--- kind: "range" citation: "40 C.F.R. §§ 93.109–93.119" title: "40" from: "93.109" to: "93.119" count: 11 url: "https://uscodex.org/cfr/40/93.109..93.119" --- # §93.109. Criteria and procedures for determining conformity of transportation plans, programs, and projects: General. - (a) In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and DOT must demonstrate that the applicable criteria and procedures in this subpart are satisfied, and the MPO and DOT must comply with all applicable conformity requirements of implementation plans and of court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs, and FHWA/FTA projects), the relevant pollutant(s), and the status of the implementation plan. - (b) Table 1 in this paragraph indicates the criteria and procedures in [§§ 93.110 through 93.119](/cfr/40/93.110..93.119.md) which apply for transportation plans, TIPs, and FHWA/FTA projects. [Paragraph (c)](#c) of this section explains when the budget and interim emissions tests are required for each pollutant and NAAQS. [Paragraph (d)](#d) of this section explains when a hot-spot test is required. [Paragraph (e)](#e) of this section addresses conformity requirements for areas with approved or adequate limited maintenance plans. [Paragraph (f)](#f) of this section addresses nonattainment and maintenance areas which EPA has determined have insignificant motor vehicle emissions. [Paragraph (g)](#g) of this section addresses isolated rural nonattainment and maintenance areas. Table 1 follows: - (c) **Regional conformity test requirements for all nonattainment and maintenance areas.** This provision applies one year after the effective date of EPA's nonattainment designation for a NAAQS in accordance with [§ 93.102(d)](/cfr/40/93.102.md?p=d) and until the effective date of revocation of such NAAQS for an area. In addition to the criteria listed in Table 1 in [paragraph (b)](#b) of this section that are required to be satisfied at all times, in such 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 nonattainment and maintenance areas for a NAAQS, the budget test must be satisfied as required by [§ 93.118](/cfr/40/93.118.md) for conformity determinations for such NAAQS 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 such NAAQS is adequate for transportation conformity purposes; - (ii) The publication date of EPA's approval of such a budget in the Federal Register; or - (iii) The effective date of EPA's approval of such a budget in the Federal Register, if such approval is completed through direct final rulemaking. - (2) Prior to [paragraph (c)(1)](#c-1) of this section applying for a NAAQS, in a nonattainment area that has approved or adequate motor vehicle emissions budgets in an applicable implementation plan or implementation plan submission for another NAAQS of the same pollutant, the following tests must be satisfied: - (i) If the nonattainment area covers the same geographic area as another NAAQS of the same pollutant, the budget test as required by [§ 93.118](/cfr/40/93.118.md) using the approved or adequate motor vehicle emissions budgets for that other NAAQS; - (ii) If the nonattainment area covers a smaller geographic area within an area for another NAAQS of the same pollutant, the budget test as required by [§ 93.118](/cfr/40/93.118.md) for either: - (A) The nonattainment area, using corresponding portion(s) of the approved or adequate motor vehicle emissions budgets for that other NAAQS, where such portion(s) can reasonably be identified through the interagency consultation process required by [§ 93.105](/cfr/40/93.105.md); or - (B) The area designated nonattainment for that other NAAQS, using the approved or adequate motor vehicle emissions budgets for that other NAAQS. If additional emissions reductions are necessary to meet the budget test for the nonattainment area for a NAAQS in such cases, these emissions reductions must come from within such nonattainment area; - (iii) If the nonattainment area covers a larger geographic area and encompasses an entire area for another NAAQS of the same pollutant, then either (A) or (B) must be met: - (A) (1) The budget test as required by [§ 93.118](/cfr/40/93.118.md) for the portion of the nonattainment area covered by the approved or adequate motor vehicle emissions budgets for that other NAAQS; and (2) the interim emissions tests as required by [§ 93.119](/cfr/40/93.119.md) for one of the following areas: the portion of the nonattainment area not covered by the approved or adequate budgets for that other NAAQS; the entire nonattainment area; or the entire portion of the nonattainment area within an individual state, in the case where separate adequate or approved motor vehicle emissions budgets for that other NAAQS are established for each state of a multi-state nonattainment or maintenance area. - (B) The budget test as required by [§ 93.118](/cfr/40/93.118.md) for the entire nonattainment area using the approved or adequate motor vehicle emissions budgets for that other NAAQS. - (iv) If the nonattainment area partially covers an area for another NAAQS of the same pollutant: - (A) The budget test as required by [§ 93.118](/cfr/40/93.118.md) for the portion of the nonattainment area covered by the corresponding portion of the approved or adequate motor vehicle emissions budgets for that other NAAQS, where they can be reasonably identified through the interagency consultation process required by [§ 93.105](/cfr/40/93.105.md); and - (B) The interim emissions tests as required by [§ 93.119](/cfr/40/93.119.md), when applicable, for either: the portion of the nonattainment area not covered by the approved or adequate budgets for that other NAAQS; the entire nonattainment area; or the entire portion of the nonattainment area within an individual state, in the case where separate adequate or approved motor vehicle emissions budgets for that other NAAQS are established for each state of a multi-state nonattainment or maintenance area. - (3) In a nonattainment area, the interim emissions tests required by [§ 93.119](/cfr/40/93.119.md) must be satisfied for a NAAQS if neither [paragraph (c)(1)](#c-1) nor [paragraph (c)(2)](#c-2) of this section applies for such NAAQS. - (4) An ozone nonattainment area must satisfy the interim emissions test for NOX, as required by [§ 93.119](/cfr/40/93.119.md), 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 does not include a motor vehicle emissions budget for NOX. The implementation plan for an ozone NAAQS will be considered to establish a motor vehicle emissions budget for NOX if the implementation plan or plan submission contains an explicit NOX motor vehicle emissions budget that is intended to act as a ceiling on future NOX emissions, and the NOX motor vehicle emissions budget is a net reduction from NOX emissions levels in the SIP's baseline year. - (5) Notwithstanding paragraphs [(c)(1)](#c-1), [(c)(2)](#c-2), and [(c)(3)](#c-3) of this section, nonattainment areas with clean data for a 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 that NAAQS must satisfy one of the following requirements: - (i) The budget test and/or interim emissions tests as required by §§ [93.118](/cfr/40/93.118.md) and [93.119](/cfr/40/93.119.md) as described in paragraphs [(c)(2)](#c-2) and [(c)(3)](#c-3) of this section; - (ii) The budget test as required by [§ 93.118](/cfr/40/93.118.md), using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the NAAQS for which the area is designated nonattainment (subject to the timing requirements of [paragraph (c)(1)](#c-1) of this section); or - (iii) The budget test as required by [§ 93.118](/cfr/40/93.118.md), using the motor vehicle emissions in the most recent year of attainment as motor vehicle emissions budgets, if the state or local air quality agency requests that the motor vehicle emissions in the most recent year of attainment be used as budgets, and EPA approves the request in the rulemaking that determines that the area has attained the NAAQS for which the area is designated nonattainment. - (6) For the PM10 NAAQS only, the interim emissions tests must be satisfied as required by [§ 93.119](/cfr/40/93.119.md) for conformity determinations made if the submitted implementation plan revision for a PM10 nonattainment area is a demonstration of impracticability under CAA [Section 189(a)(1)(B)(ii)](/cfr/40/189.md?p=a-1-B-ii) and does not demonstrate attainment. - (d) **Hot-spot conformity test requirements for CO, PM—** 2.5, and PM10 nonattainment and maintenance areas. This provision applies in accordance with [§ 93.102(d)](/cfr/40/93.102.md?p=d) for a NAAQS and until the effective date of any revocation of such NAAQS for an area. In addition to the criteria listed in Table 1 in [paragraph (b)](#b) of this section that are required to be satisfied at all times, project-level conformity determinations in CO, PM10, and PM2.5 nonattainment and maintenance areas must include a demonstration that the hot-spot tests for the applicable NAAQS are satisfied as described in the following: - (1) FHWA/FTA projects in CO nonattainment or maintenance areas must satisfy the hot-spot test required by [§ 93.116(a)](/cfr/40/93.116.md?p=a) at all times. Until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects must also satisfy the hot-spot test required by [§ 93.116(b)](/cfr/40/93.116.md?p=b). - (2) FHWA/FTA projects in PM10 nonattainment or maintenance areas must satisfy the appropriate hot-spot test as required by [§ 93.116(a)](/cfr/40/93.116.md?p=a). - (3) FHWA/FTA projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by [§ 93.116(a)](/cfr/40/93.116.md?p=a). - (e) **Areas with limited maintenance plans.** Notwithstanding the other paragraphs of this section, an area is not required to satisfy the regional emissions analysis for [§ 93.118](/cfr/40/93.118.md) and/or [§ 93.119](/cfr/40/93.119.md) for a given pollutant and NAAQS, if the area has an adequate or approved limited maintenance plan for such pollutant and NAAQS. A limited maintenance plan would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur. A conformity determination that meets other applicable criteria in Table 1 of [paragraph (b)](#b) of this section is still required, including the hot-spot requirements for projects in CO, PM10, and PM2.5 areas. - (f) **Areas with insignificant motor vehicle emissions.** Notwithstanding the other paragraphs in this section, an area is not required to satisfy a regional emissions analysis for [§ 93.118](/cfr/40/93.118.md) and/or [§ 93.119](/cfr/40/93.119.md) for a given pollutant/precursor and NAAQS, if EPA finds through the adequacy or approval process that a SIP demonstrates that regional motor vehicle emissions are an insignificant contributor to the air quality problem for that pollutant/precursor and NAAQS. The SIP would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth in that pollutant/precursor for a NAAQS violation to occur. Such a finding would be based on a number of factors, including the percentage of motor vehicle emissions in the context of the total SIP inventory, the current state of air quality as determined by monitoring data for that NAAQS, the absence of SIP motor vehicle control measures, and historical trends and future projections of the growth of motor vehicle emissions. A conformity determination that meets other applicable criteria in Table 1 of [paragraph (b)](#b) of this section is still required, including regional emissions analyses for [§ 93.118](/cfr/40/93.118.md) and/or [§ 93.119](/cfr/40/93.119.md) for other pollutants/precursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM10, and PM2.5 areas in [§ 93.116](/cfr/40/93.116.md) must also be satisfied, unless EPA determines that the SIP also demonstrates that projects will not create new localized violations and/or increase the severity or number of existing violations of such NAAQS. If EPA subsequently finds that motor vehicle emissions of a given pollutant/precursor are significant, this paragraph would no longer apply for future conformity determinations for that pollutant/precursor and NAAQS. - (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 §§ [93.110](/cfr/40/93.110.md), [93.111](/cfr/40/93.111.md), [93.112](/cfr/40/93.112.md), [93.113(d)](/cfr/40/93.113.md?p=d), [93.116](/cfr/40/93.116.md), and [93.117](/cfr/40/93.117.md). Until EPA approves the control strategy implementation plan or maintenance plan for a rural CO nonattainment or maintenance area, FHWA/FTA projects must also satisfy the requirements of [§ 93.116(b)](/cfr/40/93.116.md?p=b) (“Localized CO, PM10, and PM2.5 violations (hot spots)”). - (2) Isolated rural nonattainment and maintenance areas are subject to the budget and/or interim emissions tests as described in [paragraph (c)](#c) of this section, with the following modifications: - (i) When the requirements of §§ [93.106(d)](/cfr/40/93.106.md?p=d), [93.116](/cfr/40/93.116.md), [93.118](/cfr/40/93.118.md), and [93.119](/cfr/40/93.119.md) 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. When the requirements of [§ 93.106(d)](/cfr/40/93.106.md?p=d) apply to isolated rural nonattainment and maintenance areas, references to “MPO” should be taken to mean the state department of transportation. - (ii) In isolated rural nonattainment and maintenance areas that are subject to [§ 93.118](/cfr/40/93.118.md), FHWA/FTA projects must be consistent with motor vehicle emissions budget(s) for the years in the timeframe of the attainment demonstration or maintenance plan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWA/FTA projects must satisfy one of the following requirements: - (A) [§ 93.118](/cfr/40/93.118.md); - (B) [§ 93.119](/cfr/40/93.119.md) (including regional emissions analysis for NOX in all ozone nonattainment and maintenance areas, notwithstanding [§ 93.119(f)(2)](/cfr/40/93.119.md?p=f-2)); or - (C) As demonstrated by the air quality dispersion model or other air quality modeling technique used in the attainment demonstration or maintenance plan, the FHWA/FTA project, in combination with all other regionally significant projects expected in the area in the timeframe of the statewide transportation plan, must not cause or contribute to any new violation of any standard in any areas; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. Control measures assumed in the analysis must be enforceable. - (iii) The choice of requirements in [paragraph (g)(2)(ii)](#g-2-ii) of this section and the methodology used to meet the requirements of [paragraph (g)(2)(ii)(C)](#g-2-ii-C) of this section must be determined through the interagency consultation process required in [§ 93.105(c)(1)(vi)](/cfr/40/93.105.md?p=c-1-vi) through which the relevant recipients of [title 23](/cfr/23.md) U.S.C. or Federal Transit Laws funds, the local air quality agency, the State air quality agency, and the State department of transportation should reach consensus about the option and methodology selected. EPA and DOT must be consulted through this process as well. In the event of unresolved disputes, conflicts may be escalated to the Governor consistent with the procedure in [§ 93.105(d)](/cfr/40/93.105.md?p=d), which applies for any State air agency comments on a conformity determination. # §93.110. Criteria and procedures: Latest planning assumptions. - (a) Except as provided in this paragraph, the conformity determination, with respect to all other applicable criteria in [§§ 93.111 through 93.119](/cfr/40/93.111..93.119.md), must be based upon the most recent planning assumptions in force at the time the conformity analysis begins. The conformity determination must satisfy the requirements of [paragraphs (b) through (f)](#b..f) of this section using the planning assumptions available at the time the conformity analysis begins as determined through the interagency consultation process required in [§ 93.105(c)(1)(i)](/cfr/40/93.105.md?p=c-1-i). The “time the conformity analysis begins” for a transportation plan or TIP determination is the point at which the MPO or other designated agency begins to model the impact of the proposed transportation plan or TIP on travel and/or emissions. New data that becomes available after an analysis begins is required to be used in the conformity determination only if a significant delay in the analysis has occurred, as determined through interagency consultation. - (b) Assumptions must be derived from the estimates of current and future population, employment, travel, and congestion most recently developed by the MPO or other agency authorized to make such estimates and approved by the MPO. The conformity determination must also be based on the latest assumptions about current and future background concentrations. - (c) The conformity determination for each transportation plan and TIP must discuss how transit operating policies (including fares and service levels) and assumed transit ridership have changed since the previous conformity determination. - (d) The conformity determination must include reasonable assumptions about transit service and increases in transit fares and road and bridge tolls over time. - (e) The conformity determination must use the latest existing information regarding the effectiveness of the TCMs and other implementation plan measures which have already been implemented. - (f) Key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation required by [§ 93.105](/cfr/40/93.105.md). # §93.111. Criteria and procedures: Latest emissions model. - (a) The conformity determination must be based on the latest emission estimation model available. This criterion is satisfied if the most current version of the motor vehicle emissions model specified by EPA for use in the preparation or revision of implementation plans in that State or area is used for the conformity analysis. Where EMFAC is the motor vehicle emissions model used in preparing or revising the applicable implementation plan, new versions must be approved by EPA before they are used in the conformity analysis. - (b) EPA will consult with DOT to establish a grace period following the specification of any new model. - (1) The grace period will be no less than three months and no more than 24 months after notice of availability is published in the Federal Register. - (2) The length of the grace period will depend on the degree of change in the model and the scope of re-planning likely to be necessary by MPOs in order to assure conformity. If the grace period will be longer than three months, EPA will announce the appropriate grace period in the Federal Register. - (3) Notwithstanding [paragraph (b)(1)](#b-1) of this section, the grace period for using the MOVES2010 emissions model (and minor revisions) for regional emissions analyses will end on March 2, 2013. - (c) Transportation plan and TIP conformity analyses for which the emissions analysis was begun during the grace period or before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model. Conformity determinations for projects may also be based on the previous model if the analysis was begun during the grace period or before the Federal Register notice of availability, and if the final environmental document for the project is issued no more than three years after the issuance of the draft environmental document. # §93.112. Criteria and procedures: Consultation. Conformity must be determined according to the consultation procedures in this subpart and in the applicable implementation plan, and according to the public involvement procedures established in compliance with [23 CFR part 450](/cfr/23/part450.md). Until the implementation plan revision required by [§ 51.390](/cfr/40/51.390.md) of this chapter is fully approved by EPA, the conformity determination must be made according to § [93.105 (a)(2)](/cfr/40/93.105.md?p=a-2) and [(e)](/cfr/40/93.105.md?p=a-e) and the requirements of [23 CFR part 450](/cfr/23/part450.md). # §93.113. Criteria and procedures: Timely implementation of TCMs. - (a) The transportation plan, TIP, or any FHWA/FTA project which is not from a conforming plan and TIP must provide for the timely implementation of TCMs from the applicable implementation plan. - (b) **For transportation plans, this criterion is satisfied if the following two conditions are met—** - (1) The transportation plan, in describing the envisioned future transportation system, provides for the timely completion or implementation of all TCMs in the applicable implementation plan which are eligible for funding under [title 23](/cfr/23.md) U.S.C. or the Federal Transit Laws, consistent with schedules included in the applicable implementation plan. - (2) Nothing in the transportation plan interferes with the implementation of any TCM in the applicable implementation plan. - (c) **For TIPs, this criterion is satisfied if the following conditions are met—** - (1) An examination of the specific steps and funding source(s) needed to fully implement each TCM indicates that TCMs which are eligible for funding under [title 23](/cfr/23.md) U.S.C. or the Federal Transit Laws are on or ahead of the schedule established in the applicable implementation plan, or, if such TCMs are behind the schedule established in the applicable implementation plan, the MPO and DOT have determined that past obstacles to implementation of the TCMs have been identified and have been or are being overcome, and that all State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding of TCMs over other projects within their control, including projects in locations outside the nonattainment or maintenance area. - (2) If TCMs in the applicable implementation plan have previously been programmed for Federal funding but the funds have not been obligated and the TCMs are behind the schedule in the implementation plan, then the TIP cannot be found to conform if the funds intended for those TCMs are reallocated to projects in the TIP other than TCMs, or if there are no other TCMs in the TIP, if the funds are reallocated to projects in the TIP other than projects which are eligible for Federal funding intended for air quality improvement projects, e.g., the Congestion Mitigation and Air Quality Improvement Program. - (3) Nothing in the TIP may interfere with the implementation of any TCM in the applicable implementation plan. - (d) For FHWA/FTA projects which are not from a conforming transportation plan and TIP, this criterion is satisfied if the project does not interfere with the implementation of any TCM in the applicable implementation plan. # §93.114. Criteria and procedures: Currently conforming transportation plan and TIP. There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval, or a project must meet the requirements in [§ 93.104(f)](/cfr/40/93.104.md?p=f) during the 12-month lapse grace period. - (a) Only one conforming transportation plan or TIP may exist in an area at any time; conformity determinations of a previous transportation plan or TIP expire once the current plan or TIP is found to conform by DOT. The conformity determination on a transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements specified in [§ 93.104](/cfr/40/93.104.md). - (b) This criterion is not required to be satisfied at the time of project approval for a TCM specifically included in the applicable implementation plan, provided that all other relevant criteria of this subpart are satisfied. # §93.115. Criteria and procedures: Projects from a transportation plan and TIP. - (a) The project must come from a conforming plan and program. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of [§ 93.109(b)](/cfr/40/93.109.md?p=b) for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it meets the requirements of [paragraph (b)](#b) of this section and from a conforming program if it meets the requirements of [paragraph (c)](#c) of this section. Special provisions for TCMs in an applicable implementation plan are provided in [paragraph (d)](#d) of this section. - (b) A project is considered to be from a conforming transportation plan if one of the following conditions applies: - (1) For projects which are required to be identified in the transportation plan in order to satisfy [§ 93.106](/cfr/40/93.106.md) (“Content of transportation plans”), the project is specifically included in the conforming transportation plan and the project's design concept and scope have not changed significantly from those which were described in the transportation plan, or in a manner which would significantly impact use of the facility; or - (2) For projects which are not required to be specifically identified in the transportation plan, the project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan. - (c) **A project is considered to be from a conforming program if the following conditions are met—** - (1) The project is included in the conforming TIP and the design concept and scope of the project were adequate at the time of the TIP conformity determination to determine its contribution to the TIP's regional emissions, and the project design concept and scope have not changed significantly from those which were described in the TIP; and - (2) If the TIP describes a project design concept and scope which includes project-level emissions mitigation or control measures, written commitments to implement such measures must be obtained from the project sponsor and/or operator as required by [§ 93.125(a)](/cfr/40/93.125.md?p=a) in order for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope of the project. - (d) **TCMs.** This criterion is not required to be satisfied for TCMs specifically included in an applicable implementation plan. - (e) Notwithstanding the requirements of paragraphs [(a)](#a), [(b)](#b), and [(c)](#c) of this section, a project must meet the requirements of [§ 93.104(f)](/cfr/40/93.104.md?p=f) during the 12-month lapse grace period. # §93.116. Criteria and procedures: Localized CO, PM 10 , and PM 2.5 violations (hot-spots). - (a) This paragraph applies at all times. The FHWA/FTA project must not cause or contribute to any new localized CO, PM10, and/or PM2.5 violations, increase the frequency or severity of any existing CO, PM10, and/or PM2.5 violations, or delay timely attainment of any NAAQS or any required interim emission reductions or other milestones in CO, PM10, and PM2.5 nonattainment and maintenance areas. This criterion is satisfied without a hot-spot analysis in PM10 and PM2.5 nonattainment and maintenance areas for FHWA/FTA projects that are not identified in [§ 93.123(b)(1)](/cfr/40/93.123.md?p=b-1). This criterion is satisfied for all other FHWA/FTA projects in CO, PM10 and PM2.5 nonattainment and maintenance areas if it is demonstrated that during the time frame of the transportation plan no new local violations will be created and the severity or number of existing violations will not be increased as a result of the project, and the project has been included in a regional emissions analysis that meets applicable [§§ 93.118](/cfr/40/93.118.md) and/or 93.119 requirements. The demonstration must be performed according to the consultation requirements of [§ 93.105(c)(1)(i)](/cfr/40/93.105.md?p=c-1-i) and the methodology requirements of [§ 93.123](/cfr/40/93.123.md). - (b) This paragraph applies for CO nonattainment areas as described in [§ 93.109(d)(1)](/cfr/40/93.109.md?p=d-1). Each FHWA/FTA project must eliminate or reduce the severity and number of localized CO violations in the area substantially affected by the project (in CO nonattainment areas). This criterion is satisfied with respect to existing localized CO violations if it is demonstrated that during the time frame of the transportation plan (or regional emissions analysis) existing localized CO violations will be eliminated or reduced in severity and number as a result of the project. The demonstration must be performed according to the consultation requirements of [§ 93.105(c)(1)(i)](/cfr/40/93.105.md?p=c-1-i) and the methodology requirements of [§ 93.123](/cfr/40/93.123.md). # §93.117. Criteria and procedures: Compliance with PM 10 and PM 2.5 control measures. The FHWA/FTA project must comply with any PM10 and PM2.5 control measures in the applicable implementation plan. This criterion is satisfied if the project-level conformity determination contains a written commitment from the project sponsor to include in the final plans, specifications, and estimates for the project those control measures (for the purpose of limiting PM10 and PM2.5 emissions from the construction activities and/or normal use and operation associated with the project) that are contained in the applicable implementation plan. # §93.118. Criteria and procedures: Motor vehicle emissions budget. - (a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies as described in [§ 93.109(c) through (g)](/cfr/40/93.109.md?p=c..g). This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors described in [paragraph (c)](#c) of this section are less than or equal to the motor vehicle emissions budget(s) established in the applicable implementation plan or implementation plan submission. - (b) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes a motor vehicle emissions budget(s), and for each year for which a regional emissions analysis is performed to fulfill the requirements in [paragraph (d)](#d) of this section, as follows: - (1) **Until a maintenance plan is submitted—** - (i) Emissions in each year (such as milestone years and the attainment year) for which the control strategy implementation plan revision establishes motor vehicle emissions budget(s) must be less than or equal to that year's motor vehicle emissions budget(s); and - (ii) Emissions in years for which no motor vehicle emissions budget(s) are specifically established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. For example, emissions in years after the attainment year for which the implementation plan does not establish a budget must be less than or equal to the motor vehicle emissions budget(s) for the attainment year. - (2) **When a maintenance plan has been submitted—** - (i) Emissions must be less than or equal to the motor vehicle emissions budget(s) established for the last year of the maintenance plan, and for any other years for which the maintenance plan establishes motor vehicle emissions budgets. If the maintenance plan does not establish motor vehicle emissions budgets for any years other than the last year of the maintenance plan, the demonstration of consistency with the motor vehicle emissions budget(s) must be accompanied by a qualitative finding that there are no factors which would cause or contribute to a new violation or exacerbate an existing violation in the years before the last year of the maintenance plan. The interagency consultation process required by [§ 93.105](/cfr/40/93.105.md) shall determine what must be considered in order to make such a finding; - (ii) For years after the last year of the maintenance plan, emissions must be less than or equal to the maintenance plan's motor vehicle emissions budget(s) for the last year of the maintenance plan; - (iii) If an approved and/or submitted control strategy implementation plan has established motor vehicle emissions budgets for years in the time frame of the transportation plan, emissions in these years must be less than or equal to the control strategy implementation plan's motor vehicle emissions budget(s) for these years; and - (iv) For any analysis years before the last year of the maintenance plan, emissions must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year. - (c) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor in [§ 93.102(b)](/cfr/40/93.102.md?p=b) for which the area is in nonattainment or maintenance and for which the applicable implementation plan (or implementation plan submission) establishes a motor vehicle emissions budget. - (d) Consistency with the motor vehicle emissions budget(s) must be demonstrated by including emissions from the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or maintenance area in the timeframe of the transportation plan. - (1) Consistency with the motor vehicle emissions budget(s) must be demonstrated with a regional emissions analysis that meets the requirements of §§ [93.122](/cfr/40/93.122.md) and [93.105(c)(1)(i)](/cfr/40/93.105.md?p=c-1-i). - (2) The regional emissions analysis may be performed for any years in the timeframe of the conformity determination (as described under [§ 93.106(d)](/cfr/40/93.106.md?p=d)) provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timeframe of the transportation plan and conformity determination) and the last year of the timeframe of the conformity determination. Emissions in years for which consistency with motor vehicle emissions budgets must be demonstrated, as required in [paragraph (b)](#b) of this section, may be determined by interpolating between the years for which the regional emissions analysis is performed. - (3) When the timeframe of the conformity determination is shortened under [§ 93.106(d)(2)](/cfr/40/93.106.md?p=d-2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan, and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis (if such a year extends beyond the timeframe of the conformity determination). - (e) **Motor vehicle emissions budgets in submitted control strategy implementation plan revisions and submitted maintenance plans.** - (1) Consistency with the motor vehicle emissions budgets in submitted control strategy implementation plan revisions or maintenance plans must be demonstrated if EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformity purposes, and the adequacy finding is effective. However, motor vehicle emissions budgets in submitted implementation plans do not supersede the motor vehicle emissions budgets in approved implementation plans for the same Clean Air Act requirement and the period of years addressed by the previously approved implementation plan, unless EPA specifies otherwise in its approval of a SIP. - (2) If EPA has not declared an implementation plan submission's motor vehicle emissions budget(s) adequate for transportation conformity purposes, the budget(s) shall not be used to satisfy the requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be demonstrated. If there are no previously approved implementation plans or implementation plan submissions with adequate motor vehicle emissions budgets, the interim emissions tests required by [§ 93.119](/cfr/40/93.119.md) must be satisfied. - (3) If EPA declares an implementation plan submission's motor vehicle emissions budget(s) inadequate for transportation conformity purposes after EPA had previously found the budget(s) adequate, and conformity of a transportation plan or TIP has already been determined by DOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy §§ [93.114](/cfr/40/93.114.md) and [93.115](/cfr/40/93.115.md), which require a currently conforming transportation plan and TIP to be in place at the time of a project's conformity determination and that projects come from a conforming transportation plan and TIP. - (4) EPA will not find a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied: - (i) The submitted control strategy implementation plan revision or maintenance plan was endorsed by the Governor (or his or her designee) and was subject to a State public hearing; - (ii) Before the control strategy implementation plan or maintenance plan was submitted to EPA, consultation among federal, State, and local agencies occurred; full implementation plan documentation was provided to EPA; and EPA's stated concerns, if any, were addressed; - (iii) The motor vehicle emissions budget(s) is clearly identified and precisely quantified; - (iv) The motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission); - (v) The motor vehicle emissions budget(s) is consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy implementation plan revision or maintenance plan; and - (vi) Revisions to previously submitted control strategy implementation plans or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins (see [§ 93.101](/cfr/40/93.101.md) for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled). - (5) Before determining the adequacy of a submitted motor vehicle emissions budget, EPA will review the State's compilation of public comments and response to comments that are required to be submitted with any implementation plan. EPA will document its consideration of such comments and responses in a letter to the State indicating the adequacy of the submitted motor vehicle emissions budget. - (6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are established by an implementation plan submittal that has not yet been approved or disapproved by EPA, the MPO and DOT's conformity determinations will be deemed to be a statement that the MPO and DOT are not aware of any information that would indicate that emissions consistent with the motor vehicle emissions budget will cause or contribute to any new violation of any standard; increase the frequency or severity of any existing violation of any standard; or delay timely attainment of any standard or any required interim emission reductions or other milestones. - (f) **Adequacy review process for implementation plan submissions.** EPA will use the procedure listed in paragraph [(f)(1)](#f-1) or [(f)(2)](#f-2) of this section to review the adequacy of an implementation plan submission: - (1) When EPA reviews the adequacy of an implementation plan submission prior to EPA's final action on the implementation plan, - (i) EPA will notify the public through EPA's website when EPA receives an implementation plan submission that will be reviewed for adequacy. - (ii) The public will have a minimum of 30 days to comment on the adequacy of the implementation plan submission. If the complete implementation plan is not accessible electronically through the internet and a copy is requested within 15 days of the date of the website notice, the comment period will be extended for 30 days from the date that a copy of the implementation plan is mailed. - (iii) After the public comment period closes, EPA will inform the State in writing whether EPA has found the submission adequate or inadequate for use in transportation conformity, including response to any comments submitted directly and review of comments submitted through the State process, or EPA will include the determination of adequacy or inadequacy in a proposed or final action approving or disapproving the implementation plan under [paragraph (f)(2)(iii)](#f-2-iii) of this section. - (iv) EPA will publish a Federal Register notice to inform the public of EPA's finding. If EPA finds the submission adequate, the effective date of this finding will be 15 days from the date the notice is published as established in the Federal Register notice, unless EPA is taking a final approval action on the SIP as described in [paragraph (f)(2)(iii)](#f-2-iii) of this section. - (v) EPA will announce whether the implementation plan submission is adequate or inadequate for use in transportation conformity on EPA's website. The website will also include EPA's response to comments if any comments were received during the public comment period. - (vi) If after EPA has found a submission adequate, EPA has cause to reconsider this finding, EPA will repeat actions described in paragraphs [(f)(1)(i) through (v)](#f-1-i..f-1-v) or (f)(2) of this section unless EPA determines that there is no need for additional public comment given the deficiencies of the implementation plan submission. In all cases where EPA reverses its previous finding to a finding of inadequacy under [paragraph (f)(1)](#f-1) of this section, such a finding will become effective immediately upon the date of EPA's letter to the State. - (vii) If after EPA has found a submission inadequate, EPA has cause to reconsider the adequacy of that budget, EPA will repeat actions described in paragraphs [(f)(1)(i) through (v)](#f-1-i..f-1-v) or (f)(2) of this section. - (2) When EPA reviews the adequacy of an implementation plan submission simultaneously with EPA's approval or disapproval of the implementation plan, - (i) EPA's Federal Register notice of proposed or direct final rulemaking will serve to notify the public that EPA will be reviewing the implementation plan submission for adequacy. - (ii) The publication of the notice of proposed rulemaking will start a public comment period of at least 30 days. - (iii) EPA will indicate whether the implementation plan submission is adequate and thus can be used for conformity either in EPA's final rulemaking or through the process described in [paragraphs (f)(1)(iii) through (v)](#f-1-iii..f-1-v) of this section. If EPA makes an adequacy finding through a final rulemaking that approves the implementation plan submission, such a finding will become effective upon the publication date of EPA's approval in the Federal Register, or upon the effective date of EPA's approval if such action is conducted through direct final rulemaking. EPA will respond to comments received directly and review comments submitted through the State process and include the response to comments in the applicable docket. # §93.119. Criteria and procedures: Interim emissions in areas without motor vehicle emissions budgets. - (a) The transportation plan, TIP, and project not from a conforming transportation plan and TIP must satisfy the interim emissions test(s) as described in [§ 93.109(c) through (g)](/cfr/40/93.109.md?p=c..g). This criterion applies to the net effect of the action (transportation plan, TIP, or project not from a conforming plan and TIP) on motor vehicle emissions from the entire transportation system. - (b) **Ozone areas.** The requirements of this paragraph apply to all ozone NAAQS areas, except for certain requirements as indicated. This criterion may be met: - (1) In moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA [section 182(b)(1)](/cfr/40/182.md?p=b-1) if a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section demonstrates that for each analysis year and for each of the pollutants described in [paragraph (f)](#f) of this section: - (i) The emissions predicted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and - (ii) The emissions predicted in the “Action” scenario are lower than emissions in the baseline year for that NAAQS as described in [paragraph (e)](#e) of this section by any nonzero amount. - (2) In marginal and below ozone nonattainment areas and other ozone nonattainment areas that are not subject to the reasonable further progress requirements of CAA [section 182(b)(1)](/cfr/40/182.md?p=b-1) if a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section demonstrates that for each analysis year and for each of the pollutants described in [paragraph (f)](#f) of this section: - (i) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or - (ii) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in [paragraph (e)](#e) of this section. - (c) **CO areas.** This criterion may be met: - (1) In moderate areas with design value greater than 12.7 ppm and serious CO nonattainment areas that are subject to CAA [section 187(a)(7)](/cfr/40/187.md?p=a-7) if a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section demonstrates that for each analysis year and for each of the pollutants described in [paragraph (f)](#f) of this section: - (i) The emissions predicted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and - (ii) The emissions predicted in the “Action” scenario are lower than emissions in the baseline year for that NAAQS as described in [paragraph (e)](#e) of this section by any nonzero amount. - (2) In moderate areas with design value less than 12.7 ppm and not classified CO nonattainment areas if a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section demonstrates that for each analysis year and for each of the pollutants described in [paragraph (f)](#f) of this section: - (i) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or - (ii) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in [paragraph (e)](#e) of this section. - (d) **PM—** 2.5, PM10, and NO2 areas. This criterion may be met in PM2.5, PM10, and NO2 nonattainment areas if a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section demonstrates that for each analysis year and for each of the pollutants described in [paragraph (f)](#f) of this section, one of the following requirements is met: - (1) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or - (2) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in [paragraph (e)](#e) of this section. - (e) **Baseline year for various NAAQS.** The baseline year is defined as follows: - (1) 1990, in areas designated nonattainment for the 1990 CO NAAQS or the 1990 NO2 NAAQS. - (2) 1990, in areas designated nonattainment for the 1990 PM10 NAAQS, unless the conformity implementation plan revision required by [§ 51.390](/cfr/40/51.390.md) of this chapter defines the baseline emissions for a PM10 area to be those occurring in a different calendar year for which a baseline emissions inventory was developed for the purpose of developing a control strategy implementation plan. - (3) 2002, in areas designated nonattainment for the 1997 ozone NAAQS or 1997 PM2.5 NAAQS. - (4) The most recent year for which EPA's Air Emission Reporting Rule ([40 CFR Part 51](/cfr/40/part51.md), [Subpart A](/cfr/40/subpartA.md)) requires submission of on-road mobile source emissions inventories as of the effective date of designations, in areas designated nonattainment for a NAAQS that is promulgated after 1997. - (f) **Pollutants.** The regional emissions analysis must be performed for the following pollutants: - (1) VOC in ozone areas; - (2) NOX in ozone areas, unless the EPA Administrator determines that additional reductions of NOX would not contribute to attainment; - (3) CO in CO areas; - (4) PM10 in PM10 areas; - (5) VOC and/or NOX in PM10 areas if the EPA Regional Administrator or the director of the State air agency has made a finding that one or both of such precursor emissions from within the area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and DOT; - (6) NOX in NO2 areas; - (7) PM2.5 in PM2.5 areas; - (8) Reentrained road dust in PM2.5 areas only if the EPA Regional Administrator or the director of the State air agency has made a finding that emissions from reentrained road dust within the area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT; - (9) NOX in PM2.5 areas, unless the EPA Regional Administrator and the director of the State air agency have made a finding that emissions of NOX from within the area are not a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT; and - (10) VOC, SO2 and/or ammonia in PM2.5 areas if the EPA Regional Administrator or the director of the State air agency has made a finding that any of such precursor emissions from within the area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT. - (g) **Analysis years.** - (1) The regional emissions analysis must be performed for analysis years that are no more than ten years apart. The first analysis year must be no more than five years beyond the year in which the conformity determination is being made. The last year of the timeframe of the conformity determination (as described under [§ 93.106(d)](/cfr/40/93.106.md?p=d)) must also be an analysis year. - (2) For areas using paragraphs [(b)(2)(i)](#b-2-i), [(c)(2)(i)](#c-2-i), and (d)(1) of this section, a regional emissions analysis that satisfies the requirements of [§ 93.122](/cfr/40/93.122.md) and [paragraphs (g) through (j)](#g..j) of this section would not be required for analysis years in which the transportation projects and planning assumptions in the “Action” and “Baseline” scenarios are exactly the same. In such a case, [paragraph (a)](#a) of this section can be satisfied by documenting that the transportation projects and planning assumptions in both scenarios are exactly the same, and consequently, the emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario for such analysis years. - (3) When the timeframe of the conformity determination is shortened under [§ 93.106(d)(2)](/cfr/40/93.106.md?p=d-2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan. - (h) **“Baseline” scenario.** The regional emissions analysis required by [paragraphs (b) through (e)](#b..e) of this section must estimate the emissions that would result from the “Baseline” scenario in each analysis year. The “Baseline” scenario must be defined for each of the analysis years. The “Baseline” scenario is the future transportation system that will result from current programs, including the following (except that exempt projects listed in [§ 93.126](/cfr/40/93.126.md) and projects exempt from regional emissions analysis as listed in [§ 93.127](/cfr/40/93.127.md) need not be explicitly considered): - (1) All in-place regionally significant highway and transit facilities, services and activities; - (2) All ongoing travel demand management or transportation system management activities; and - (3) Completion of all regionally significant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed the NEPA process. - (i) **“Action” scenario.** The regional emissions analysis required by paragraphs [(b)](#b) and [(c)](#c) of this section must estimate the emissions that would result from the “Action” scenario in each analysis year. The “Action” scenario must be defined for each of the analysis years. The “Action” scenario is the transportation system that would result from the implementation of the proposed action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) and all other expected regionally significant projects in the nonattainment area. The “Action” scenario must include the following (except that exempt projects listed in [§ 93.126](/cfr/40/93.126.md) and projects exempt from regional emissions analysis as listed in [§ 93.127](/cfr/40/93.127.md) need not be explicitly considered): - (1) All facilities, services, and activities in the “Baseline” scenario; - (2) Completion of all TCMs and regionally significant projects (including facilities, services, and activities) specifically identified in the proposed transportation plan which will be operational or in effect in the analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan; - (3) All travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last conformity determination; - (4) The incremental effects of any travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringent or effective; - (5) Completion of all expected regionally significant highway and transit projects which are not from a conforming transportation plan and TIP; and - (6) Completion of all expected regionally significant non-FHWA/FTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year. - (j) **Projects not from a conforming transportation plan and TIP.** For the regional emissions analysis required by [paragraphs (b) through (e)](#b..e) of this section, if the project which is not from a conforming transportation plan and TIP is a modification of a project currently in the plan or TIP, the ‘Baseline’ scenario must include the project with its original design concept and scope, and the ‘Action’ scenario must include the project with its new design concept and scope.