the 1-hour ozone NAAQS (usually

marginal and below areas) must satisfy one of the following

requirements:

(i) The interim emissions tests required by Sec. 93.119; or

(ii) The State shall submit to EPA an implementation plan revision

for the 1-hour ozone NAAQS that contains motor vehicle emissions

budget(s) and a reasonable further progress or attainment demonstration,

and the budget test required by Sec. 93.118 must be satisfied using the

adequate or approved motor vehicle emissions budget(s) (as described in

paragraph (c)(1) of this section).

(5) Notwithstanding paragraphs (c)(1) and (c)(2) of this section,

moderate and above ozone nonattainment areas with three years of clean

data for the 1-hour ozone NAAQS that have not submitted a maintenance

plan and that EPA has determined are not subject to the Clean Air Act

reasonable further progress and attainment demonstration requirements

for the 1-hour ozone NAAQS must satisfy one of the following

requirements:

(i) The interim emissions tests as required by Sec. 93.119;

(ii) The budget test as required by Sec. 93.118, using the adequate

or approved motor vehicle emissions budgets in the submitted or

applicable control strategy implementation plan for the 1-hour ozone

NAAQS (subject to the timing requirements of paragraph (c)(1) of this

section); or

(iii) The budget test as required by Sec. 93.118, using the motor

vehicle emissions of ozone precursors in the most recent year of clean

data as motor vehicle emissions budgets, if such budgets are established

by the EPA rulemaking that determines that the area has clean data for

the 1-hour ozone NAAQS.

(d) 8-hour ozone NAAQS nonattainment and maintenance areas without

motor vehicle emissions budgets for the 1-hour ozone NAAQS for any

portion of the 8-hour nonattainment area. This paragraph applies to

areas that were never designated nonattainment for the 1-hour ozone

NAAQS and areas that were designated nonattainment for the 1-hour ozone

NAAQS but that never submitted a control strategy SIP or maintenance

plan with approved or adequate motor vehicle emissions budgets. This

paragraph applies 1 year after the effective date of EPA's nonattainment

designation for the 8-hour ozone NAAQS for an area, according to Sec.

93.102(d). In addition to the criteria listed in Table 1 in paragraph

(b) of this section that are required to be satisfied at all times, in

such 8-hour ozone nonattainment and maintenance areas conformity

determinations must include a demonstration that the budget and/or

interim emissions tests are satisfied as described in the following:

(1) In such 8-hour ozone nonattainment and maintenance areas the

budget test must be satisfied as required by Sec. 93.118 for conformity

determinations made on or after:

(i) The effective date of EPA's finding that a motor vehicle

emissions budget in a submitted control strategy implementation plan

revision or maintenance plan for the 8-hour ozone NAAQS is adequate for

transportation conformity purposes;

(ii) The publication date of EPA's approval of such a budget in the

Federal Register; or

(iii) The effective date of EPA's approval of such a budget in the

Federal Register, if such approval is completed through direct final

rulemaking.

(2) In ozone nonattainment areas that are required to submit a

control strategy implementation plan revision for the 8-hour ozone NAAQS

(usually moderate and above and certain Clean Air Act, part D, subpart 1

areas), the interim emissions tests must be satisfied as required by

Sec. 93.119 for conformity determinations made when there is no

approved motor vehicle emissions budget from an applicable

implementation plan for the 8-hour ozone NAAQS and no adequate motor

vehicle emissions budget from a submitted control strategy

implementation plan revision or maintenance plan for the 8-hour ozone

NAAQS.

(3) Such an 8-hour ozone nonattainment area must satisfy the interim

emissions test for NO<INF>X</INF>, as required by Sec. 93.119, if the

implementation plan or plan submission that is applicable for the

purposes of conformity determinations is a 15% plan or other control

strategy SIP that addresses reasonable further progress that does not

include a motor vehicle emissions budget for NO<INF>X</INF>. The

implementation plan for the 8-hour ozone NAAQS will be considered to

establish a motor vehicle emissions budget for NO<INF>X</INF> if the

implementation plan or plan submission contains an explicit

NO<INF>X</INF> motor vehicle emissions budget that is intended to act as

a ceiling on future NO<INF>X</INF> emissions, and the NO<INF>X</INF>

motor vehicle emissions budget is a net reduction from NO<INF>X</INF>

emissions levels in 2002.

(4) Ozone nonattainment areas that have not submitted a maintenance

plan and that are not required to submit a control strategy

implementation plan revision for the 8-hour ozone NAAQS (usually

marginal and certain Clean Air Act, part D, subpart 1 areas) must

satisfy one of the following requirements:

(i) The interim emissions tests required by Sec. 93.119; or

(ii) The State shall submit to EPA an implementation plan revision

for the 8-hour ozone NAAQS that contains motor vehicle emissions

budget(s) and a reasonable further

[[Page 560]]

progress or attainment demonstration, and the budget test required by

Sec. 93.118 must be satisfied using the adequate or approved motor

vehicle emissions budget(s) (as described in paragraph (d)(1) of this

section).

(5) Notwithstanding paragraphs (d)(1) and (d)(2) of this section,

ozone nonattainment areas with three years of clean data for the 8-hour

ozone NAAQS that have not submitted a maintenance plan and that EPA has

determined are not subject to the Clean Air Act reasonable further

progress and attainment demonstration requirements for the 8-hour ozone

NAAQS must satisfy one of the following requirements:

(i) The interim emissions tests as required by Sec. 93.119;

(ii) The budget test as required by Sec. 93.118, using the adequate

or approved motor vehicle emissions budgets in the submitted or

applicable control strategy implementation plan for the 8-hour ozone

NAAQS (subject to the timing requirements of paragraph (d)(1) of this

section); or

(iii) The budget test as required by Sec. 93.118, using the motor

vehicle emissions of ozone precursors in the most recent year of clean

data as motor vehicle emissions budgets, if such budgets are established

by the EPA rulemaking that determines that the area has clean data for

the 8-hour ozone NAAQS.

(e) 8-hour ozone NAAQS nonattainment and maintenance areas with

motor vehicle emissions budgets for the 1-hour ozone NAAQS that cover

all or a portion of the 8-hour nonattainment area. This provision

applies 1 year after the effective date of EPA's nonattainment