E-CFR

US Electronic Code of Federal Regulations Reading Aid

Title 40 – Protection of Environment–Volume 22

Last updated on January 4th, 2022 at 06:16 pm

Contents hide

Title 40 – Protection of Environment–Volume 22


Part


chapter i – Environmental Protection Agency (Continued)

87

CHAPTER I – ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

SUBCHAPTER C – AIR PROGRAMS (CONTINUED)

PART 87 – CONTROL OF AIR POLLUTION FROM AIRCRAFT AND AIRCRAFT ENGINES


Authority:42 U.S.C. 7401 et seq.


Source:47 FR 58470, Dec. 30, 1982, unless otherwise noted.

Subpart A – General Provisions

§ 87.1 Definitions.

The definitions in this section apply to this part. The definitions apply to all subparts. Any terms not defined in this section have the meaning given in the Clean Air Act. The definitions follow:


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


Administrator means the Administrator of the Environmental Protection Agency and any other officer or employee of the Environmental Protection Agency to whom authority involved may be delegated.


Aircraft has the meaning given in 14 CFR 1.1, which defines aircraft to mean a device used or intended to be used for flight in the air. Note that under § 87.3, the requirements of this part generally apply only to propulsion engines used on certain airplanes for which U.S. airworthiness certificates are required.


Aircraft engine means a propulsion engine which is installed in or which is manufactured for installation in an aircraft.


Aircraft gas turbine engine means a turboprop, turbofan, or turbojet aircraft engine.


Characteristic level has the meaning given in Appendix 6 of ICAO Annex 16 (as of July 2008). The characteristic level is a calculated emission level for each pollutant based on a statistical assessment of measured emissions from multiple tests.


Class TP means all aircraft turboprop engines.


Class TF means all turbofan or turbojet aircraft engines or aircraft engines designed for applications that otherwise would have been fulfilled by turbojet and turbofan engines except engines of class T3, T8, and TSS.


Class T3 means all aircraft gas turbine engines of the JT3D model family.


Class T8 means all aircraft gas turbine engines of the JT8D model family.


Class TSS means all aircraft gas turbine engines employed for propulsion of aircraft designed to operate at supersonic flight speeds.


Commercial aircraft engine means any aircraft engine used or intended for use by an “air carrier,” (including those engaged in “intrastate air transportation”) or a “commercial operator” (including those engaged in “intrastate air transportation”) as these terms are defined in subtitle 7 of title 49 of the United States Code and title 14 of the Code of Federal Regulations.


Commercial aircraft gas turbine engine means a turboprop, turbofan, or turbojet commercial aircraft engine.


Date of introduction or introduction date means the date of manufacture of the first individual production engine of a given engine model or engine type certificate family to be certificated. This does not include test engines or other engines not placed into service.


Date of manufacture means the date on which a manufacturer is issued documentation by FAA (or other competent authority for engines certificated outside the United States) attesting that the given engine conforms to all applicable requirements. This date may not be earlier that the date on which assembly of the engine is complete. Where the manufacturer does not obtain such documentation from FAA (or other competent authority for engines certificated outside the United States), date of manufacture means the date of final assembly of the engine.


Derivative engine for emissions certification purposes means an engine that has the same or similar emissions characteristics as an engine covered by a U.S. type certificate issued under 14 CFR part 33. These characteristics are specified in § 87.48.


Designated EPA Program Officer means the Director of the Assessment and Standards Division, 2000 Traverwood Drive, Ann Arbor, Michigan 48105.


DOT Secretary means the Secretary of the Transportation and any other officer or employee of the Department of Transportation to whom the authority involved may be delegated.


Engine means an individual engine. A group of identical engines together make up an engine model or sub-model.


Engine model means an engine manufacturer’s designation for an engine grouping of engines and/or engine sub-models within a single engine type certificate family, where such engines have similar design, including being similar with respect to the core engine and combustor designs.


Engine sub-model means a designation for a grouping of engines with essentially identical design, especially with respect to the core engine and combustor designs and other emission-related features. Engines from an engine sub-model must be contained within a single engine model. For purposes of this part, an original engine model configuration is considered a sub-model. For example, if a manufacturer initially produces an engine model designated ABC and later introduces a new sub-model ABC-1, the engine model consists of two sub-models: ABC and ABC-1.


Engine type certificate family means a group of engines (comprising one or more engine models, including sub-models and derivative engines for emissions certification purposes of those engine models) determined by FAA to have a sufficiently common design to be grouped together under a type certificate.


EPA means the U.S. Environmental Protection Agency.


Except means to routinely allow engines to be produced and sold that do not meet (or do not fully meet) otherwise applicable standards. (Note that this definition applies only with respect to spare engines and that the term “except” has its plain meaning in other contexts.) Excepted engines must conform to regulatory conditions specified for an exception in this part and other applicable regulations. Excepted engines are deemed to be “subject to” the standards of this part even though they are not required to comply with the otherwise applicable requirements. Engines excepted with respect to certain standards must comply with other standards from which they are not excepted.


Exempt means to allow (through a formal case-by-case process) engines to be produced and sold that do not meet (or do not fully meet) otherwise applicable standards. Exempted engines must conform to regulatory conditions specified for an exemption in this part and other applicable regulations. Exempted engines are deemed to be “subject to” the standards of this part even though they are not required to comply with the otherwise applicable requirements. Engines exempted with respect to certain standards must comply with other standards as a condition of the exemption.


Exhaust emissions means substances emitted to the atmosphere from exhaust discharge nozzles, as measured by the test procedures specified in subpart G of this part.


FAA means the U.S. Department of Transportation, Federal Aviation Administration.


Fuel venting emissions means raw fuel, exclusive of hydrocarbons in the exhaust emissions, discharged from aircraft gas turbine engines during all normal ground and flight operations.


Good engineering judgment involves making decisions consistent with generally accepted scientific and engineering principles and all relevant information, subject to the provisions of 40 CFR 1068.5.


ICAO Annex 16 means Volume II of Annex 16 to the Convention on International Civil Aviation (incorporated by reference in § 87.8).


In-use aircraft gas turbine engine means an aircraft gas turbine engine which is in service.


Military aircraft means aircraft owned by, operated by, or produced for sale to the armed forces or other agency of the federal government responsible for national security (including but not limited to the Department of Defense) and other aircraft considered to be military aircraft under international law and conventions.


New means relating to an aircraft or aircraft engine that has never been placed into service.


Operator means any person or company that owns or operates an aircraft.


Production cutoff date or date of the production cutoff means the date on which interim phase-out allowances end.


Rated output (rO) means the maximum power/thrust available for takeoff at standard day conditions as approved for the engine by FAA, including reheat contribution where applicable, but excluding any contribution due to water injection, expressed in kilowatts or kilonewtons (as applicable) and rounded to at least three significant figures.


Rated pressure ratio (rPR) means the ratio between the combustor inlet pressure and the engine inlet pressure achieved by an engine operating at rated output, rounded to at least three significant figures.


Round has the meaning given in 40 CFR 1065.1001.


Smoke means the matter in exhaust emissions that obscures the transmission of light, as measured by the test procedures specified in subpart G of this part.


Smoke number means a dimensionless value quantifying smoke emissions calculated in accordance with ICAO Annex 16.


Spare engine means an engine installed (or intended to be installed) on an in-service aircraft to replace an existing engine and that is excepted as described in § 87.50(c).


Standard day conditions means the following ambient conditions: temperature = 15 °C, specific humidity = 0.00634 kg H2O/kg dry air, and pressure = 101.325 kPa.


Subsonic means relating to aircraft that are not supersonic aircraft.


Supersonic means relating to aircraft that are certificated to fly faster than the speed of sound.


Tier 0 means relating to an engine that is subject to the Tier 0 NOX standards specified in § 87.21.


Tier 2 means relating to an engine that is subject to the Tier 2 NOX standards specified in § 87.21.


Tier 4 means relating to an engine that is subject to the Tier 4 NOX standards specified in § 87.21.


Tier 6 means relating to an engine that is subject to the Tier 6 NOX standards specified in § 87.23.


Tier 8 means relating to an engine that is subject to the Tier 8 NOX standards specified in § 87.23.


Turbofan engine means a gas turbine engine designed to create its propulsion from exhaust gases and from air that bypasses the combustion process and is accelerated in a ducted space between the inner (core) engine case and the outer engine fan casing.


Turbojet engine means a gas turbine engine that is designed to create all of its propulsion from exhaust gases.


Turboprop engine means a gas turbine engine that is designed to create most of its propulsion from a propeller driven by a turbine, usually through a gearbox.


Turboshaft engine means a gas turbine engine that is designed to drive a rotor transmission system or a gas turbine engine not used for propulsion.


U.S.-registered aircraft means an aircraft that is on the U.S. Registry.


We (us, our) means the Administrator of the Environmental Protection Agency and any authorized representatives.


[77 FR 36379, June 18, 2012]


§ 87.2 Abbreviations.

The abbreviations used in this part have the following meanings:


% percent

° degree

CO carbon monoxide

CO2 carbon dioxide

g gram

HC hydrocarbon(s)

kN kilonewton

kW kilowatt

LTO landing and takeoff

NOX oxides of nitrogen

rO rated output

rPR rated pressure ratio

SN smoke number

[77 FR 36381, June 18, 2012]


§ 87.3 General applicability and requirements.

(a) The regulations of this part apply to engines on all aircraft that are required to be certificated by FAA under 14 CFR part 33 except as specified in this paragraph (a). These regulations do not apply to the following aircraft engines:


(1) Reciprocating engines (including engines used in ultralight aircraft).


(2) Turboshaft engines such as those used in helicopters.


(3) Engines used only in aircraft that are not airplanes. For purposes of this paragraph (a)(3), “airplane” means a fixed-wing aircraft that is heavier than air.


(4) Engines not used for propulsion.


(b) Under section 232 of the Act, the Secretary of Transportation issues regulations to ensure compliance with the standards and related requirements of this part (42 U.S.C. 7572).


(c) The Secretary of Transportation shall apply these regulations to aircraft of foreign registry in a manner consistent with obligations assumed by the United States in any treaty, convention or agreement between the United States and any foreign country or foreign countries.


(d) No State or political subdivision of a State may adopt or attempt to enforce any aircraft or aircraft engine standard respecting emissions unless the standard is identical to a standard applicable to such aircraft under this part (including prior-tier standards applicable to exempt engines).


[77 FR 36381, June 18, 2012]


§ 87.4 [Reserved]

§ 87.6 Aircraft safety.

The provisions of this part will be revised if at any time the DOT Secretary determines that an emission standard cannot be met within the specified time without creating a hazard to aircraft safety.


[77 FR 36381, June 18, 2012]


§ 87.8 Incorporation by reference.

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the Environmental Protection Agency must publish a document in the Federal Register and the material must be available to the public. All approved material is available for inspection at U.S. EPA, Air and Radiation Docket Center, WJC West Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004, www.epa.gov/dockets, (202) 202-1744, and is available from the sources listed in this section. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email [email protected] or go to www.archives.gov/federal-register/cfr/ibr-locations.html.


(b) International Civil Aviation Organization, Document Sales Unit, 999 University Street, Montreal, Quebec, Canada H3C 5H7, (514) 954-8022, www.icao.int, or [email protected]


(1) Annex 16 to the Convention on International Civil Aviation, Environmental Protection, as follows:


(i) Volume II – Aircraft Engine Emissions, Fourth Edition, July 2017. IBR approved for §§ 87.1, 87.42(c), and 87.60(a) and (b).


(ii) Amendment 10 to Annex 16, Volume II, to the Convention on International Civil Aviation, effective July 20, 2020 (ICAO Annex 16, Volume II). IBR approved for §§ 87.1, 87.42(c), and 87.60(a) and (b).


(2) [Reserved]


[77 FR 36381, June 18, 2012, as amended at 86 FR 2171, Jan. 11, 2021]


Subpart B – Engine Fuel Venting Emissions (New and In-Use Aircraft Gas Turbine Engines)

§ 87.10 Applicability.

(a) The provisions of this subpart are applicable to all new aircraft gas turbines of classes T3, T8, TSS and TF equal to or greater than 36 kilonewton rated output, manufactured on or after January 1, 1974, and to all in-use aircraft gas turbine engines of classes T3, T8, TSS and TF equal to or greater than 36 kilonewton rated output manufactured after February 1, 1974.


(b) The provisions of this subpart are also applicable to all new aircraft gas turbines of class TF less than 36 kilonewton rated output and class TP manufactured on or after January 1, 1975 and to all in-use aircraft gas turbines of class TF less than 36 kilonewton rated output and class TP manufactured after January 1, 1975.


[49 FR 41002, Oct. 18, 1984]


§ 87.11 Standard for fuel venting emissions.

(a) No fuel venting emissions shall be discharged into the atmosphere from any new or in-use aircraft gas turbine engine subject to the subpart. This paragraph is directed at the elimination of intentional discharge to the atmosphere of fuel drained from fuel nozzle manifolds after engines are shut down and does not apply to normal fuel seepage from shaft seals, joints, and fittings.


(b) Conformity with the standard set forth in paragraph (a) of this section shall be determined by inspection of the method designed to eliminate these emissions.


Subpart C – Exhaust Emissions (New Aircraft Gas Turbine Engines)

§ 87.20 Applicability.

The provisions of this subpart are applicable to all aircraft gas turbine engines of the classes specified beginning on the dates specified.


§ 87.21 Exhaust emission standards for Tier 4 and earlier engines.

This section describes the emission standards that apply for Tier 4 and earlier engines that apply for aircraft engines manufactured before July 18, 2012 and certain engines exempted under § 87.50. Note that the tier of standards identified for an engine relates to NOX emissions and that the specified standards for HC, CO, and smoke emissions apply independent of the changes to the NOX emission standards.


(a) Exhaust emissions of smoke from each new aircraft gas turbine engine of class T8 manufactured on or after February 1, 1974, shall not exceed: Smoke number of 30.


(b) Exhaust emissions of smoke from each new aircraft gas turbine engine of class TF and of rated output of 129 kilonewtons thrust or greater, manufactured on or after January 1, 1976, shall not exceed:


SN = 83.6(r0)−0.274 (r0 is in kilonewtons).

(c) Exhaust emission of smoke from each new aircraft gas turbine engine of class T3 manufactured on or after January 1, 1978, shall not exceed: Smoke number of 25.


(d) Gaseous exhaust emissions from each new commercial aircraft gas turbine engine shall not exceed:


(1) Classes TF, T3, T8 engines greater than 26.7 kilonewtons rated output:


(i) Engines manufactured on or after January 1, 1984:


Hydrocarbons: 19.6 grams/kilonewton rO.

(ii) Engines manufactured on or after July 7, 1997.


Carbon Monoxide: 118 grams/kilonewton rO.

(iii) The following Tier 0 emission standard applies for engines of a type or model of which the date of manufacture of the first individual production model was on or before December 31, 1995 and for which the date of manufacture of the individual engine was on or before December 31, 1999.


Oxides of Nitrogen: (40 + 2(rPR)) grams/kilonewton rO.

(iv) The following Tier 2 emission standard applies for engines of a type or model of which the date of manufacture of the first individual production model was after December 31, 1995 or for which the date of manufacture of the individual engine was after December 31, 1999:


Oxides of Nitrogen: (32 + 1.6(rPR)) grams/kilonewton rO.

(v) The emission standards prescribed in paragraphs (d)(1) (iii) and (iv) of this section apply as prescribed beginning July 7, 1997.


(vi) The following Tier 4 emission standards apply for engines of a type or model of which the date of manufacture of the first individual production model was after December 31, 2003:


(A) Engines with a rated pressure ratio of 30 or less:


(1) Engines with a maximum rated output greater than 89 kilonewtons:


Oxides of Nitrogen: (19 + 1.6(rPR)) grams/kilonewtons rO.


(2) Engines with a maximum rated output greater than 26.7 kilonewtons but not greater than 89 kilonewtons:


Oxides of Nitrogen: (37.572 + 1.6(rPR) − 0.2087(rO)) grams/kilonewtons rO.


(B) Engines with a rated pressure ratio greater than 30 but less than 62.5:


(1) Engines with a maximum rated output greater than 89 kilonewtons:


Oxides of Nitrogen: (7 + 2(rPR)) grams/kilonewtons rO.


(2) Engines with a maximum rated output greater than 26.7 kilonewtons but not greater than 89 kilonewtons:


Oxides of Nitrogen: (42.71 + 1.4286(rPR) − 0.4013(rO) + 0.00642(rPR × rO)) grams/kilonewtons rO.


(C) Engines with a rated pressure ratio of 62.5 or more:


Oxides of Nitrogen: (32 + 1.6(rPR)) grams/kilonewtons rO.


(vii) The emission standards prescribed in paragraph (d)(1)(vi) of this section shall apply as prescribed beginning December 19, 2005.


(2) Class TSS: Engines manufactured on or after January 1, 1984:


Hydrocarbons = 140(0.92)
rPR grams/kilonewtons rO.

(e) Smoke exhaust emissions from each gas turbine engine of the classes specified below shall not exceed:


(1) Class TF of rated output less than 26.7 kilonewtons manufactured on or after August 9, 1985:


SN = 83.6(rO)−0.274 (rO is in kilonewtons) not to exceed a maximum of SN = 50.

(2) Classes T3, T8, TSS and TF of rated output equal to or greater than 26.7 kilonewtons manufactured on or after January 1, 1984:


SN = 83.6(ro)−0.274 (ro is in kilonewtons) not to exceed a maximum of SN = 50.

(3) Class TP of rated output equal to or greater than 1,000 kilowatts manufactured on or after January 1, 1984:


SN = 187(ro) −0.168 (ro is in kilowatts)

(f) The standards in this section refer to a composite emission sample measured and calculated in accordance with the procedures described in subpart G of this part.


[47 FR 58470, Dec. 30, 1982, as amended at 49 FR 31875, Aug. 9, 1984; 62 FR 25365, May 8, 1997; 70 FR 69686, Nov. 17, 2005; 77 FR 36381, June 18, 2012]


§ 87.23 Exhaust emission standards for Tier 6 and Tier 8 engines.

This section describes the emission standards that apply for Tier 6 and Tier 8 engines. The standards of this section apply for aircraft engines manufactured on or after July 18, 2012, except where we specify that they apply differently by year, or where the engine is exempt from one or more standards of this section. Except as specified in paragraph (d) of this section, these standards apply based on the date the engine is manufactured. Where a gaseous emission standard is specified by a formula, calculate and round the standard to three significant figures or to the nearest 0.1 g/kN (for standards at or above 100 g/kN). Where a smoke standard is specified by a formula, calculate and round the standard to the nearest 0.1 SN. Engines comply with an applicable standard if the testing results show that the engine type certificate family’s characteristic level does not exceed the numerical level of that standard, as described in § 87.60. The tier of standards identified for an engine relates to NOX emissions and that the specified standards for HC, CO, and smoke emissions apply independent of the changes to the NOX emission standards.


(a) New turboprop aircraft engines with rated output at or above 1,000 kilowatts must comply with a smoke standard of 187 · rO−0.168.


(b) New supersonic engines must comply with the standards shown in the following table:


Table 1 to § 87.23 – Smoke and Gaseous Emission Standards for New Supersonic Engines

Rated output
Smoke number
HC (g/kN rated

output)
NOX (g/kN rated

output)
CO (g/kN rated

output)
rO 140 · 0.92rPR36 + 2.42 · rPR4550 · rPR−1.03
rO ≥26.7 kN83.6 · rO−0.274 or 50.0, whichever is smaller140 · 0.92rPR36 + 2.42 · rPR4550 · rPR−1.03

(c) New turbofan or turbojet aircraft engines that are installed in subsonic aircraft must comply with the following standards:


(1) The applicable smoke, HC, and CO standards are shown in the following table:


Table 2 to § 87.23 – Smoke, HC, and CO Standards for New Subsonic Turbofan or Turbojet Engines

Rated output (kN)
Smoke standard
Gaseous emission standards

(g/kN rated output)
HC
CO
rO 83.6 · rO−0.274 or 50.0, whichever is smaller
rO ≥26.7 kN83.6 · rO−0.274 or 50.0, whichever is smaller19.6118

(2) The Tier 6 NOX standards apply as described in this paragraph (c)(2). See paragraph (d) of this section for provisions related to models introduced before these standards started to apply and engines determined to be derivative engines for emissions certification purposes under the requirements of this part.


Table 3 to § 87.23 – Tier 6 NOX Standards for New Subsonic Turbofan or Turbojet Engines With Rated Output Above 26.7 kN

If the rated pressure ratio is –
and the rated output (in kN) is –
The NOX emission standard (in g/kN rated output) is –
rPR ≤3026.7 38.5486 + 1.6823·rPR − 0.2453·rO − 0.00308·rPR·rO
rO >8916.72 + 1.4080·rPR
30 26.7 46.1600 + 1.4286·rPR − 0.5303·rO + 0.00642·rPR·rO
rO >89−1.04 + 2.0·rPR
rPR ≥82.6all32 + 1.6·rPR

(3) The Tier 8 NOX standards apply as described in this paragraph (c)(3) beginning January 1, 2014. See paragraph (d) of this section for provisions related to models introduced before January 1, 2014 apply and engines determined to be derivative engines for emissions certification purposes under the requirements of this part.


Table 4 to § 87.23 – Tier 8 NOX Standards for New Subsonic Turbofan or Turbojet Engines With Rated Output Above 26.7 kN

If the rated pressure ratio is –
and the rated output (in kN) is –
The NOX emission standard (in g/kN rated output) is –
rPR ≤3026.7 40.052 + 1.5681·rPR − 0.3615·rO − 0.0018·rPR·rO
rO >897.88 + 1.4080·rPR
30 26.7 41.9435 + 1.505·rPR − 0.5823·rO + 0.005562·rPR·rO
rO >89−9.88 + 2.0·rPR
rPR ≥104.7all32 + 1.6·rPR

(d) This paragraph (d) specifies phase-in provisions that allow continued production of certain engines after the Tier 6 and Tier 8 standards begin to apply.


(1) Engine type certificate families certificated with characteristic levels at or below the Tier 4 NOX standards of § 87.21 (as applicable based on rated output and rated pressure ratio) and introduced before July 18, 2012 may be produced through December 31, 2012 without meeting the Tier 6 NOX standards of paragraph (c)(2) of this section. This also applies for engines that are covered by the same type certificate and are determined to be derivative engines for emissions certification purposes under the requirements of this part. Note that after this production cutoff date for the Tier 6 NOX standards, such engines may be produced only if they are covered by an exemption under § 87.50. This production cutoff does not apply to engines installed (or delivered for installation) on military aircraft.


(2) Engine type certificate families certificated with characteristic levels at or below the Tier 6 NOX standards of paragraph (c)(2) of this section with an introduction date before January 1, 2014 may continue to be produced. This also applies for engines that are covered by the same type certificate and are determined to be derivative engines for emissions certification purposes under the requirements of this part.


(3) An engine manufacturer may produce up to six newly manufactured Tier 4 engines on or after July 18, 2012, subject to the provisions of this paragraph (d)(3). Tier 4 engines meeting the criteria of this paragraph (d)(3) are excepted without request from the otherwise applicable Tier 6 NOX emission standard. To be eligible for this exception the engines must have a date of manufacture prior to August 31, 2013 and be fully compliant with all requirements applicable to Tier 4 engines. The manufacturer must include these engines in the report required by § 87.50. This exception is void for any manufacturer that produces more than six excepted engines under this paragraph.


[77 FR 36382, June 18, 2012, as amended at 77 FR 65823, Oct. 31, 2012]


Subpart D – Exhaust Emissions (In-Use Aircraft Gas Turbine Engines)

§ 87.30 Applicability.

The provisions of this subpart are applicable to all in-use aircraft gas turbine engines certified for operation within the United States of the classes specified beginning on the dates specified.


§ 87.31 Standards for exhaust emissions.

(a) Exhaust emissions of smoke from each in-use aircraft gas turbine engine of Class T8, beginning February 1, 1974, shall not exceed: Smoke number of 30.


(b) Exhaust emissions of smoke from each in-use aircraft gas turbine engine of class TF and of rated output of 129 kilonewtons thrust or greater, beginning January 1, 1976, shall not exceed:


SN = 83.6(r0)−0.274 (r0 is in kilonewtons).

(c) The standards set forth in paragraphs (a) and (b) of this section refer to exhaust smoke emissions emitted during operations of the engine as specified in the applicable section of subpart H of this part, and measured and calculated in accordance with the procedures set forth in this subpart.


[47 FR 58470, Dec. 30, 1982, as amended at 48 FR 2718, Jan. 20, 1983]


Subpart E – Certification Provisions


Source:77 FR 36383, June 18, 2012, unless otherwise noted.

§ 87.40 General certification requirement.

Manufacturers of engines subject to this part must meet the requirements of title 14 of the Code of Federal Regulations as applicable.


§ 87.42 Production report to EPA.

Engine manufacturers must submit an annual production report as specified in this section. This requirement applies for engines produced on or after January 1, 2013.


(a) You must submit the report for each calendar year in which you produce any engines subject to emission standards under this part. The report is due by February 28 of the following calendar year. Note that § 87.64 requires you to report CO2 emission rates to EPA in addition to NOX. Include these data in the report required by this section. If you produce exempted or excepted engines, you may submit a single report with information on exempted/excepted and normally certificated engines.


(b) Send the report to the Designated EPA Program Officer.


(c) In the report, specify your corporate name and the year for which you are reporting. Include information as described in this section for each engine sub-model subject to emission standards under this part. List each engine sub-model produced or certificated during the calendar year, including the following information for each sub-model:


(1) The type of engine (turbofan, turboprop, etc.) and complete sub-model name, including any applicable model name, sub-model identifier, and engine type certificate family identifier.


(2) The certificate under which it was produced. Identify all the following:


(i) The type certificate number. Specify if the sub-model also has a type certificate issued by a certificating authority other than FAA.


(ii) Your corporate name as listed in the certificate.


(iii) Emission standards to which the engine is certificated.


(iv) Date of issue of type certificate (month and year).


(v) Whether or not this is a derivative engine for emissions certification purposes. If so, identify the original certificated engine model.


(vi) The engine sub-model that received the original type certificate for an engine type certificate family.


(3) Identify the combustor of the sub-model, where more than one type of combustor is available.


(4) The calendar-year production volume of engines from the sub-model that are covered by an FAA type certificate. Record zero for sub-models with no engines produced during the calendar year, or state that the engine model is no longer in production and list the date of manufacture (month and year) of the last engine produced. Specify the number of these engines that are intended for use on new aircraft and the number that are intended for use as non-exempt engines on in-use aircraft. For engines delivered without a final sub-model status and for which the manufacturer has not ascertained the engine’s sub-model when installed before submitting its production report, the manufacturer may do any of the following in its initial report, and amend it later:


(i) List the sub-model that was shipped or the most probable sub-model.


(ii) List all potential sub-models.


(iii) State “Unknown Sub-Model.”


(5) The number of engines tested and the number of test runs for the applicable type certificate.


(6) The applicable test data and related information specified in Part III, Section 2.4 of ICAO Annex 16 (incorporated by reference in § 87.8), except as otherwise allowed by this paragraph. For purposes of this paragraph (c)(6), applicable test data means data required to certify the engine sub-model, which would typically include NOX, HC, CO and smoke number. However, applicable test data would not include NOX, HC, or CO emissions for engines subject to only smoke standards. Note that § 87.64 also requires you to report CO2 emissions. Specify thrust in kW for turboprop engines. You may omit the following items specified in Part III, Section 2.4 of ICAO Annex 16:


(i) Fuel specifications including fuel specification reference and hydrogen/carbon ratio.


(ii) Methods used for data acquisition, correcting for ambient conditions, and data analysis.


(iii) Intermediate emission indices and rates, however you may not omit the final characteristic level for each regulated pollutant in units of g/kN or g/kW.


(d) Clearly show what information you consider confidential by marking, circling, bracketing, stamping, or some other method. We will store your confidential information as described in 40 CFR part 2. Also, we will disclose it only as specified in 40 CFR part 2. If you send us information without claiming it is confidential, we may make it available to the public without further notice to you, as described in 40 CFR 2.204.


(e) Include the following signed statement and endorsement by an authorized representative of your company: “We submit this report under 40 CFR 87.42. All the information in this report is true and accurate to the best of my knowledge.”


(f) Where information provided for the previous year remains valid and complete, you may report your production volumes and state that there are no changes, without resubmitting the other information specified in this section.


§ 87.46 Recordkeeping.

(a) You must keep a copy of any reports or other information you submit to us for at least three years.


(b) Store these records in any format and on any media, as long as you can promptly send us organized, written records in English if we ask for them. You must keep these records readily available. We may review them at any time.


§ 87.48 Derivative engines for emissions certification purposes.

(a) General. A type certificate holder may request from the FAA a determination that an engine configuration is considered a derivative engine for emissions certification purposes. This would mean that the engine configuration is determined to be similar in design to a previously certificated engine (the “original” engine) for purposes of compliance with exhaust emission standards (gaseous and smoke). In order for the engine configuration to be considered a derivative engine for emission purposes under this part, it must have been derived from an original engine that was certificated to the requirements of 14 CFR part 33, and one of the following conditions must be met:


(1) The FAA determined that a safety issue exists that requires an engine modification.


(2) Emissions from the derivative engines are determined to be similar. In general, this means the emissions must meet the criteria specified in paragraph (b) of this section. FAA may adjust these criteria in unusual circumstances, consistent with good engineering judgment.


(3) All of the regulated emissions from the derivative engine are lower than the original engine.


(b) Emissions similarity. (1) The type certificate holder must demonstrate that the proposed derivative engine model’s emissions meet the applicable standards and differ from the original model’s emission rates only within the following ranges:


(i) ±3.0 g/kN for NOX.


(ii) ±1.0 g/kN for HC.


(iii) ±5.0 g/kN for CO.


(iv) ±2.0 SN for smoke.


(2) If the characteristic level of the original certificated engine model (or any other sub-models within the emission type certificate family tested for certification) before modification is at or above 95% of the applicable standard for any pollutant, you must measure the proposed derivative engine model’s emissions for all pollutants to demonstrate that the derivative engine’s resulting characteristic levels will not exceed the applicable emission standards. If the characteristic levels of the originally certificated engine model (and all other sub-models within the emission type certificate family tested for certification) are below 95% of the applicable standard for each pollutant, then, you may use engineering analysis to demonstrate that the derivative engine will not exceed the applicable emission standards, consistent with good engineering judgment. The engineering analysis must address all modifications from the original engine, including those approved for previous derivative engines.


(c) Continued production allowance. Where we allow continued production of an engine model after new standards begin to apply, you may also produce engine derivatives if they conform to the specifications of this section.


(d) Non-derivative engines. If the FAA determines that an engine model does not meet the requirements for a derivative engine for emissions certification purposes, the type certificate holder is required to demonstrate that the engine complies with the emissions standards applicable to a new engine type.


Subpart F – Exemptions and Exceptions


Source:77 FR 36384, June 18, 2012, unless otherwise noted.

§ 87.50 Exemptions and exceptions.

This section specifies provisions related to exempting/excepting engines from some or all of the standards and requirements of this part 87. Exempted/excepted engines must conform to regulatory conditions specified for an exemption in this section and other applicable regulations. Exempted/excepted engines are deemed to be “subject to” the standards of this part even though they are not required to comply with the otherwise applicable requirements. Engines exempted/excepted with respect to certain standards must comply with other standards. Exemption requests under paragraph (a) of this section must be approved by the FAA, with the written concurrence of EPA, to be effective. Exemption requests under paragraph (b) of this section must be approved only by the FAA to be effective. Exceptions do not require a case-by-case FAA approval.


(a) Engines installed in new aircraft. Type certificate holders may request an exemption to produce a limited number of newly manufactured engines through December 31, 2016, to be installed in new aircraft as specified in this paragraph (a). This exemption is limited to NOX emissions from engines that are covered by a valid type certificate issued by FAA.


(1) Submit your request for an exemption to the FAA before producing the engines to be exempted, who will provide a copy to the Designated EPA Program Officer. Exemption by an authority outside the United States does not satisfy this requirement. Unless EPA and FAA allow otherwise, all requests must include the following:


(i) Your corporate name and an authorized representative’s contact information.


(ii) A description of the engines for which you are requesting the exemption including the type certificate number and date it was issued by the FAA. Include in your description the engine model and sub-model names and the types of aircraft in which the engines are expected to be installed. Specify the number of engines that you would produce under the exemption and the period during which you would produce them.


(iii) Information about the aircraft in which the engines will be installed. Specify the airframe models and expected first purchasers/users of the aircraft. Identify all countries in which you expect the aircraft to be registered. Specify how many aircraft will be registered in the United States and how many will be registered in other countries; you may estimate this if it is not known.


(iv) A justification of why the exemption is appropriate. Justifications must include a description of the environmental impact of granting the exemption. Include other relevant information such as the following:


(A) Technical issues, from an environmental and airworthiness perspective, which may have caused a delay in compliance with a production cutoff.


(B) Economic impacts on the manufacturer, operator(s), and aviation industry at large.


(C) Environmental effects. This should consider the amount of additional air pollutant emissions that will result from the exemption. This could include consideration of items such as:


(1) The amount that the engine model exceeds the standard, taking into account any other engine models in the engine type certificate family covered by the same type certificate and their relation to the standard.


(2) The amount of the applicable air pollutant that would be emitted by an alternative engine for the same application.


(3) The impact of changes to reduce the applicable air pollutant on other environmental factors, including emission rates of other air pollutants, community noise, and fuel consumption.


(4) The degree to which the adverse impact would be offset by cleaner engines produced in the same time period (unless we decide to consider earlier engines).


(D) Impact of unforeseen circumstances and hardship due to business circumstances beyond your control (such as an employee strike, supplier disruption, or calamitous events).


(E) Projected future production volumes and plans for producing a compliant version of the engine model in question.


(F) Equity issues in administering the production cutoff among economically competing parties.


(G) List of other certificating authorities from which you have requested (or expect to request) exemptions, and a summary of the request.


(H) Any other relevant factors.


(v) A statement signed by your authorized representative attesting that all information included in the request is accurate.


(2) In consultation with the EPA, the FAA may specify additional conditions for the exemption.


(3) You must submit the annual report specified in paragraph (d) of this section.


(4) The permanent record for each engine exempted under this paragraph (a) must indicate that the engine is an exempted new engine.


(5) Engines exempted under this paragraph (a) must be labeled with the following statement: “EXEMPT NEW”.


(6) You must notify the FAA if you determine after submitting your request that the information is not accurate, either from an error or from changing circumstances. If you believe the new or changed information could have affected approval of your exemption (including information that could have affected the number of engines we exempt), you must notify the FAA promptly. The FAA will consult with EPA as needed to address any concerns related to this new or corrected information.


(b) Temporary exemptions based on flights for short durations at infrequent intervals. The emission standards of this part do not apply to engines which power aircraft operated in the United States for short durations at infrequent intervals. Such operations are limited to:


(1) Flights of an aircraft for the purpose of export to a foreign country, including any flights essential to demonstrate the integrity of an aircraft prior to its flight to a point outside the United States.


(2) Flights to a base where repairs, alterations or maintenance are to be performed, or to a point of storage, and flights for the purpose of returning an aircraft to service.


(3) Official visits by representatives of foreign governments.


(4) Other flights the Secretary determines to be for short durations at infrequent intervals. A request for such a determination shall be made before the flight takes place.


(c) Spare engines. Newly manufactured engines meeting the definition of “spare engine” are excepted as follows:


(1) This exception allows production of a newly manufactured engine for installation on an in-service aircraft. It does not allow for installation of a spare engine on a new aircraft.


(2) Each spare engine must be identical to a sub-model previously certificated to meet all requirements applicable to Tier 4 engines or later requirements.


(3) Spare engines excepted under this paragraph (c) may be used only where the emissions of the spare engines are certificated to equal to or lower emission standards than those of the engines they are replacing, for all regulated pollutants.


(4) No prior approval is required to produce spare engines. Engine manufacturers must include information about their production of spare engines in the annual report specified in paragraph (d) of this section


(5) The permanent record for each engine excepted under this paragraph (c) must indicate that the engine was produced as an excepted spare engine.


(6) Engines excepted under this paragraph (c) must be labeled with the following statement: “EXCEPTED SPARE”.


(d) Annual reports. If you produce engines with an exemption/exception under this section, you must submit an annual report with respect to such engines.


(1) You must send the Designated EPA Program Officer a report describing your production of exempted/excepted engines for each calendar year in which you produce such engines by February 28 of the following calendar year. You may include this information in the certification report described in § 87.42. Confirm that the information in your initial request is still accurate, or describe any relevant changes.


(2) Provide the information specified in this paragraph (d)(2). For purposes of this paragraph (d), treat spare engine exceptions separate from other new engine exemptions. Include the following for each exemption/exception and each engine model and sub-model:


(i) Engine model and sub-model names.


(ii) Serial number of each engine.


(iii) Use of each engine (for example, spare or new installation).


(iv) Types of aircraft in which the engines were installed (or are intended to be installed for spare engines).


(v) Serial number of the new aircraft in which engines are installed (if known), or the name of the air carriers (or other operators) using spare engines.


(3) Include information in the report only for engines having a date of manufacture within the specific calendar year.


Subpart G – Test Procedures

§ 87.60 Testing engines.

(a) Use the equipment and procedures specified in Appendix 3, Appendix 5, and Appendix 6 of ICAO Annex 16 (incorporated by reference in § 87.8), as applicable, to demonstrate whether engines meet the gaseous emission standards specified in subpart C of this part. Measure the emissions of all regulated gaseous pollutants. Similarly, use the equipment and procedures specified in Appendix 2 and Appendix 6 of ICAO Annex 16 to determine whether engines meet the smoke standard specified in subpart C of this part. The compliance demonstration consists of establishing a mean value from testing some number of engines, then calculating a “characteristic level” by applying a set of statistical factors that take into account the number of engines tested. Round each characteristic level to the same number of decimal places as the corresponding emission standard. For turboprop engines, use the procedures specified for turbofan engines, consistent with good engineering judgment.


(b) Use a test fuel meeting the specifications described in Appendix 4 of ICAO Annex 16 (incorporated by reference in § 87.8). The test fuel must not have additives whose purpose is to suppress smoke, such as organometallic compounds.


(c) Prepare test engines by including accessories that are available with production engines if they can reasonably be expected to influence emissions. The test engine may not extract shaft power or bleed service air to provide power to auxiliary gearbox-mounted components required to drive aircraft systems.


(d) Test engines must reach a steady operating temperature before the start of emission measurements.


(e) In consultation with the EPA, the FAA may approve alternate procedures for measuring emissions as specified in this paragraph (e). This might include testing and sampling methods, analytical techniques, and equipment specifications that differ from those specified in this part. Manufacturers and operators may request this approval by sending a written request with supporting justification to the FAA and to the Designated EPA Program Officer. Such a request may be approved only if one of the following conditions is met:


(1) The engine cannot be tested using the specified procedures.


(2) The alternate procedure is shown to be equivalent to or better (e.g., more accurate or precise) than the specified procedure.


(f) The following landing and take-off (LTO) cycles apply for emission testing and calculating weighted LTO values:


Table 1 to § 87.60 – LTO Test Cycles

Mode
Turboprop
Subsonic turbofan
Supersonic turbofan
Percent of rated output
Time in mode

(minutes)
Percent of rated output
Time in mode

(minutes)
Percent of rated output
Time in mode

(minutes)
Take-off1000.51000.71001.2
Climb902.5852.2652.0
Descent151.2
Approach304.5304.0342.3
Taxi/ground idle726.0726.05.826.0

(g) Engines comply with an applicable standard if the testing results show that the engine type certificate family’s characteristic level does not exceed the numerical level of that standard, as described in § 87.60.


[77 FR 36386, June 18, 2012]


§ 87.64 Sampling and analytical procedures for measuring gaseous exhaust emissions.

(a) [Reserved]


(b) Starting January 1, 2011, report CO2 values along with your emission levels of regulated NOX to the Administrator for engines of a type or model of which the date of manufacture of the first individual production model was on or after January 1, 2011. By January 1, 2011, report CO2 values along with your emission levels of regulated NOX to the Administrator for engines currently in production and of a type or model for which the date of manufacture of the individual engine was before January 1, 2011. Round CO2 to the nearest 1 g/kilonewton rO.


(c) Report CO2 by calculation from fuel mass flow rate measurements in Appendices 3 and 5 to ICAO Annex 16, volume II or alternatively, according to the measurement criteria of CO2 in Appendices 3 and 5 to ICAO Annex 16, volume II.


[74 FR 56374, Oct. 30, 2009, as amended at 77 FR 36386, June 18, 2012]


PART 88 – CLEAN-FUEL VEHICLES


Authority:42 U.S.C. 7410, 7418, 7581, 7582, 7583, 7584, 7586, 7588, 7589, 7601(a).


Source:86 FR 34372, June 29, 2021, unless otherwise noted.

§ 88.1 General applicability.

(a) The Clean Air Act includes provisions intended to promote the development and sale of clean-fuel vehicles (see 42 U.S.C. 7581-7589). This takes the form of credit incentives for State Implementation Plans. The specified clean-fuel vehicle standards to qualify for these credits are now uniformly less stringent than the emission standards that apply for new vehicles and new engines under 40 CFR parts 86 and 1036.


(b) The following provisions apply for purposes of State Implementation Plans that continue to reference the Clean Fuel Fleet Program:


(1) Vehicles and engines certified to current emission standards under 40 CFR part 86 or 1036 are deemed to also meet the Clean Fuel Fleet standards as Ultra Low-Emission Vehicles.


(2) Vehicles and engines meeting requirements as specified in paragraph (a)(1) of this section with a fuel system designed to not vent fuel vapors to the atmosphere are also deemed to meet the Clean Fuel Fleet standards as Inherently Low-Emission Vehicles. This paragraph (b)(2) applies for vehicles using diesel fuel, liquefied petroleum gas, or compressed natural gas. It does not apply for vehicles using gasoline, ethanol, methanol, or liquefied natural gas.


(3) The following types of vehicles qualify as Zero Emission Vehicles:


(i) Electric vehicles (see 40 CFR 86.1803-01).


(ii) Any other vehicle with a fuel that contains no carbon or nitrogen compounds, that has no evaporative emissions, and that burns without forming oxides of nitrogen, carbon monoxide, formaldehyde, particulate matter, or hydrocarbon compounds. This paragraph (b)(3)(i) applies equally for all engines installed on the vehicle.


§ § 88.2 through 88.3 [Reserved]

PART 89 – CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD COMPRESSION-IGNITION ENGINES


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


Source:86 FR 34372, June 29, 2021, unless otherwise noted.

§ 89.1 Applicability.

The Environmental Protection Agency adopted emission standards for model year 1996 and later nonroad compression-ignition engines under this part. EPA has migrated regulatory requirements for these engines to 40 CFR part 1039, with additional testing and compliance provisions in 40 CFR parts 1065 and 1068. The Tier 1, Tier 2, and Tier 3 standards originally adopted in this part are identified in 40 CFR part 1039, appendix I. See 40 CFR 1039.1 for information regarding the timing of the transition to 40 CFR part 1039, and for information regarding regulations that continue to apply for engines that manufacturers originally certified or otherwise produced under this part.


§ § 89.2 through 89.3 [Reserved]

PART 90 – CONTROL OF EMISSIONS FROM NONROAD SPARK-IGNITION ENGINES AT OR BELOW 19 KILOWATTS


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


Source:86 FR 34372, June 29, 2021, unless otherwise noted.

§ 90.1 Applicability.

The Environmental Protection Agency adopted emission standards for model year 1997 and later nonroad spark-ignition engines below 19 kW under this part. EPA has migrated regulatory requirements for these engines to 40 CFR part 1054, with additional testing and compliance provisions in 40 CFR parts 1065 and 1068. The Phase 1 and Phase 2 standards originally adopted in this part are identified in 40 CFR part 1054, appendix I. See 40 CFR 1054.1 for information regarding the timing of the transition to 40 CFR part 1054, and for information regarding regulations that continue to apply for engines that manufacturers originally certified or otherwise produced under this part.


§ § 90.2 through 90.3 [Reserved]

PART 91 – CONTROL OF EMISSIONS FROM MARINE SPARK-IGNITION ENGINES


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


Source:86 FR 34372, June 29, 2021, unless otherwise noted.

§ 91.1 Applicability.

The Environmental Protection Agency adopted emission standards for model year 1998 and later marine spark-ignition engines under this part, except that the standards of this part did not apply to sterndrive/inboard engines. EPA has migrated regulatory requirements for these engines to 40 CFR part 1045, with additional testing and compliance provisions in 40 CFR parts 1065 and 1068. The standards originally adopted in this part are identified in 40 CFR part 1045, appendix I. See 40 CFR 1045.1 for information regarding the timing of the transition to 40 CFR part 1045, and for information regarding regulations that continue to apply for engines that manufacturers originally certified or otherwise produced under this part.


§ § 91.2 through 91.3 [Reserved]

PART 92 – CONTROL OF AIR POLLUTION FROM LOCOMOTIVES AND LOCOMOTIVE ENGINES


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


Source:86 FR 34373, June 29, 2021, unless otherwise noted.

§ 92.1 Applicability.

The Environmental Protection Agency first adopted emission standards for freshly manufactured and remanufactured locomotives under this part in 1998. EPA has migrated regulatory requirements for these engines to 40 CFR part 1033, with additional testing and compliance provisions in 40 CFR parts 1065 and 1068. The Tier 0, Tier 1, and Tier 2 standards originally adopted in this part are identified in 40 CFR part 1033, appendix I. See 40 CFR 1033.1 for information regarding the timing of the transition to 40 CFR part 1033, and for information regarding regulations that continue to apply for engines that manufacturers originally certified or otherwise produced or remanufactured under this part. Emission standards started to apply for locomotive and locomotive engines if they were –


(a) Manufactured on or after January 1, 2000;


(b) Manufactured on or after January 1, 1973 and remanufactured on or after January 1, 2000; or


(c) Manufactured before January 1, 1973 and upgraded on or after January 1, 2000.


§ § 92.2 through 92.3 [Reserved]

PART 93 – DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS


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.

§ 93.100 Purpose.

The purpose of this subpart is to implement section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the related requirements of 23 U.S.C. 109(j), with respect to the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipients of funds under title 23 U.S.C. or the Federal Transit Laws (49 U.S.C. Chapter 53). This subpart sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to an applicable implementation plan developed pursuant to section 110 and Part D of the CAA.


§ 93.101 Definitions.

Terms used but not defined in this subpart shall have the meaning given them by the CAA, titles 23 and 49 U.S.C., other Environmental Protection Agency (EPA) regulations, or other DOT regulations, in that order of priority.


Applicable implementation plan is defined in section 302(q) of the CAA and means the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110, or promulgated under section 110(c), or promulgated or approved pursuant to regulations promulgated under section 301(d) and which implements the relevant requirements of the CAA.


CAA means the Clean Air Act, as amended (42 U.S.C. 7401 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 applicable requirements of 40 CFR Parts 50 and 58 and to indicate attainment of a NAAQS.


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).


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 or added, length of project, signalization, access control including approximate number and location of interchanges, preferential treatment for high-occupancy vehicles, etc.


DOT means the United States Department of Transportation.


Donut areas are geographic areas outside a metropolitan planning area boundary, but inside the boundary of a nonattainment or maintenance area that contains any part of a metropolitan area(s). These areas are not isolated rural nonattainment and maintenance areas.


EPA means the Environmental Protection Agency.


FHWA means the Federal Highway Administration of DOT.


FHWA/FTA project, for the purpose of this subpart, is any highway or transit project which is proposed to receive funding assistance and approval through the Federal-Aid Highway program or the Federal mass transit program, or requires Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) approval for some aspect of the project, such as connection to an interstate highway or deviation from applicable design standards on the interstate system.


Forecast period with respect to a transportation plan is the period covered by the transportation plan pursuant to 23 CFR part 450.


FTA means the Federal Transit Administration of DOT.


Highway project is an undertaking to implement or modify a highway facility or highway-related program. Such an undertaking consists of all required phases necessary for implementation. For analytical purposes, it must be defined sufficiently to:


(1) Connect logical termini and be of sufficient length to address environmental matters on a broad scope;


(2) Have independent utility or significance, i.e., be usable and be a reasonable expenditure even if no additional transportation improvements in the area are made; and


(3) Not restrict consideration of alternatives for other reasonably foreseeable transportation improvements.


Horizon year is a year for which the transportation plan describes the envisioned transportation system according to § 93.106.


Hot-spot analysis is an estimation of likely future localized CO, PM10, and/or PM2.5 pollutant concentrations and a comparison of those concentrations to the national ambient air quality standards. Hot-spot analysis assesses impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadway intersections and highways or transit terminals, and uses an air quality dispersion model to determine the effects of emissions on air quality.


Increase the frequency or severity means to cause a location or region to exceed a standard more often or to cause a violation at a greater concentration than previously existed and/or would otherwise exist during the future period in question, if the project were not implemented.


Isolated rural nonattainment and maintenance areas are areas that do not contain or are not part of any metropolitan planning area as designated under the transportation planning regulations. Isolated rural areas do not have Federally required metropolitan transportation plans or TIPs and do not have projects that are part of the emissions analysis of any MPO’s metropolitan transportation plan or TIP. Projects in such areas are instead included in statewide transportation improvement programs. These areas are not donut areas.


Lapse means that the conformity determination for a transportation plan or TIP has expired, and thus there is no currently conforming transportation plan and TIP.


Limited maintenance plan is a maintenance plan that EPA has determined meets EPA’s limited maintenance plan policy criteria for a given NAAQS and pollutant. To qualify for a limited maintenance plan, for example, an area must have a design value that is significantly below a given NAAQS, and it must be reasonable to expect that a NAAQS violation will not result from any level of future motor vehicle emissions growth.


Maintenance area means any geographic region of the United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A of the CAA, as amended.


Maintenance plan means an implementation plan under section 175A of the CAA, as amended.


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


Milestone has the meaning given in CAA sections 182(g)(1) and 189(c) for serious and above ozone nonattainment areas and PM10 nonattainment areas, respectively. For all other nonattainment areas, a milestone consists of an emissions level and the date on which that level is to be achieved as required by the applicable CAA provision for reasonable further progress towards attainment.


Motor vehicle emissions budget is that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions.


National ambient air quality standards (NAAQS) are those standards established pursuant to section 109 of the CAA.


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, including a substitute or additional TCM that is incorporated into the applicable SIP through the process established in CAA section 176(c)(8), that is either one of the types listed in CAA section 108, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the first sentence of this definition, vehicle technology-based, fuel-based, and maintenance-based measures which control the emissions from vehicles under fixed traffic conditions are not TCMs for the purposes of this subpart.


Transportation improvement program (TIP) means a transportation improvement program developed by a metropolitan planning organization under 23 U.S.C. 134(j).


Transportation plan means the official intermodal metropolitan transportation plan that is developed through the metropolitan planning process for the metropolitan planning area, developed pursuant to 23 CFR part 450.


Transportation project is a highway project or a transit project.


Written commitment for the purposes of this subpart means a written commitment that includes a description of the action to be taken; a schedule for the completion of the action; a demonstration that funding necessary to implement the action has been authorized by the appropriating or authorizing body; and an acknowledgment that the commitment is an enforceable obligation under the applicable implementation plan.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40072, July 1, 2004; 71 FR 12510, Mar. 10, 2006; 73 FR 4439, Jan. 24, 2008; 75 FR 14283, Mar. 24, 2010; 77 FR 14986, Mar. 14, 2012]


§ 93.102 Applicability.

(a) Action applicability. (1) Except as provided for in paragraph (c) of this section or § 93.126, conformity determinations are required for:


(i) The adoption, acceptance, approval or support of transportation plans and transportation plan amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT;


(ii) The adoption, acceptance, approval or support of TIPs and TIP amendments developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT; and


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


(2) Conformity determinations are not required under this subpart for individual projects which are not FHWA/FTA projects. However, § 93.121 applies to such projects if they are regionally significant.


(b) Geographic applicability. The provisions of this subpart shall apply in all nonattainment and maintenance areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan.


(1) The provisions of this subpart apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide (CO), nitrogen dioxide (NO2), particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10); and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM2.5).


(2) The provisions of this subpart also apply with respect to emissions of the following precursor pollutants:


(i) Volatile organic compounds (VOC) and nitrogen oxides (NOX) in ozone areas;


(ii) NOX in NO2 areas;


(iii) 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 transportation-related emissions of one or both of these precursors within the nonattainment area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy;


(iv) NOX in PM2.5 areas, unless both the EPA Regional Administrator and the director of the state air agency have made a finding that transportation-related emissions of NOX within the nonattainment area are not a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT, or the applicable implementation plan (or implementation plan submission) does not establish an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy; and


(v) VOC, sulfur dioxide (SO2) and/or ammonia (NH3) in PM2.5 areas either if the EPA Regional Administrator or the director of the state air agency has made a finding that transportation-related emissions of any of these precursors within the nonattainment area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT, or if the applicable implementation plan (or implementation plan submission) establishes an approved (or adequate) budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy.


(3) The provisions of this subpart apply to PM2.5 nonattainment and maintenance areas with respect to PM2.5 from re-entrained road dust if the EPA Regional Administrator or the director of the State air agency has made a finding that re-entrained road dust emissions within the area are a significant contributor to the PM2.5 nonattainment problem and has so notified the MPO and DOT, or if the applicable implementation plan (or implementation plan submission) includes re-entrained road dust in the approved (or adequate) budget as part of the reasonable further progress, attainment or maintenance strategy. Re-entrained road dust emissions are produced by travel on paved and unpaved roads (including emissions from anti-skid and deicing materials).


(4) The provisions of this subpart apply to maintenance areas through the last year of a maintenance area’s approved CAA section 175A(b) maintenance plan, unless the applicable implementation plan specifies that the provisions of this subpart shall apply for more than 20 years.


(c) Limitations. In order to receive any FHWA/FTA approval or funding actions, including NEPA approvals, for a project phase subject to this subpart, a currently conforming transportation plan and TIP must be in place at the time of project approval as described in § 93.114, except as provided by § 93.114(b).


(d) Grace period for new nonattainment areas. For areas or portions of areas which have been continuously designated attainment or not designated for any NAAQS for ozone, CO, PM10, PM2.5 or NO2 since 1990 and are subsequently redesignated to nonattainment or designated nonattainment for any NAAQS for any of these pollutants, the provisions of this subpart shall not apply with respect to that NAAQS for 12 months following the effective date of final designation to nonattainment for each NAAQS for such pollutant.


[62 FR 43801, Aug. 15, 1997, as amended at 65 FR 18918, Apr. 10, 2000; 67 FR 50817, Aug. 6, 2002; 69 FR 40072, July 1, 2004; 70 FR 24291, May 6, 2005; 73 FR 4439, Jan. 24, 2008]


§ 93.103 Priority.

When assisting or approving any action with air quality-related consequences, FHWA and FTA shall give priority to the implementation of those transportation portions of an applicable implementation plan prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements for allocation of funds among States or other jurisdictions.


§ 93.104 Frequency of conformity determinations.

(a) Conformity determinations and conformity redeterminations for transportation plans, TIPs, and FHWA/FTA projects must be made according to the requirements of this section and the applicable implementation plan.


(b) Frequency of conformity determinations for transportation plans. (1) Each new transportation plan must be demonstrated to conform before the transportation plan is approved by the MPO or accepted by DOT.


(2) All transportation plan amendments must be found to conform before the transportation plan amendments are approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in § 93.126 or § 93.127. The conformity determination must be based on the transportation plan and the amendment taken as a whole.


(3) The MPO and DOT must determine the conformity of the transportation plan (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT’s conformity determination without the MPO and DOT determining conformity of the transportation plan, a 12-month grace period will be implemented as described in paragraph (f) of this section. At the end of this 12-month grace period, the existing conformity determination will lapse.


(c) Frequency of conformity determinations for transportation improvement programs. (1) A new TIP must be demonstrated to conform before the TIP is approved by the MPO or accepted by DOT.


(2) A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in § 93.126 or § 93.127.


(3) The MPO and DOT must determine the conformity of the TIP (including a new regional emissions analysis) no less frequently than every four years. If more than four years elapse after DOT’s conformity determination without the MPO and DOT determining conformity of the TIP, a 12-month grace period will be implemented as described in paragraph (f) of this section. At the end of this 12-month grace period, the existing conformity determination will lapse.


(d) Projects. FHWA/FTA projects must be found to conform before they are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWA/FTA project if one of the following occurs: a significant change in the project’s design concept and scope; three years elapse since the most recent major step to advance the project; or initiation of a supplemental environmental document for air quality purposes. Major steps include NEPA process completion; start of final design; acquisition of a significant portion of the right-of-way; and, construction (including Federal approval of plans, specifications and estimates).


(e) Triggers for transportation plan and TIP conformity determinations. Conformity of existing transportation plans and TIPs must be redetermined within two years of the following, or after a 12-month grace period (as described in paragraph (f) of this section) the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and DOT:


(1) The effective date of EPA’s finding that motor vehicle emissions budgets from an initially submitted control strategy implementation plan or maintenance plan are adequate pursuant to § 93.118(e) and can be used for transportation conformity purposes;


(2) The effective date of EPA approval of a control strategy implementation plan revision or maintenance plan which establishes or revises a motor vehicle emissions budget if that budget has not yet been used in a conformity determination prior to approval; and


(3) The effective date of EPA promulgation of an implementation plan which establishes or revises a motor vehicle emissions budget.


(f) Lapse grace period. During the 12-month grace period referenced in paragraphs (b)(3), (c)(3), and (e) of this section, a project may be found to conform according to the requirements of this part if:


(1) The project is included in the currently conforming transportation plan and TIP (or regional emissions analysis); or


(2) the project is included in the most recent conforming transportation plan and TIP (or regional emissions analysis).


[62 FR 43801, Aug. 15, 1997, as amended at 67 FR 50817, Aug. 6, 2002; 69 FR 40072, July 1, 2004; 73 FR 4439, Jan. 24, 2008]


§ 93.105 Consultation.

(a) General. The implementation plan revision required under § 51.390 of this chapter shall include procedures for interagency consultation (Federal, State, and local), resolution of conflicts, and public consultation as described in paragraphs (a) through (e) of this section. Public consultation procedures will be developed in accordance with the requirements for public involvement in 23 CFR part 450.


(1) The implementation plan revision shall include procedures to be undertaken by MPOs, State departments of transportation, and DOT with State and local air quality agencies and EPA before making conformity determinations, and by State and local air agencies and EPA with MPOs, State departments of transportation, and DOT in developing applicable implementation plans.


(2) Before EPA approves the conformity implementation plan revision required by § 51.390 of this chapter, MPOs and State departments of transportation must provide reasonable opportunity for consultation with State air agencies, local air quality and transportation agencies, DOT, and EPA, including consultation on the issues described in paragraph (c)(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 (c) of this section:


(i) The roles and responsibilities assigned to each agency at each stage in the implementation plan development process and the transportation planning process, including technical meetings;


(ii) The organizational level of regular consultation;


(iii) A process for circulating (or providing ready access to) draft documents and supporting materials for comment before formal adoption or publication;


(iv) The frequency of, or process for convening, consultation meetings and responsibilities for establishing meeting agendas;


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


(vi) A process for the development of a list of the TCMs which are in the applicable implementation plan.


(c) Interagency consultation procedures: Specific processes. Interagency consultation procedures shall also include the following specific processes:


(1) A process involving the MPO, State and local air quality planning agencies, State and local transportation agencies, EPA, and DOT for the following:


(i) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses;


(ii) Determining which minor arterials and other transportation projects should be considered “regionally significant” for the purposes of regional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP;


(iii) Evaluating whether projects otherwise exempted from meeting the requirements of this subpart (see §§ 93.126 and 93.127) should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason;


(iv) Making a determination, as required by § 93.113(c)(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) Notification of transportation plan or TIP amendments which merely add or delete exempt projects listed in § 93.126 or § 93.127; and


(vi) Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by § 93.109(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 § 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 § 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 § 51.390 of this chapter shall define the procedures for starting the 14-day clock. If the State air agency appeals to the Governor, the final conformity determination must have the concurrence of the Governor. If the State air agency does not appeal to the Governor within 14 days, the MPO or State department of transportation may proceed with the final conformity determination. The Governor may delegate his or her role in this process, but not to the head or staff of the State or local air agency, State department of transportation, State transportation commission or board, or an MPO.


(e) Public consultation procedures. Affected agencies making conformity determinations on transportation plans, programs, and projects shall establish a proactive public involvement process which provides opportunity for public review and comment by, at a minimum, providing reasonable public access to technical and policy information considered by the agency at the beginning of the public comment period and prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with these requirements and those of 23 CFR 450.316(a). Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR 7.43. In addition, these agencies must specifically address in writing all public comments that known plans for a regionally significant project which is not receiving FHWA or FTA funding or approval have not been properly reflected in the emissions analysis supporting a proposed conformity finding for a transportation plan or TIP. These agencies shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 70 FR 24291, May 6, 2005; 71 FR 12510, Mar. 10, 2006; 73 FR 4439, Jan. 24, 2008; 75 FR 14284, Mar. 24, 2010; 77 FR 14986, Mar. 14, 2012]


§ 93.106 Content of transportation plans and timeframe of conformity determinations.

(a) Transportation plans adopted after January 1, 1997 in serious, severe, or extreme ozone nonattainment areas and in serious CO nonattainment areas. If the metropolitan planning area contains an urbanized area population greater than 200,000, the transportation plan must specifically describe the transportation system envisioned for certain future years which shall be called horizon years.


(1) The agency or organization developing the transportation plan may choose any years to be horizon years, subject to the following restrictions:


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


(ii) The first horizon year may be no more than 10 years from the base year used to validate the transportation demand planning model;


(iii) The attainment year must be a horizon year if it is in the timeframe of the transportation plan and conformity determination;


(iv) The last year of the transportation plan’s forecast period must be a horizon year; and


(v) If the timeframe of the conformity determination has been shortened under paragraph (d) of this section, the last year of the timeframe of the conformity determination must be a horizon year.


(2) For these horizon years:


(i) The transportation plan shall quantify and document the demographic and employment factors influencing expected transportation demand, including land use forecasts, in accordance with implementation plan provisions and the consultation requirements specified by § 93.105;


(ii) The highway and transit system shall be described in terms of the regionally significant additions or modifications to the existing transportation network which the transportation plan envisions to be operational in the horizon years. Additions and modifications to the highway network shall be sufficiently identified to indicate intersections with existing regionally significant facilities, and to determine their effect on route options between transportation analysis zones. Each added or modified highway segment shall also be sufficiently identified in terms of its design concept and design scope to allow modeling of travel times under various traffic volumes, consistent with the modeling methods for area-wide transportation analysis in use by the MPO. Transit facilities, equipment, and services envisioned for the future shall be identified in terms of design concept, design scope, and operating policies that are sufficient for modeling of their transit ridership. Additions and modifications to the transportation network shall be described sufficiently to show that there is a reasonable relationship between expected land use and the envisioned transportation system; and


(iii) Other future transportation policies, requirements, services, and activities, including intermodal activities, shall be described.


(b) Two-year grace period for transportation plan requirements in certain ozone and CO areas. The requirements of paragraph (a) of this section apply to such areas or portions of such areas that have previously not been required to meet these requirements for any existing NAAQS two years from the following:


(1) The effective date of 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.


(c) Transportation plans for other areas. Transportation plans for other areas must meet the requirements of paragraph (a) of this section at least to the extent it has been the previous practice of the MPO to prepare plans which meet those requirements. Otherwise, the transportation system envisioned for the future must be sufficiently described within the transportation plans so that a conformity determination can be made according to the criteria and procedures of §§ 93.109 through 93.119.


(d) Timeframe of conformity determination. (1) Unless an election is made under paragraph (d)(2) or (d)(3) of this section, the timeframe of the conformity determination must be through the last year of the transportation plan’s forecast period.


(2) For areas that do not have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the transportation plan and TIP conformity determination, after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments.


(i) The shortened timeframe of the conformity determination must extend at least to the latest of the following years:


(A) The tenth year of the transportation plan;


(B) The latest year for which an adequate or approved motor vehicle emissions budget(s) is established in the submitted or applicable implementation plan; or


(C) The year after the completion date of a regionally significant project if the project is included in the TIP or the project requires approval before the subsequent conformity determination.


(ii) The conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis, if such a year extends beyond the timeframe of the conformity determination.


(3) For areas that have an adequate or approved CAA section 175A(b) maintenance plan, the MPO may elect to shorten the timeframe of the conformity determination to extend through the last year of such maintenance plan after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments.


(4) Any election made by an MPO under paragraphs (d)(2) or (d)(3) of this section shall continue in effect until the MPO elects otherwise, after consultation with state and local air quality agencies, solicitation of public comments, and consideration of such comments.


(e) Savings. The requirements of this section supplement other requirements of applicable law or regulation governing the format or content of transportation plans.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40073, July 1, 2004; 73 FR 4439, Jan. 24, 2008]


§ 93.107 Relationship of transportation plan and TIP conformity with the NEPA process.

The degree of specificity required in the transportation plan and the specific travel network assumed for air quality modeling do not preclude the consideration of alternatives in the NEPA process or other project development studies. Should the NEPA process result in a project with design concept and scope significantly different from that in the transportation plan or TIP, the project must meet the criteria in §§ 93.109 through 93.119 for projects not from a TIP before NEPA process completion.


§ 93.108 Fiscal constraints for transportation plans and TIPs.

Transportation plans and TIPs must be fiscally constrained consistent with DOT’s metropolitan planning regulations at 23 CFR part 450 in order to be found in conformity.


§ 93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General.

(a) In order for each transportation plan, program, and FHWA/FTA project to be found to conform, the MPO and DOT must demonstrate that the applicable criteria and procedures in this subpart are satisfied, and the MPO and DOT must comply with all applicable conformity requirements of implementation plans and of court orders for the area which pertain specifically to conformity. The criteria for making conformity determinations differ based on the action under review (transportation plans, TIPs, and FHWA/FTA projects), the relevant pollutant(s), and the status of the implementation plan.


(b) Table 1 in this paragraph indicates the criteria and procedures in §§ 93.110 through 93.119 which apply for transportation plans, TIPs, and FHWA/FTA projects. Paragraph (c) of this section explains when the budget and interim emissions tests are required for each pollutant and NAAQS. Paragraph (d) of this section explains when a hot-spot test is required. Paragraph (e) of this section addresses conformity requirements for areas with approved or adequate limited maintenance plans. Paragraph (f) of this section addresses nonattainment and maintenance areas which EPA has determined have insignificant motor vehicle emissions. Paragraph (g) of this section addresses isolated rural nonattainment and maintenance areas. Table 1 follows:


Table 1 – Conformity Criteria

All Actions at all times:
§ 93.110Latest planning assumptions
§ 93.111Latest emissions model
§ 93.112Consultation
Transportation Plan:
§ 93.113(b)TCMs
§ 93.118 or § 93.119Emissions budget and/or Interim emissions
TIP:
§ 93.113(c)TCMs
§ 93.118 or § 93.119Emissions budget and/or Interim emissions
Project (From a Conforming Plan and TIP):
§ 93.114Currently conforming plan and TIP
§ 93.115Project from a conforming plan and TIP
§ 93.116CO, PM10, and PM2.5 hot-spots.
§ 93.117PM10 and PM2.5 control measures
Project (Not From a Conforming Plan and TIP):
§ 93.113(d)TCMs
§ 93.114Currently conforming plan and TIP
§ 93.116CO, PM10, and PM2.5 hot-spots.
§ 93.117PM10 and PM2.5 control measures
§ 93.118 and/or § 93.119Emissions budget and/or Interim emissions

(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) 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) 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 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) 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 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 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; 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 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 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 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 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; and


(B) The interim emissions tests as required by § 93.119, 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 must be satisfied for a NAAQS if neither paragraph (c)(1) nor paragraph (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, 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)(2), and (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 and 93.119 as described in paragraphs (c)(2) and (c)(3) of this section;


(ii) The budget test as required by § 93.118, using the adequate or approved motor vehicle emissions budgets in the submitted or applicable control strategy implementation plan for the NAAQS for which the area is designated nonattainment (subject to the timing requirements of paragraph (c)(1) of this section); or


(iii) The budget test as required by § 93.118, 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 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) and does not demonstrate attainment.


(d) Hot-spot conformity test requirements for CO, PM2.5, and PM10 nonattainment and maintenance areas. This provision applies in accordance with § 93.102(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) 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) at all times. Until a CO attainment demonstration or maintenance plan is approved by EPA, FHWA/FTA projects must also satisfy the hot-spot test required by § 93.116(b).


(2) FHWA/FTA projects in PM10 nonattainment or maintenance areas must satisfy the appropriate hot-spot test as required by § 93.116(a).


(3) FHWA/FTA projects in PM2.5 nonattainment or maintenance areas must satisfy the appropriate hot-spot test required by § 93.116(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 and/or § 93.119 for a given pollutant and NAAQS, if the area has an adequate or approved limited maintenance plan for such pollutant and NAAQS. A limited maintenance plan would have to demonstrate that it would be unreasonable to expect that such an area would experience enough motor vehicle emissions growth for a NAAQS violation to occur. A conformity determination that meets other applicable criteria in Table 1 of paragraph (b) of this section is still required, including the hot-spot requirements for projects in CO, 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 and/or § 93.119 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) of this section is still required, including regional emissions analyses for § 93.118 and/or § 93.119 for other pollutants/precursors and NAAQS that apply. Hot-spot requirements for projects in CO, PM10, and PM2.5 areas in § 93.116 must also be satisfied, unless EPA determines that the SIP also demonstrates that projects will not create new localized violations and/or increase the severity or number of existing violations of such NAAQS. If EPA subsequently finds that motor vehicle emissions of a given pollutant/precursor are significant, this paragraph would no longer apply for future conformity determinations for that pollutant/precursor and NAAQS.


(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, 93.111, 93.112, 93.113(d), 93.116, and 93.117. Until EPA approves the control strategy implementation plan or maintenance plan for a rural CO nonattainment or maintenance area, FHWA/FTA projects must also satisfy the requirements of § 93.116(b) (“Localized CO, 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) of this section, with the following modifications:


(i) When the requirements of §§ 93.106(d), 93.116, 93.118, and 93.119 apply to isolated rural nonattainment and maintenance areas, references to “transportation plan” or “TIP” should be taken to mean those projects in the statewide transportation plan or statewide TIP which are in the rural nonattainment or maintenance area. When the requirements of § 93.106(d) apply to isolated rural nonattainment and maintenance areas, references to “MPO” should be taken to mean the state department of transportation.


(ii) In isolated rural nonattainment and maintenance areas that are subject to § 93.118, FHWA/FTA projects must be consistent with motor vehicle emissions budget(s) for the years in the timeframe of the attainment demonstration or maintenance plan. For years after the attainment year (if a maintenance plan has not been submitted) or after the last year of the maintenance plan, FHWA/FTA projects must satisfy one of the following requirements:


(A) § 93.118;


(B) § 93.119 (including regional emissions analysis for NOX in all ozone nonattainment and maintenance areas, notwithstanding § 93.119(f)(2)); or


(C) As demonstrated by the air quality dispersion model or other air quality modeling technique used in the attainment demonstration or maintenance plan, the FHWA/FTA project, in combination with all other regionally significant projects expected in the area in the timeframe of the statewide transportation plan, must not cause or contribute to any new violation of any standard in any areas; increase the frequency or severity of any existing violation of any standard in any area; or delay timely attainment of any standard or any required interim emission reductions or other milestones in any area. Control measures assumed in the analysis must be enforceable.


(iii) The choice of requirements in paragraph (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 § 93.105(c)(1)(vi) through which the relevant recipients of title 23 U.S.C. or Federal Transit Laws funds, the local air quality agency, the State air quality agency, and the State department of transportation should reach consensus about the option and methodology selected. EPA and DOT must be consulted through this process as well. In the event of unresolved disputes, conflicts may be escalated to the Governor consistent with the procedure in § 93.105(d), which applies for any State air agency comments on a conformity determination.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40093, July 1, 2004; 71 FR 12510, Mar. 10, 2006; 73 FR 4440, Jan. 24, 2008; 75 FR 14284, Mar. 24, 2010; 77 FR 14986, Mar. 14, 2012]


§ 93.110 Criteria and procedures: Latest planning assumptions.

(a) Except as provided in this paragraph, the conformity determination, with respect to all other applicable criteria in §§ 93.111 through 93.119, must be based upon the most recent planning assumptions in force at the time the conformity analysis begins. The conformity determination must satisfy the requirements of paragraphs (b) through (f) of this section using the planning assumptions available at the time the conformity analysis begins as determined through the interagency consultation process required in § 93.105(c)(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.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40077, July 1, 2004]


§ 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) 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.


[62 FR 43801, Aug. 15, 1997, as amended at 77 FR 11401, Feb. 27, 2012]


§ 93.112 Criteria and procedures: Consultation.

Conformity must be determined according to the consultation procedures in this subpart and in the applicable implementation plan, and according to the public involvement procedures established in compliance with 23 CFR part 450. Until the implementation plan revision required by § 51.390 of this chapter is fully approved by EPA, the conformity determination must be made according to § 93.105 (a)(2) and (e) and the requirements of 23 CFR part 450.


§ 93.113 Criteria and procedures: Timely implementation of TCMs.

(a) The transportation plan, TIP, or any FHWA/FTA project which is not from a conforming plan and TIP must provide for the timely implementation of TCMs from the applicable implementation plan.


(b) For transportation plans, this criterion is satisfied if the following two conditions are met:


(1) The transportation plan, in describing the envisioned future transportation system, provides for the timely completion or implementation of all TCMs in the applicable implementation plan which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws, consistent with schedules included in the applicable implementation plan.


(2) Nothing in the transportation plan interferes with the implementation of any TCM in the applicable implementation plan.


(c) For TIPs, this criterion is satisfied if the following conditions are met:


(1) An examination of the specific steps and funding source(s) needed to fully implement each TCM indicates that TCMs which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws are on or ahead of the schedule established in the applicable implementation plan, or, if such TCMs are behind the schedule established in the applicable implementation plan, the MPO and DOT have determined that past obstacles to implementation of the TCMs have been identified and have been or are being overcome, and that all State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding of TCMs over other projects within their control, including projects in locations outside the nonattainment or maintenance area.


(2) If TCMs in the applicable implementation plan have previously been programmed for Federal funding but the funds have not been obligated and the TCMs are behind the schedule in the implementation plan, then the TIP cannot be found to conform if the funds intended for those TCMs are reallocated to projects in the TIP other than TCMs, or if there are no other TCMs in the TIP, if the funds are reallocated to projects in the TIP other than projects which are eligible for Federal funding intended for air quality improvement projects, e.g., the Congestion Mitigation and Air Quality Improvement Program.


(3) Nothing in the TIP may interfere with the implementation of any TCM in the applicable implementation plan.


(d) For FHWA/FTA projects which are not from a conforming transportation plan and TIP, this criterion is satisfied if the project does not interfere with the implementation of any TCM in the applicable implementation plan.


§ 93.114 Criteria and procedures: Currently conforming transportation plan and TIP.

There must be a currently conforming transportation plan and currently conforming TIP at the time of project approval, or a project must meet the requirements in § 93.104(f) during the 12-month lapse grace period.


(a) Only one conforming transportation plan or TIP may exist in an area at any time; conformity determinations of a previous transportation plan or TIP expire once the current plan or TIP is found to conform by DOT. The conformity determination on a transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements specified in § 93.104.


(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.


[62 FR 43801, Aug. 15, 1997, as amended at 73 FR 4440, Jan. 24, 2008]


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

(a) The project must come from a conforming plan and program. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of § 93.109(b) for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan if it meets the requirements of paragraph (b) of this section and from a conforming program if it meets the requirements of paragraph (c) of this section. Special provisions for TCMs in an applicable implementation plan are provided in paragraph (d) of this section.


(b) A project is considered to be from a conforming transportation plan if one of the following conditions applies:


(1) For projects which are required to be identified in the transportation plan in order to satisfy § 93.106 (“Content of transportation plans”), the project is specifically included in the conforming transportation plan and the project’s design concept and scope have not changed significantly from those which were described in the transportation plan, or in a manner which would significantly impact use of the facility; or


(2) For projects which are not required to be specifically identified in the transportation plan, the project is identified in the conforming transportation plan, or is consistent with the policies and purpose of the transportation plan and will not interfere with other projects specifically included in the transportation plan.


(c) A project is considered to be from a conforming program if the following conditions are met:


(1) The project is included in the conforming TIP and the design concept and scope of the project were adequate at the time of the TIP conformity determination to determine its contribution to the TIP’s regional emissions, and the project design concept and scope have not changed significantly from those which were described in the TIP; and


(2) If the TIP describes a project design concept and scope which includes project-level emissions mitigation or control measures, written commitments to implement such measures must be obtained from the project sponsor and/or operator as required by § 93.125(a) in order for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope of the project.


(d) TCMs. This criterion is not required to be satisfied for TCMs specifically included in an applicable implementation plan.


(e) Notwithstanding the requirements of paragraphs (a), (b), and (c) of this section, a project must meet the requirements of § 93.104(f) during the 12-month lapse grace period.


[62 FR 43801, Aug. 15, 1997, as amended at 73 FR 4440, Jan. 24, 2008]


§ 93.116 Criteria and procedures: Localized CO, PM10, and PM2.5 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). 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 and/or 93.119 requirements. The demonstration must be performed according to the consultation requirements of § 93.105(c)(1)(i) and the methodology requirements of § 93.123.


(b) This paragraph applies for CO nonattainment areas as described in § 93.109(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) and the methodology requirements of § 93.123.


[69 FR 40077, July 1, 2004, as amended at 71 FR 12510, Mar. 10, 2006; 73 FR 4440, Jan. 24, 2008; 75 FR 14285, Mar. 24, 2010; 77 FR 14988, Mar. 14, 2012]


§ 93.117 Criteria and procedures: Compliance with PM10 and PM2.5 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.


[69 FR 40078, July 1, 2004]


§ 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). This criterion is satisfied if it is demonstrated that emissions of the pollutants or pollutant precursors described in paragraph (c) of this section are less than or equal to the motor vehicle emissions budget(s) established in the applicable implementation plan or implementation plan submission.


(b) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each year for which the applicable (and/or submitted) implementation plan specifically establishes 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) 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 shall determine what must be considered in order to make such a finding;


(ii) For years after the last year of the maintenance plan, emissions must be less than or equal to the maintenance plan’s motor vehicle emissions budget(s) for the last year of the maintenance plan;


(iii) If an approved and/or submitted control strategy implementation plan has established motor vehicle emissions budgets for years in the time frame of the transportation plan, emissions in these years must be less than or equal to the control strategy implementation plan’s motor vehicle emissions budget(s) for these years; and


(iv) For any analysis years before the last year of the maintenance plan, emissions must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year.


(c) Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor in § 93.102(b) for which the area is in nonattainment or maintenance and for which the applicable implementation plan (or implementation plan submission) establishes a motor vehicle emissions budget.


(d) Consistency with the motor vehicle emissions budget(s) must be demonstrated by including emissions from the entire transportation system, including all regionally significant projects contained in the transportation plan and all other regionally significant highway and transit projects expected in the nonattainment or maintenance area in the timeframe of the transportation plan.


(1) Consistency with the motor vehicle emissions budget(s) must be demonstrated with a regional emissions analysis that meets the requirements of §§ 93.122 and 93.105(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)) provided they are not more than ten years apart and provided the analysis is performed for the attainment year (if it is in the timeframe of the transportation plan and conformity determination) and the last year of the timeframe of the conformity determination. Emissions in years for which consistency with motor vehicle emissions budgets must be demonstrated, as required in paragraph (b) of this section, may be determined by interpolating between the years for which the regional emissions analysis is performed.


(3) When the timeframe of the conformity determination is shortened under § 93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan, and for any year shown to exceed motor vehicle emissions budgets in a prior regional emissions analysis (if such a year extends beyond the timeframe of the conformity determination).


(e) Motor vehicle emissions budgets in submitted control strategy implementation plan revisions and submitted maintenance plans. (1) Consistency with the motor vehicle emissions budgets in submitted control strategy implementation plan revisions or maintenance plans must be demonstrated if EPA has declared the motor vehicle emissions budget(s) adequate for transportation conformity purposes, and the adequacy finding is effective. However, motor vehicle emissions budgets in submitted implementation plans do not supersede the motor vehicle emissions budgets in approved implementation plans for the same Clean Air Act requirement and the period of years addressed by the previously approved implementation plan, unless EPA specifies otherwise in its approval of a SIP.


(2) If EPA has not declared an implementation plan submission’s motor vehicle emissions budget(s) adequate for transportation conformity purposes, the budget(s) shall not be used to satisfy the requirements of this section. Consistency with the previously established motor vehicle emissions budget(s) must be demonstrated. If there are no previously approved implementation plans or implementation plan submissions with adequate motor vehicle emissions budgets, the interim emissions tests required by § 93.119 must be satisfied.


(3) If EPA declares an implementation plan submission’s motor vehicle emissions budget(s) inadequate for transportation conformity purposes after EPA had previously found the budget(s) adequate, and conformity of a transportation plan or TIP has already been determined by DOT using the budget(s), the conformity determination will remain valid. Projects included in that transportation plan or TIP could still satisfy §§ 93.114 and 93.115, which require a currently conforming transportation plan and TIP to be in place at the time of a project’s conformity determination and that projects come from a conforming transportation plan and TIP.


(4) EPA will not find a motor vehicle emissions budget in a submitted control strategy implementation plan revision or maintenance plan to be adequate for transportation conformity purposes unless the following minimum criteria are satisfied:


(i) The submitted control strategy implementation plan revision or maintenance plan was endorsed by the Governor (or his or her designee) and was subject to a State public hearing;


(ii) Before the control strategy implementation plan or maintenance plan was submitted to EPA, consultation among federal, State, and local agencies occurred; full implementation plan documentation was provided to EPA; and EPA’s stated concerns, if any, were addressed;


(iii) The motor vehicle emissions budget(s) is clearly identified and precisely quantified;


(iv) The motor vehicle emissions budget(s), when considered together with all other emissions sources, is consistent with applicable requirements for reasonable further progress, attainment, or maintenance (whichever is relevant to the given implementation plan submission);


(v) The motor vehicle emissions budget(s) is consistent with and clearly related to the emissions inventory and the control measures in the submitted control strategy implementation plan revision or maintenance plan; and


(vi) Revisions to previously submitted control strategy implementation plans or maintenance plans explain and document any changes to previously submitted budgets and control measures; impacts on point and area source emissions; any changes to established safety margins (see § 93.101 for definition); and reasons for the changes (including the basis for any changes related to emission factors or estimates of vehicle miles traveled).


(5) Before determining the adequacy of a submitted motor vehicle emissions budget, EPA will review the State’s compilation of public comments and response to comments that are required to be submitted with any implementation plan. EPA will document its consideration of such comments and responses in a letter to the State indicating the adequacy of the submitted motor vehicle emissions budget.


(6) When the motor vehicle emissions budget(s) used to satisfy the requirements of this section are established by an implementation plan submittal that has not yet been approved or disapproved by EPA, the MPO and DOT’s conformity determinations will be deemed to be a statement that the MPO and DOT are not aware of any information that would indicate that emissions consistent with the motor vehicle emissions budget will cause or contribute to any new violation of any standard; increase the frequency or severity of any existing violation of any standard; or delay timely attainment of any standard or any required interim emission reductions or other milestones.


(f) Adequacy review process for implementation plan submissions. EPA will use the procedure listed in paragraph (f)(1) or (f)(2) of this section to review the adequacy of an implementation plan submission:


(1) When EPA reviews the adequacy of an implementation plan submission prior to EPA’s final action on the implementation plan,


(i) EPA will notify the public through EPA’s website when EPA receives an implementation plan submission that will be reviewed for adequacy.


(ii) The public will have a minimum of 30 days to comment on the adequacy of the implementation plan submission. If the complete implementation plan is not accessible electronically through the internet and a copy is requested within 15 days of the date of the website notice, the comment period will be extended for 30 days from the date that a copy of the implementation plan is mailed.


(iii) After the public comment period closes, EPA will inform the State in writing whether EPA has found the submission adequate or inadequate for use in transportation conformity, including response to any comments submitted directly and review of comments submitted through the State process, or EPA will include the determination of adequacy or inadequacy in a proposed or final action approving or disapproving the implementation plan under paragraph (f)(2)(iii) of this section.


(iv) EPA will publish a Federal Register notice to inform the public of EPA’s finding. If EPA finds the submission adequate, the effective date of this finding will be 15 days from the date the notice is published as established in the Federal Register notice, unless EPA is taking a final approval action on the SIP as described in paragraph (f)(2)(iii) of this section.


(v) EPA will announce whether the implementation plan submission is adequate or inadequate for use in transportation conformity on EPA’s website. The website will also include EPA’s response to comments if any comments were received during the public comment period.


(vi) If after EPA has found a submission adequate, EPA has cause to reconsider this finding, EPA will repeat actions described in paragraphs (f)(1)(i) through (v) or (f)(2) of this section unless EPA determines that there is no need for additional public comment given the deficiencies of the implementation plan submission. In all cases where EPA reverses its previous finding to a finding of inadequacy under paragraph (f)(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) 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) 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.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40078, July 1, 2004; 73 FR 4440, Jan. 24, 2008; 75 FR 14285, Mar. 24, 2010; 77 FR 14988, Mar. 14, 2012]


§ 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). 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) if a regional emissions analysis that satisfies the requirements of § 93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section:


(i) The emissions predicted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and


(ii) The emissions predicted in the “Action” scenario are lower than emissions in the baseline year for that NAAQS as described in paragraph (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) if a regional emissions analysis that satisfies the requirements of § 93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section:


(i) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or


(ii) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (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) if a regional emissions analysis that satisfies the requirements of § 93.122 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section:


(i) The emissions predicted in the “Action” scenario are less than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; and


(ii) The emissions predicted in the “Action” scenario are lower than emissions in the baseline year for that NAAQS as described in paragraph (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 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section:


(i) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or


(ii) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (e) of this section.


(d) PM2.5, 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 and paragraphs (g) through (j) of this section demonstrates that for each analysis year and for each of the pollutants described in paragraph (f) of this section, one of the following requirements is met:


(1) The emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario, and this can be reasonably expected to be true in the periods between the analysis years; or


(2) The emissions predicted in the “Action” scenario are not greater than emissions in the baseline year for that NAAQS as described in paragraph (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 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, Subpart A) 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)) must also be an analysis year.


(2) For areas using paragraphs (b)(2)(i), (c)(2)(i), and (d)(1) of this section, a regional emissions analysis that satisfies the requirements of § 93.122 and paragraphs (g) through (j) of this section would not be required for analysis years in which the transportation projects and planning assumptions in the “Action” and “Baseline” scenarios are exactly the same. In such a case, paragraph (a) of this section can be satisfied by documenting that the transportation projects and planning assumptions in both scenarios are exactly the same, and consequently, the emissions predicted in the “Action” scenario are not greater than the emissions predicted in the “Baseline” scenario for such analysis years.


(3) When the timeframe of the conformity determination is shortened under § 93.106(d)(2), the conformity determination must be accompanied by a regional emissions analysis (for informational purposes only) for the last year of the transportation plan.


(h) “Baseline” scenario. The regional emissions analysis required by paragraphs (b) through (e) of this section must estimate the emissions that would result from the “Baseline” scenario in each analysis year. The “Baseline” scenario must be defined for each of the analysis years. The “Baseline” scenario is the future transportation system that will result from current programs, including the following (except that exempt projects listed in § 93.126 and projects exempt from regional emissions analysis as listed in § 93.127 need not be explicitly considered):


(1) All in-place regionally significant highway and transit facilities, services and activities;


(2) All ongoing travel demand management or transportation system management activities; and


(3) Completion of all regionally significant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (except for hardship acquisition and protective buying); come from the first year of the previously conforming transportation plan and/or TIP; or have completed the NEPA process.


(i) “Action” scenario. The regional emissions analysis required by paragraphs (b) and (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 and projects exempt from regional emissions analysis as listed in § 93.127 need not be explicitly considered):


(1) All facilities, services, and activities in the “Baseline” scenario;


(2) Completion of all TCMs and regionally significant projects (including facilities, services, and activities) specifically identified in the proposed transportation plan which will be operational or in effect in the analysis year, except that regulatory TCMs may not be assumed to begin at a future time unless the regulation is already adopted by the enforcing jurisdiction or the TCM is identified in the applicable implementation plan;


(3) All travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last conformity determination;


(4) The incremental effects of any travel demand management programs and transportation system management activities known to the MPO, but not included in the applicable implementation plan or utilizing any Federal funding or approval, which were adopted and/or funded prior to the date of the last conformity determination, but which have been modified since then to be more stringent or effective;


(5) Completion of all expected regionally significant highway and transit projects which are not from a conforming transportation plan and TIP; and


(6) Completion of all expected regionally significant non-FHWA/FTA highway and transit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year.


(j) Projects not from a conforming transportation plan and TIP. For the regional emissions analysis required by paragraphs (b) through (e) of this section, if the project which is not from a conforming transportation plan and TIP is a modification of a project currently in the plan or TIP, the ‘Baseline’ scenario must include the project with its original design concept and scope, and the ‘Action’ scenario must include the project with its new design concept and scope.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40079, July 1, 2004; 70 FR 24291, May 6, 2005; 73 FR 4441, Jan. 24, 2008; 75 FR 14285, Mar. 24, 2010; 77 FR 14988, Mar. 14, 2012]


§ 93.120 Consequences of control strategy implementation plan failures.

(a) Disapprovals. (1) If EPA disapproves any submitted control strategy implementation plan revision (with or without a protective finding), the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions as a result of the disapproval are imposed on the nonattainment area under section 179(b)(1) of the CAA. No new transportation plan, TIP, or project may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted and conformity to this submission is determined.


(2) If EPA disapproves a submitted control strategy implementation plan revision without making a protective finding, only projects in the first four years of the currently conforming transportation plan and TIP or that meet the requirements of § 93.104(f) during the 12-month lapse grace period may be found to conform. This means that beginning on the effective date of a disapproval without a protective finding, no transportation plan, TIP, or project not in the first four years of the currently conforming transportation plan and TIP or that meets the requirements of § 93.104(f) during the 12-month lapse grace period may be found to conform until another control strategy implementation plan revision fulfilling the same CAA requirements is submitted, EPA finds its motor vehicle emissions budget(s) adequate pursuant to § 93.118 or approves the submission, and conformity to the implementation plan revision is determined.


(3) In disapproving a control strategy implementation plan revision, EPA would give a protective finding where a submitted plan contains adopted control measures or written commitments to adopt enforceable control measures that fully satisfy the emissions reductions requirements relevant to the statutory provision for which the implementation plan revision was submitted, such as reasonable further progress or attainment.


(b) Failure to submit and incompleteness. In areas where EPA notifies the State, MPO, and DOT of the State’s failure to submit a control strategy implementation plan or submission of an incomplete control strategy implementation plan revision (either of which initiates the sanction process under CAA sections 179 or 110(m)), the conformity status of the transportation plan and TIP shall lapse on the date that highway sanctions are imposed on the nonattainment area for such failure under section 179(b)(1) of the CAA, unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator.


(c) Federal implementation plans. If EPA promulgates a Federal implementation plan that contains motor vehicle emissions budget(s) as a result of a State failure, the conformity lapse imposed by this section because of that State failure is removed.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004; 73 FR 4441, Jan. 24, 2008]


§ 93.121 Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or the Federal Transit Laws.

(a) Except as provided in paragraph (b) of this section, no recipient of Federal funds designated under title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following are met:


(1) The project comes from the currently conforming transportation plan and TIP (or meets the requirements of § 93.104(f) during the 12-month lapse grace period), and the project’s design concept and scope have not changed significantly from those that were included in the regional emissions analysis for that transportation plan and TIP;


(2) The project is included in the regional emissions analysis for the currently conforming transportation plan and TIP conformity determination (or meets the requirements of § 93.104(f) during the 12-month lapse grace period), even if the project is not strictly included in the transportation plan or TIP for the purpose of MPO project selection or endorsement, and the project’s design concept and scope have not changed significantly from those that were included in the regional emissions analysis; or


(3) A new regional emissions analysis including the project and the currently conforming transportation plan and TIP demonstrates that the transportation plan and TIP would still conform if the project were implemented (consistent with the requirements of §§ 93.118 and/or 93.119 for a project not from a conforming transportation plan and TIP).


(b) In isolated rural nonattainment and maintenance areas subject to § 93.109(g), no recipient of Federal funds designated under title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following are met:


(1) The project was included in the regional emissions analysis supporting the most recent conformity determination that reflects the portion of the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area, and the project’s design concept and scope has not changed significantly; or


(2) A new regional emissions analysis including the project and all other regionally significant projects expected in the nonattainment or maintenance area demonstrates that those projects in the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area would still conform if the project were implemented (consistent with the requirements of §§ 93.118 and/or 93.119 for projects not from a conforming transportation plan and TIP).


(c) Notwithstanding paragraphs (a) and (b) of this section, in nonattainment and maintenance areas subject to § 93.109(e) or (f) for a given pollutant/precursor and NAAQS, no recipient of Federal funds designated under title 23 U.S.C. or the Federal Transit Laws shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless the recipient finds that the requirements of one of the following are met for that pollutant/precursor and NAAQS:


(1) The project was included in the most recent conformity determination for the transportation plan and TIP and the project’s design concept and scope has not changed significantly; or


(2) The project was included in the most recent conformity determination that reflects the portion of the statewide transportation plan and statewide TIP which are in the nonattainment or maintenance area, and the project’s design concept and scope has not changed significantly.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004; 73 FR 4441, Jan. 24, 2008; 75 FR 14285, Mar. 24, 2010; 77 FR 14988, Mar. 14, 2012]


§ 93.122 Procedures for determining regional transportation-related emissions.

(a) General requirements. (1) The regional emissions analysis required by §§ 93.118 and 93.119 for the transportation plan, TIP, or project not from a conforming plan and TIP must include all regionally significant projects expected in the nonattainment or maintenance area. The analysis shall include FHWA/FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which are disclosed to the MPO as required by § 93.105. Projects which are not regionally significant are not required to be explicitly modeled, but vehicle miles traveled (VMT) from such projects must be estimated in accordance with reasonable professional practice. The effects of TCMs and similar projects that are not regionally significant may also be estimated in accordance with reasonable professional practice.


(2) The emissions analysis may not include for emissions reduction credit any TCMs or other measures in the applicable implementation plan which have been delayed beyond the scheduled date(s) until such time as their implementation has been assured. If the measure has been partially implemented and it can be demonstrated that it is providing quantifiable emission reduction benefits, the emissions analysis may include that emissions reduction credit.


(3) Emissions reduction credit from projects, programs, or activities which require a regulatory action in order to be implemented may not be included in the emissions analysis unless:


(i) The regulatory action is already adopted by the enforcing jurisdiction;


(ii) The project, program, or activity is included in the applicable implementation plan;


(iii) The control strategy implementation plan submission or maintenance plan submission that establishes the motor vehicle emissions budget(s) for the purposes of § 93.118 contains a written commitment to the project, program, or activity by the agency with authority to implement it; or


(iv) EPA has approved an opt-in to a Federally enforced program, EPA has promulgated the program (if the control program is a Federal responsibility, such as vehicle tailpipe standards), or the Clean Air Act requires the program without need for individual State action and without any discretionary authority for EPA to set its stringency, delay its effective date, or not implement the program.


(4) Emissions reduction credit from control measures that are not included in the transportation plan and TIP and that do not require a regulatory action in order to be implemented may not be included in the emissions analysis unless the conformity determination includes written commitments to implementation from the appropriate entities.


(i) Persons or entities voluntarily committing to control measures must comply with the obligations of such commitments.


(ii) The conformity implementation plan revision required in § 51.390 of this chapter must provide that written commitments to control measures that are not included in the transportation plan and TIP must be obtained prior to a conformity determination and that such commitments must be fulfilled.


(5) A regional emissions analysis for the purpose of satisfying the requirements of § 93.119 must make the same assumptions in both the “Baseline” and “Action” scenarios regarding control measures that are external to the transportation system itself, such as vehicle tailpipe or evaporative emission standards, limits on gasoline volatility, vehicle inspection and maintenance programs, and oxygenated or reformulated gasoline or diesel fuel.


(6) The ambient temperatures used for the regional emissions analysis shall be consistent with those used to establish the emissions budget in the applicable implementation plan. All other factors, for example the fraction of travel in a hot stabilized engine mode, must be consistent with the applicable implementation plan, unless modified after interagency consultation according to § 93.105(c)(1)(i) to incorporate additional or more geographically specific information or represent a logically estimated trend in such factors beyond the period considered in the applicable implementation plan.


(7) Reasonable methods shall be used to estimate nonattainment or maintenance area VMT on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.


(b) Regional emissions analysis in serious, severe, and extreme ozone nonattainment areas and serious CO nonattainment areas must meet the requirements of paragraphs (b) (1) through (3) of this section if their metropolitan planning area contains an urbanized area population over 200,000.


(1) By January 1, 1997, estimates of regional transportation-related emissions used to support conformity determinations must be made at a minimum using network-based travel models according to procedures and methods that are available and in practice and supported by current and available documentation. These procedures, methods, and practices are available from DOT and will be updated periodically. Agencies must discuss these modeling procedures and practices through the interagency consultation process, as required by § 93.105(c)(1)(i). Network-based travel models must at a minimum satisfy the following requirements:


(i) Network-based travel models must be validated against observed counts (peak and off-peak, if possible) for a base year that is not more than 10 years prior to the date of the conformity determination. Model forecasts must be analyzed for reasonableness and compared to historical trends and other factors, and the results must be documented;


(ii) Land use, population, employment, and other network-based travel model assumptions must be documented and based on the best available information;


(iii) Scenarios of land development and use must be consistent with the future transportation system alternatives for which emissions are being estimated. The distribution of employment and residences for different transportation options must be reasonable;


(iv) A capacity-sensitive assignment methodology must be used, and emissions estimates must be based on a methodology which differentiates between peak and off-peak link volumes and speeds and uses speeds based on final assigned volumes;


(v) Zone-to-zone travel impedances used to distribute trips between origin and destination pairs must be in reasonable agreement with the travel times that are estimated from final assigned traffic volumes. Where use of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should also be used for modeling mode splits; and


(vi) Network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and other factors affecting travel choices.


(2) Reasonable methods in accordance with good practice must be used to estimate traffic speeds and delays in a manner that is sensitive to the estimated volume of travel on each roadway segment represented in the network-based travel model.


(3) Highway Performance Monitoring System (HPMS) estimates of vehicle miles traveled (VMT) shall be considered the primary measure of VMT within the portion of the nonattainment or maintenance area and for the functional classes of roadways included in HPMS, for urban areas which are sampled on a separate urban area basis. For areas with network-based travel models, a factor (or factors) may be developed to reconcile and calibrate the network-based travel model estimates of VMT in the base year of its validation to the HPMS estimates for the same period. These factors may then be applied to model estimates of future VMT. In this factoring process, consideration will be given to differences between HPMS and network-based travel models, such as differences in the facility coverage of the HPMS and the modeled network description. Locally developed count- based programs and other departures from these procedures are permitted subject to the interagency consultation procedures of § 93.105(c)(1)(i).


(c) Two-year grace period for regional emissions analysis requirements in certain ozone and CO areas. The requirements of paragraph (b) of this section apply to such areas or portions of such areas that have not previously been required to meet these requirements for any existing NAAQS two years from the following:


(1) The effective date of EPA’s reclassification of an ozone or CO nonattainment area that has an urbanized area population greater than 200,000 to serious or above;


(2) The official notice by the Census Bureau that determines the urbanized area population of a serious or above ozone or CO nonattainment area to be greater than 200,000; or,


(3) The effective date of EPA’s action that classifies a newly designated ozone or CO nonattainment area that has an urbanized area population greater than 200,000 as serious or above.


(d) In all areas not otherwise subject to paragraph (b) of this section, regional emissions analyses must use those procedures described in paragraph (b) of this section if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to paragraph (b) of this section may estimate regional emissions using any appropriate methods that account for VMT growth by, for example, extrapolating historical VMT or projecting future VMT by considering growth in population and historical growth trends for VMT per person. These methods must also consider future economic activity, transit alternatives, and transportation system policies.


(e) PM10 from construction-related fugitive dust. (1) For areas in which the implementation plan does not identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the fugitive PM10 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.


(2) In PM10 nonattainment and maintenance areas with implementation plans which identify construction-related fugitive PM10 as a contributor to the nonattainment problem, the regional PM10 emissions analysis shall consider construction-related fugitive PM10 and shall account for the level of construction activity, the fugitive PM10 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.


(f) PM2.5 from construction-related fugitive dust. (1) For PM2.5 areas in which the implementation plan does not identify construction-related fugitive PM2.5 as a significant contributor to the nonattainment problem, the fugitive PM2.5 emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.


(2) In PM2.5 nonattainment and maintenance areas with implementation plans which identify construction-related fugitive PM2.5 as a significant contributor to the nonattainment problem, the regional PM2.5 emissions analysis shall consider construction-related fugitive PM2.5 and shall account for the level of construction activity, the fugitive PM2.5 control measures in the applicable implementation plan, and the dust-producing capacity of the proposed activities.


(g) Reliance on previous regional emissions analysis. (1) Conformity determinations for a new transportation plan and/or TIP may be demonstrated to satisfy the requirements of §§ 93.118 (“Motor vehicle emissions budget”) or 93.119 (“Interim emissions in areas without motor vehicle emissions budgets”) without new regional emissions analysis if the previous regional emissions analysis also applies to the new plan and/or TIP. This requires a demonstration that:


(i) The new plan and/or TIP contain all projects which must be started in the plan and TIP’s timeframes in order to achieve the highway and transit system envisioned by the transportation plan;


(ii) All plan and TIP projects which are regionally significant are included in the transportation plan with design concept and scope adequate to determine their contribution to the transportation plan’s and/or TIP’s regional emissions at the time of the previous conformity determination;


(iii) The design concept and scope of each regionally significant project in the new plan and/or TIP are not significantly different from that described in the previous transportation plan; and


(iv) The previous regional emissions analysis is consistent with the requirements of §§ 93.118 (including that conformity to all currently applicable budgets is demonstrated) and/or 93.119, as applicable.


(2) A project which is not from a conforming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of § 93.118 or § 93.119 without additional regional emissions analysis if allocating funds to the project will not delay the implementation of projects in the transportation plan or TIP which are necessary to achieve the highway and transit system envisioned by the transportation plan, the previous regional emissions analysis is still consistent with the requirements of § 93.118 (including that conformity to all currently applicable budgets is demonstrated) and/or § 93.119, as applicable, and if the project is either:


(i) Not regionally significant; or


(ii) Included in the conforming transportation plan (even if it is not specifically included in the latest conforming TIP) with design concept and scope adequate to determine its contribution to the transportation plan’s regional emissions at the time of the transportation plan’s conformity determination, and the design concept and scope of the project is not significantly different from that described in the transportation plan.


(3) A conformity determination that relies on paragraph (g) of this section does not satisfy the frequency requirements of § 93.104(b) or (c).


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40080, July 1, 2004]


§ 93.123 Procedures for determining localized CO, PM10, and PM2.5 concentrations (hot-spot analysis).

(a) CO hot-spot analysis. (1) The demonstrations required by § 93.116 (“Localized CO, PM10, and PM2.5 violations”) must be based on quantitative analysis using the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51, Appendix W (Guideline on Air Quality Models). These procedures shall be used in the following cases, unless different procedures developed through the interagency consultation process required in § 93.105 and approved by the EPA Regional Administrator are used:


(i) For projects in or affecting locations, areas, or categories of sites which are identified in the applicable implementation plan as sites of violation or possible violation;


(ii) For projects affecting intersections that are at Level-of-Service D, E, or F, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes related to the project;


(iii) For any project affecting one or more of the top three intersections in the nonattainment or maintenance area with highest traffic volumes, as identified in the applicable implementation plan; and


(iv) For any project affecting one or more of the top three intersections in the nonattainment or maintenance area with the worst level of service, as identified in the applicable implementation plan.


(2) In cases other than those described in paragraph (a)(1) of this section, the demonstrations required by § 93.116 may be based on either:


(i) Quantitative methods that represent reasonable and common professional practice; or


(ii) A qualitative consideration of local factors, if this can provide a clear demonstration that the requirements of § 93.116 are met.


(3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that (93.116(a) is met without further hot-spot analysis for any project described in paragraphs (a)(1) and (a)(2) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given CO nonattainment or maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects.


(b) PM10 and PM2.5 hot-spot analyses. (1) The hot-spot demonstration required by § 93.116 must be based on quantitative analysis methods for the following types of projects:


(i) New highway projects that have a significant number of diesel vehicles, and expanded highway projects that have a significant increase in the number of diesel vehicles;


(ii) Projects affecting intersections that are at Level-of-Service D, E, or F with a significant number of diesel vehicles, or those that will change to Level-of-Service D, E, or F because of increased traffic volumes from a significant number of diesel vehicles related to the project;


(iii) New bus and rail terminals and transfer points that have a significant number of diesel vehicles congregating at a single location;


(iv) Expanded bus and rail terminals and transfer points that significantly increase the number of diesel vehicles congregating at a single location; and


(v) Projects in or affecting locations, areas, or categories of sites which are identified in the PM10 or PM2.5 applicable implementation plan or implementation plan submission, as appropriate, as sites of violation or possible violation.


(2) Where quantitative analysis methods are not available, the demonstration required by § 93.116 for projects described in paragraph (b)(1) of this section must be based on a qualitative consideration of local factors.


(3) DOT, in consultation with EPA, may also choose to make a categorical hot-spot finding that § 93.116 is met without further hot-spot analysis for any project described in paragraph (b)(1) of this section based on appropriate modeling. DOT, in consultation with EPA, may also consider the current air quality circumstances of a given PM2.5 or PM10 nonattainment or maintenance area in categorical hot-spot findings for applicable FHWA or FTA projects.


(4) The requirements for quantitative analysis contained in this paragraph (b) will not take effect until EPA releases modeling guidance on this subject and announces in the Federal Register that these requirements are in effect.


(c) General requirements. (1) Estimated pollutant concentrations must be based on the total emissions burden which may result from the implementation of the project, summed together with future background concentrations. The total concentration must be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project.


(2) Hot-spot analyses must include the entire project, and may be performed only after the major design features which will significantly impact concentrations have been identified. The future background concentration should be estimated by multiplying current background by the ratio of future to current traffic and the ratio of future to current emission factors.


(3) Hot-spot analysis assumptions must be consistent with those in the regional emissions analysis for those inputs which are required for both analyses.


(4) CO, PM10, or PM2.5 mitigation or control measures shall be assumed in the hot-spot analysis only where there are written commitments from the project sponsor and/or operator to implement such measures, as required by § 93.125(a).


(5) CO, PM10, and PM2.5 hot-spot analyses are not required to consider construction-related activities which cause temporary increases in emissions. Each site which is affected by construction-related activities shall be considered separately, using established “Guideline” methods. Temporary increases are defined as those which occur only during the construction phase and last five years or less at any individual site.


[58 FR 62235, Nov. 24, 1993, as amended at 71 FR 12510, Mar. 10, 2006; 73 FR 4441, Jan. 24, 2008]


§ 93.124 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission).

(a) In interpreting an applicable implementation plan (or implementation plan submission) with respect to its motor vehicle emissions budget(s), the MPO and DOT may not infer additions to the budget(s) that are not explicitly intended by the implementation plan (or submission). Unless the implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that some or all of this additional amount should be available to the MPO and DOT in the emissions budget for conformity purposes, the MPO may not interpret the budget to be higher than the implementation plan’s estimate of future emissions. This applies in particular to applicable implementation plans (or submissions) which demonstrate that after implementation of control measures in the implementation plan:


(1) Emissions from all sources will be less than the total emissions that would be consistent with a required demonstration of an emissions reduction milestone;


(2) Emissions from all sources will result in achieving attainment prior to the attainment deadline and/or ambient concentrations in the attainment deadline year will be lower than needed to demonstrate attainment; or


(3) Emissions will be lower than needed to provide for continued maintenance.


(b) A conformity demonstration shall not trade emissions among budgets which the applicable implementation plan (or implementation plan submission) allocates for different pollutants or precursors, or among budgets allocated to motor vehicles and other sources, unless the implementation plan establishes appropriate mechanisms for such trades.


(c) If the applicable implementation plan (or implementation plan submission) estimates future emissions by geographic subarea of the nonattainment area, the MPO and DOT are not required to consider this to establish subarea budgets, unless the applicable implementation plan (or implementation plan submission) explicitly indicates an intent to create such subarea budgets for the purposes of conformity.


(d) If a nonattainment area includes more than one MPO, the implementation plan may establish motor vehicle emissions budgets for each MPO, or else the MPOs must collectively make a conformity determination for the entire nonattainment area.


[62 FR 43801. Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004]


§ 93.125 Enforceability of design concept and scope and project-level mitigation and control measures.

(a) Prior to determining that a transportation project is in conformity, the MPO, other recipient of funds designated under title 23 U.S.C. or the Federal Transit Laws, FHWA, or FTA must obtain from the project sponsor and/or operator written commitments to implement in the construction of the project and operation of the resulting facility or service any project-level mitigation or control measures which are identified as conditions for NEPA process completion with respect to local CO, PM10, or PM2.5 impacts. Before a conformity determination is made, written commitments must also be obtained for project-level mitigation or control measures which are conditions for making conformity determinations for a transportation plan or TIP and are included in the project design concept and scope which is used in the regional emissions analysis required by §§ 93.118 (“Motor vehicle emissions budget”) and 93.119 (“Interim emissions in areas without motor vehicle emissions budgets”) or used in the project-level hot-spot analysis required by § 93.116.


(b) Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations must comply with the obligations of such commitments.


(c) The implementation plan revision required in § 51.390 of this chapter shall provide that written commitments to mitigation measures must be obtained prior to a positive conformity determination, and that project sponsors must comply with such commitments.


(d) If the MPO or project sponsor believes the mitigation or control measure is no longer necessary for conformity, the project sponsor or operator may be relieved of its obligation to implement the mitigation or control measure if it can demonstrate that the applicable hot-spot requirements of § 93.116, emission budget requirements of § 93.118, and interim emissions requirements of § 93.119 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under § 93.105. The MPO and DOT must find that the transportation plan and TIP still satisfy the applicable requirements of §§ 93.118 and/or 93.119 and that the project still satisfies the requirements of § 93.116, and therefore that the conformity determinations for the transportation plan, TIP, and project are still valid. This finding is subject to the applicable public consultation requirements in § 93.105(e) for conformity determinations for projects.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004; 71 FR 12510, Mar. 10, 2006]


§ 93.126 Exempt projects.

Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in table 2 of this section are exempt from the requirement to determine conformity. Such projects may proceed toward implementation even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in table 2 of this section is not exempt if the MPO in consultation with other agencies (see § 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potentially adverse emissions impacts for any reason. States and MPOs must ensure that exempt projects do not interfere with TCM implementation. Table 2 follows:



Table 2 – Exempt Projects

Safety

Railroad/highway crossing.

Projects that correct, improve, or eliminate a hazardous location or feature.

Safer non-Federal-aid system roads.

Shoulder improvements.

Increasing sight distance.

Highway Safety Improvement Program implementation.

Traffic control devices and operating assistance other than signalization projects.

Railroad/highway crossing warning devices.

Guardrails, median barriers, crash cushions.

Pavement resurfacing and/or rehabilitation.

Pavement marking.

Emergency relief (23 U.S.C. 125).

Fencing.

Skid treatments.

Safety roadside rest areas.

Adding medians.

Truck climbing lanes outside the urbanized area.

Lighting improvements.

Widening narrow pavements or reconstructing bridges (no additional travel lanes).

Emergency truck pullovers.

Mass Transit

Operating assistance to transit agencies.

Purchase of support vehicles.

Rehabilitation of transit vehicles
1.

Purchase of office, shop, and operating equipment for existing facilities.

Purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.).

Construction or renovation of power, signal, and communications systems.

Construction of small passenger shelters and information kiosks.

Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures).

Rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-of-way.

Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet
1.

Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR part 771.

Air Quality

Continuation of ride-sharing and van-pooling promotion activities at current levels.

Bicycle and pedestrian facilities.

Other

Specific activities which do not involve or lead directly to construction, such as:

Planning and technical studies.

Grants for training and research programs.

Planning activities conducted pursuant to titles 23 and 49 U.S.C.

Federal-aid systems revisions.

Engineering to assess social, economic, and environmental effects of the proposed action or alternatives to that action.

Noise attenuation.

Emergency or hardship advance land acquisitions (23 CFR 710.503).

Acquisition of scenic easements.

Plantings, landscaping, etc.

Sign removal.

Directional and informational signs.

Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities).

Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational or capacity changes.


Note:


1In PM10 and PM2.5 nonattainment or maintenance areas, such projects are exempt only if they are in compliance with control measures in the applicable implementation plan.


[62 FR 43801, Aug. 15, 1997, as amended at 69 FR 40081, July 1, 2004; 71 FR 12510, Mar. 10, 2006; 73 FR 4441, Jan. 24, 2008]


§ 93.127 Projects exempt from regional emissions analyses.

Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in Table 3 of this section are exempt from regional emissions analysis requirements. The local effects of these projects with respect to CO concentrations must be considered to determine if a hot-spot analysis is required prior to making a project-level conformity determination. The local effects of projects with respect to PM10 and PM2.5 concentrations must be considered and a hot-spot analysis performed prior to making a project-level conformity determination, if a project in Table 3 also meets the criteria in § 93.123(b)(1). These projects may then proceed to the project development process even in the absence of a conforming transportation plan and TIP. A particular action of the type listed in Table 3 of this section is not exempt from regional emissions analysis if the MPO in consultation with other agencies (see § 93.105(c)(1)(iii)), the EPA, and the FHWA (in the case of a highway project) or the FTA (in the case of a transit project) concur that it has potential regional impacts for any reason. Table 3 follows:



Table 3 – Projects Exempt From Regional Emissions Analyses

Intersection channelization projects.

Intersection signalization projects at individual intersections.

Interchange reconfiguration projects.

Changes in vertical and horizontal alignment.

Truck size and weight inspection stations.

Bus terminals and transfer points.

[58 FR 62235, Nov. 24, 1993, as amended at 71 FR 12511, Mar. 10, 2006]


§ 93.128 Traffic signal synchronization projects.

Traffic signal synchronization projects may be approved, funded, and implemented without satisfying the requirements of this subpart. However, all subsequent regional emissions analyses required by §§ 93.118 and 93.119 for transportation plans, TIPs, or projects not from a conforming plan and TIP must include such regionally significant traffic signal synchronization projects.


§ 93.129 Special exemptions from conformity requirements for pilot program areas.

EPA and DOT may exempt no more than six areas for no more than three years from certain requirements of this subpart if these areas are selected to participate in a conformity pilot program and have developed alternative requirements that have been approved by EPA as an implementation plan revision in accordance with § 51.390 of this chapter. For the duration of the pilot program, areas selected to participate in the pilot program must comply with the conformity requirements of the pilot area’s implementation plan revision for § 51.390 of this chapter and all other requirements in 40 CFR parts 51 and 93 that are not covered by the pilot area’s implementation plan revision for § 51.390 of this chapter. The alternative conformity requirements in conjunction with any applicable state and/or federal conformity requirements must be proposed to fulfill all of the requirements of and achieve results equivalent to or better than section 176(c) of the Clean Air Act. After the three-year duration of the pilot program has expired, areas will again be subject to all of the requirements of this subpart and 40 CFR part 51, subpart T, and/or to the requirements of any implementation plan revision that was previously approved by EPA in accordance with § 51.390 of this chapter.


[64 FR 13483, Mar. 18, 1999]


Subpart B – Determining Conformity of General Federal Actions to State or Federal Implementation Plans


Source:58 FR 63253, Nov. 30, 1993, unless otherwise noted.

§ 93.150 Prohibition.

(a) No department, agency or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve any activity which does not conform to an applicable implementation plan.


(b) A Federal agency must make a determination that a Federal action conforms to the applicable implementation plan in accordance with the requirements of this subpart before the action is taken.


(c) [Reserved]


(d) Notwithstanding any provision of this subpart, a determination that an action is in conformance with the applicable implementation plan does not exempt the action from any other requirements of the applicable implementation plan, the National Environmental Policy Act (NEPA), or the Clean Air Act (Act).


(e) If an action would result in emissions originating in more than one nonattainment or maintenance area, the conformity must be evaluated for each area separately.


[58 FR 63253, Nov. 30, 1993; 58 FR 67442, Dec. 21, 1993; 75 FR 17272, Apr. 5, 2010]


§ 93.151 State implementation plan (SIP) revision.

The provisions and requirements of this subpart to demonstrate conformity required under section 176(c) of the Clean Air Act (CAA) apply to all Federal actions in designated nonattainment and maintenance areas where EPA has not approved the General Conformity SIP revision allowed under 40 CFR 51.851. When EPA approves a State’s or Tribe’s conformity provisions (or a portion thereof) in a revision to an applicable implementation plan, a conformity evaluation is governed by the approved (or approved portion of the) State or Tribe’s criteria and procedures. The Federal conformity regulations contained in this subpart apply only for the portions, if any, of the part 93 requirements not contained in the State or Tribe conformity provisions approved by EPA. In addition, any previously applicable implementation plan conformity requirements remain enforceable until the EPA approves the revision to the applicable SIP to specifically include the revised requirements or remove requirements.


[75 FR 17272, Apr. 5, 2010]


§ 93.152 Definitions.

Terms used but not defined in this part shall have the meaning given them by the Act and EPA’s regulations (40 CFR chapter I), in that order of priority.


Affected Federal land manager means the Federal agency or the Federal official charged with direct responsibility for management of an area designated as Class I under the Act (42 U.S.C. 7472) that is located within 100 km of the proposed Federal action.


Applicability analysis is the process of determining if your Federal action must be supported by a conformity determination.


Applicable implementation plan or applicable SIP means the portion (or portions) of the SIP or most recent revision thereof, which has been approved under section 110(k) of the Act, a Federal implementation plan promulgated under section 110(c) of the Act, or a plan promulgated or approved pursuant to section 301 (d) of the Act (Tribal implementation plan or TIP) and which implements the relevant requirements of the Act.


Areawide air quality modeling analysis means an assessment on a scale that includes the entire nonattainment or maintenance area using an air quality dispersion model or photochemical grid model to determine the effects of emissions on air quality, for example, an assessment using EPA’s community multi-scale air quality (CMAQ) modeling system.


Cause or contribute to a new violation means a Federal action that:


(1) Causes a new violation of a national ambient air quality standard (NAAQS) at a location in a nonattainment or maintenance area which would otherwise not be in violation of the standard during the future period in question if the Federal action were not taken; or


(2) Contributes, in conjunction with other reasonably foreseeable actions, to a new violation of a NAAQS at a location in a nonattainment or maintenance area in a manner that would increase the frequency or severity of the new violation.


Caused by, as used in the terms “direct emissions” and “indirect emissions,” means emissions that would not otherwise occur in the absence of the Federal action.


Confidential business information (CBI) means information that has been determined by a Federal agency, in accordance with its applicable regulations, to be a trade secret, or commercial or financial information obtained from a person and privileged or confidential and is exempt from required disclosure under the Freedom of Information Act (5 U.S.C. 552(b)(4)).


Conformity determination is the evaluation (made after an applicability analysis is completed) that a Federal action conforms to the applicable implementation plan and meets the requirements of this subpart.


Conformity evaluation is the entire process from the applicability analysis through the conformity determination that is used to demonstrate that the Federal action conforms to the requirements of this subpart.


Continuing program responsibility means a Federal agency has responsibility for emissions caused by:


(1) Actions it takes itself; or


(2) Actions of non-Federal entities that the Federal agency, in exercising its normal programs and authorities, approves, funds, licenses or permits, provided the agency can impose conditions on any portion of the action that could affect the emissions.


Continuous program to implement means that the Federal agency has started the action identified in the plan and does not stop the actions for more than an 18-month period, unless it can demonstrate that such a stoppage was included in the original plan.


Criteria pollutant or standard means any pollutant for which there is established a NAAQS at 40 CFR part 50.


Direct emissions means those emissions of a criteria pollutant or its precursors that are caused or initiated by the Federal action and originate in a nonattainment or maintenance area and occur at the same time and place as the action and are reasonably foreseeable.


Emergency means a situation where extremely quick action on the part of the Federal agencies involved is needed and where the timing of such Federal activities makes it impractical to meet the requirements of this subpart, such as natural disasters like hurricanes or earthquakes, civil disturbances such as terrorist acts and military mobilizations.


Emission inventory means a listing of information on the location, type of source, type and quantity of pollutant emitted as well as other parameters of the emissions.


Emissions budgets are those portions of the applicable SIP’s projected emission inventories that describe the levels of emissions (mobile, stationary, area, etc.) that provide for meeting reasonable further progress milestones, attainment, and/or maintenance for any criteria pollutant or its precursors.


Emissions offsets, for purposes of § 93.158, are emissions reductions which are quantifiable, consistent with the applicable SIP attainment and reasonable further progress demonstrations, surplus to reductions required by, and credited to, other applicable SIP provisions, enforceable at both the State and Federal levels, and permanent within the timeframe specified by the program.


EPA means the U.S. Environmental Protection Agency.


Federal action means any activity engaged in by a department, agency, or instrumentality of the Federal government, or any activity that a department, agency or instrumentality of the Federal government supports in any way, provides financial assistance for, licenses, permits, or approves, other than activities related to transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the Federal action is a permit, license, or other approval for some aspect of a non-Federal undertaking, the relevant activity is the part, portion, or phase of the non-Federal undertaking that requires the Federal permit, license, or approval.


Federal agency means, for purposes of this subpart, a Federal department, agency, or instrumentality of the Federal government.


Increase the frequency or severity of any existing violation of any standard in any area means to cause a nonattainment area 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.


Indirect emissions means those emissions of a criteria pollutant or its precursors:


(1) That are caused or initiated by the Federal action and originate in the same nonattainment or maintenance area but occur at a different time or place as the action;


(2) That are reasonably foreseeable;


(3) That the agency can practically control; and


(4) For which the agency has continuing program responsibility.


For the purposes of this definition, even if a Federal licensing, rulemaking or other approving action is a required initial step for a subsequent activity that causes emissions, such initial steps do not mean that a Federal agency can practically control any resulting emissions.


Local air quality modeling analysis means an assessment of localized impacts on a scale smaller than the entire nonattainment or maintenance area, including, for example, congested roadways on a Federal facility, which uses an air quality dispersion model (e.g., Industrial Source Complex Model or Emission and Dispersion Model System) to determine the effects of emissions on air quality.


Maintenance area means an area that was designated as nonattainment and has been re-designated in 40 CFR part 81 to attainment, meeting the provisions of section 107(d)(3)(E) of the Act and has a maintenance plan approved under section 175A of the Act.


Maintenance plan means a revision to the applicable SIP, meeting the requirements of section 175A of the Act.


Metropolitan Planning Organization (MPO) means the policy board of an organization created as a result of the designation process in 23 U.S.C. 134(d).


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


Mitigation measure means any method of reducing emissions of the pollutant or its precursor taken at the location of the Federal action and used to reduce the impact of the emissions of that pollutant caused by the action.


National ambient air quality standards (NAAQS) are those standards established pursuant to section 109 of the Act and include standards for carbon monoxide (CO2), lead (Pb), nitrogen dioxide (NO2), ozone, particulate matter (PM-10 and PM2.5), and sulfur dioxide (SO2).


Nonattainment area means an area designated as nonattainment under section 107 of the Act and described in 40 CFR part 81.


Precursors of a criteria pollutant are:


(1) For ozone, nitrogen oxides (NOx), unless an area is exempted from NOx requirements under section 182(f) of the Act, and volatile organic compounds (VOC).


(2) For PM-10, those pollutants described in the PM-10 nonattainment area applicable SIP as significant contributors to the PM-10 levels.


(3) For PM2.5:


(i) Sulfur dioxide (SO2) in all PM2.5 nonattainment and maintenance areas,


(ii) Nitrogen oxides in all PM2.5 nonattainment and maintenance areas unless both the State and EPA determine that it is not a significant precursor, and


(iii) Volatile organic compounds (VOC) and ammonia (NH3) only in PM2.5 nonattainment or maintenance areas where either the State or EPA determines that they are significant precursors.


Reasonably foreseeable emissions are projected future direct and indirect emissions that are identified at the time the conformity determination is made; the location of such emissions is known and the emissions are quantifiable as described and documented by the Federal agency based on its own information and after reviewing any information presented to the Federal agency.


Regional water and/or wastewater projects include construction, operation, and maintenance of water or wastewater conveyances, water or wastewater treatment facilities, and water storage reservoirs which affect a large portion of a nonattainment or maintenance area.


Restricted information is information that is privileged or that is otherwise protected from disclosure pursuant to applicable statutes, Executive Orders, or regulations. Such information includes, but is not limited to: Classified national security information, protected critical infrastructure information, sensitive security information, and proprietary business information.


Take or start the Federal action means the date that the Federal agency signs or approves the permit, license, grant or contract or otherwise physically begins the Federal action that requires a conformity evaluation under this subpart.


Total of direct and indirect emissions means the sum of direct and indirect emissions increases and decreases caused by the Federal action; i.e., the “net” emissions considering all direct and indirect emissions. The portion of emissions which are exempt or presumed to conform under § 93.153 (c), (d), (e), or (f) are not included in the “total of direct and indirect emissions.” The “total of direct and indirect emissions” includes emissions of criteria pollutants and emissions of precursors of criteria pollutants.


Tribal implementation plan (TIP) means a plan to implement the national ambient air quality standards adopted and submitted by a federally recognized Indian tribal government determined to be eligible under 40 CFR 49.9 and the plan has been approved by EPA.


[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July 17, 2006; 75 FR 17273, Apr. 3, 2010]


§ 93.153 Applicability.

(a) Conformity determinations for Federal actions related to transportation plans, programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.) must meet the procedures and criteria of 40 CFR part 51, subpart T, in lieu of the procedures set forth in this subpart.


(b) For Federal actions not covered by paragraph (a) of this section, a conformity determination is required for each criteria pollutant or precursor where the total of direct and indirect emissions of the criteria pollutant or precursor in a nonattainment or maintenance area caused by a Federal action would equal or exceed any of the rates in paragraphs (b)(1) or (2) of this section.


(1) For purposes of paragraph (b) of this section the following rates apply in nonattainment areas (NAA’s):



Tons/year
Ozone (VOC’s or NOX):
Serious NAA’s50
Severe NAA’s25
Extreme NAA’s10
Other ozone NAA’s outside an ozone transport region100
Other ozone NAA’s inside an ozone transport region:
VOC50
NOX100
Carbon Monoxide: All maintenance areas100
SO2 or NO2: All NAA’s100
PM10:
Moderate NAA’s100
Serious NAA’s70
PM2.5 (direct emissions, SO2, NOX, VOC, and Ammonia):
Moderate NAA’s100
Serious NAA’s70
Pb: All NAA’s25

(2) For purposes of paragraph (b) of this section the following rates apply in maintenance areas:



Tons/year
Ozone (NOX), SO2 or NO2:
All maintenance areas100
Ozone (VOC’s)
Maintenance areas inside an ozone transport region50
Maintenance areas outside an ozone transport region100
Carbon monoxide: All maintenance areas100
PM10: All maintenance areas100
PM2.5 (direct emissions, SO2, NOX, VOC, and Ammonia)100
All maintenance areas100
Pb: All maintenance areas25

(c) The requirements of this subpart shall not apply to the following Federal actions:


(1) Actions where the total of direct and indirect emissions are below the emissions levels specified in paragraph (b) of this section.


(2) Actions which would result in no emissions increase or an increase in emissions that is clearly de minimis:


(i) Judicial and legislative proceedings.


(ii) Continuing and recurring activities such as permit renewals where activities conducted will be similar in scope and operation to activities currently being conducted.


(iii) Rulemaking and policy development and issuance.


(iv) Routine maintenance and repair activities, including repair and maintenance of administrative sites, roads, trails, and facilities.


(v) Civil and criminal enforcement activities, such as investigations, audits, inspections, examinations, prosecutions, and the training of law enforcement personnel.


(vi) Administrative actions such as personnel actions, organizational changes, debt management or collection, cash management, internal agency audits, program budget proposals, and matters relating to the administration and collection of taxes, duties and fees.


(vii) The routine, recurring transportation of materiel and personnel.


(viii) Routine movement of mobile assets, such as ships and aircraft, in home port reassignments and stations (when no new support facilities or personnel are required) to perform as operational groups and/or for repair or overhaul.


(ix) Maintenance dredging and debris disposal where no new depths are required, applicable permits are secured, and disposal will be at an approved disposal site.


(x) Actions, such as the following, with respect to existing structures, properties, facilities and lands where future activities conducted will be similar in scope and operation to activities currently being conducted at the existing structures, properties, facilities, and lands; for example, relocation of personnel, disposition of federally-owned existing structures, properties, facilities, and lands, rent subsidies, operation and maintenance cost subsidies, the exercise of receivership or conservatorship authority, assistance in purchasing structures, and the production of coins and currency.


(xi) The granting of leases, licenses such as for exports and trade, permits, and easements where activities conducted will be similar in scope and operation to activities currently being conducted.


(xii) Planning, studies, and provision of technical assistance.


(xiii) Routine operation of facilities, mobile assets and equipment.


(xiv) Transfers of ownership, interests, and titles in land, facilities, and real and personal properties, regardless of the form or method of the transfer.


(xv) The designation of empowerment zones, enterprise communities, or viticultural areas.


(xvi) Actions by any of the Federal banking agencies or the Federal Reserve Banks, including actions regarding charters, applications, notices, licenses, the supervision or examination of depository institutions or depository institution holding companies, access to the discount window, or the provision of financial services to banking organizations or to any department, agency or instrumentality of the United States.


(xvii) Actions by the Board of Governors of the Federal Reserve System or any Federal Reserve Bank necessary to effect monetary or exchange rate policy.


(xviii) Actions that implement a foreign affairs function of the United States.


(xix) Actions (or portions thereof) associated with transfers of land, facilities, title, and real properties through an enforceable contract or lease agreement where the delivery of the deed is required to occur promptly after a specific, reasonable condition is met, such as promptly after the land is certified as meeting the requirements of CERCLA, and where the Federal agency does not retain continuing authority to control emissions associated with the lands, facilities, title, or real properties.


(xx) Transfers of real property, including land, facilities, and related personal property from a Federal entity to another Federal entity and assignments of real property, including land, facilities, and related personal property from a Federal entity to another Federal entity for subsequent deeding to eligible applicants.


(xxi) Actions by the Department of the Treasury to effect fiscal policy and to exercise the borrowing authority of the United States.


(xxii) Air traffic control activities and adopting approach, departure, and enroute procedures for aircraft operations above the mixing height specified in the applicable SIP or TIP. Where the applicable SIP or TIP does not specify a mixing height, the Federal agency can use the 3,000 feet above ground level as a default mixing height, unless the agency demonstrates that use of a different mixing height is appropriate because the change in emissions at and above that height caused by the Federal action is de minimis.


(3) Actions where the emissions are not reasonably foreseeable, such as the following:


(i) Initial Outer Continental Shelf lease sales which are made on a broad scale and are followed by exploration and development plans on a project level.


(ii) Electric power marketing activities that involve the acquisition, sale and transmission of electric energy.


(4) Actions which implement a decision to conduct or carry out a conforming program such as prescribed burning actions which are consistent with a conforming land management plan.


(d) Notwithstanding the other requirements of this subpart, a conformity determination is not required for the following Federal actions (or portion thereof):


(1) The portion of an action that includes major or minor new or modified stationary sources that require a permit under the new source review (NSR) program (Section 110(a)(2)(c) and Section 173 of the Act) or the prevention of significant deterioration program (title I, part C of the Act).


(2) Actions in response to emergencies which are typically commenced on the order of hours or days after the emergency and, if applicable, which meet the requirements of paragraph (e) of this section.


(3) Research, investigations, studies, demonstrations, or training (other than those exempted under paragraph (c)(2) of this section), where no environmental detriment is incurred and/or, the particular action furthers air quality research, as determined by the State agency primarily responsible for the applicable SIP;


(4) Alteration and additions of existing structures as specifically required by new or existing applicable environmental legislation or environmental regulations (e.g., hush houses for aircraft engines and scrubbers for air emissions).


(5) Direct emissions from remedial and removal actions carried out under the Comprehensive Environmental Response, Compensation and Liability Act and associated regulations to the extent such emissions either comply with the substantive requirements of the PSD/NSR permitting program or are exempted from other environmental regulation under the provisions of CERCLA and applicable regulations issued under CERCLA.


(e) Federal actions which are part of a continuing response to an emergency or disaster under paragraph (d)(2) of this section and which are to be taken more than 6 months after the commencement of the response to the emergency or disaster under paragraph (d)(2) of this section are exempt from the requirements of this subpart only if:


(1) The Federal agency taking the actions makes a written determination that, for a specified period not to exceed an additional 6 months, it is impractical to prepare the conformity analyses which would otherwise be required and the actions cannot be delayed due to overriding concerns for public health and welfare, national security interests and foreign policy commitments; or


(2) For actions which are to be taken after those actions covered by paragraph (e)(1) of this section, the Federal agency makes a new determination as provided in paragraph (e)(1) of this section and:


(i) Provides a draft copy of the written determinations required to affected EPA Regional office(s), the affected State(s) and/or air pollution control agencies, and any Federal recognized Indian tribal government in the nonattainment or maintenance area. Those organizations must be allowed 15 days from the beginning of the extension period to comment on the draft determination; and


(ii) Within 30 days after making the determination, publish a notice of the determination by placing a prominent advertisement in a daily newspaper of general circulation in the area affected by the action.


(3) If additional actions are necessary in response to an emergency or disaster under paragraph (d)(2) of this section beyond the specified time period in paragraph (e)(2) of this section, a Federal agency can make a new written determination as described in (e)(2) of this section for as many 6-month periods as needed, but in no case shall this exemption extend beyond three 6-month periods except where an agency:


(i) Provides information to EPA and the State or Tribe stating that the conditions that gave rise to the emergency exemption continue to exist and how such conditions effectively prevent the agency from conducting a conformity evaluation.


(ii) [Reserved]


(f) Notwithstanding other requirements of this subpart, actions specified by individual Federal agencies that have met the criteria set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this section and the procedures set forth in paragraph (h) of this section are “presumed to conform,” except as provided in paragraph (j) of this section. Actions specified by individual Federal agencies as “presumed to conform” may not be used in combination with one another when the total direct and indirect emissions from the combination of actions would equal or exceed any of the rates specified in paragraphs (b)(1) or (2) of this section.


(g) The Federal agency must meet the criteria for establishing activities that are “presumed to conform” by fulfilling the requirements set forth in either paragraphs (g)(1), (g)(2), or (g)(3) of this section:


(1) The Federal agency must clearly demonstrate using methods consistent with this subpart that the total of direct and indirect emissions from the type of activities which would be presumed to conform would not:


(i) Cause or contribute to any new violation of any standard in any area;


(ii) Interfere with provisions in the applicable SIP for maintenance of any standard;


(iii) Increase the frequency or severity of any existing violation of any standard in any area; or


(iv) Delay timely attainment of any standard or any required interim emission reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP for purposes of:


(A) A demonstration of reasonable further progress;


(B) A demonstration of attainment; or


(C) A maintenance plan; or


(2) The Federal agency must provide documentation that the total of direct and indirect emissions from such future actions would be below the emission rates for a conformity determination that are established in paragraph (b) of this section, based, for example, on similar actions taken over recent years.


(3) The Federal agency must clearly demonstrate that the emissions from the type or category of actions and the amount of emissions from the action are included in the applicable SIP and the State, local, or tribal air quality agencies responsible for the SIP(s) or TIP(s) provide written concurrence that the emissions from the actions along with all other expected emissions in the area will not exceed the emission budget in the SIP.


(h) In addition to meeting the criteria for establishing exemptions set forth in paragraphs (g)(1), (g)(2), or (g)(3) of this section, the following procedures must also be complied with to presume that activities will conform:


(1) The Federal agency must identify through publication in the Federal Register its list of proposed activities that are “presumed to conform” and the basis for the presumptions. The notice must clearly identify the type and size of the action that would be “presumed to conform” and provide criteria for determining if the type and size of action qualifies it for the presumption;


(2) The Federal agency must notify the appropriate EPA Regional Office(s), State, local, and tribal air quality agencies and, where applicable, the agency designated under section 174 of the Act and the MPO and provide at least 30 days for the public to comment on the list of proposed activities “presumed to conform.” If the “presumed to conform” action has regional or national application (e.g., the action will cause emission increases in excess of the de minimis levels identified in paragraph (b) of this section in more than one of EPA’s Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can send the draft conformity determination to U.S. EPA, Office of Air Quality Planning and Standards;


(3) The Federal agency must document its response to all the comments received and make the comments, response, and final list of activities available to the public upon request; and


(4) The Federal agency must publish the final list of such activities in the Federal Register.


(i) Emissions from the following actions are “presumed to conform”:


(1) Actions at installations with facility-wide emission budgets meeting the requirements in § 93.161 provided that the State or Tribe has included the emission budget in the EPA-approved SIP and the emissions from the action along with all other emissions from the installation will not exceed the facility-wide emission budget.


(2) Prescribed fires conducted in accordance with a smoke management program (SMP) which meets the requirements of EPA’s Interim Air Quality Policy on Wildland and Prescribed Fires or an equivalent replacement EPA policy.


(3) Emissions for actions that the State or Tribe identifies in the EPA-approved SIP or TIP as “presumed to conform.”


(j) Even though an action would otherwise be “presumed to conform” under paragraph (f) or (i) of this section, an action shall not be “presumed to conform” and the requirements of § 93.150, § 93.151, §§ 93.154 through 93.160 and §§ 93.162 through 93.164 shall apply to the action if EPA or a third party shows that the action would:


(1) Cause or contribute to any new violation of any standard in any area;


(2) Interfere with provisions in the applicable SIP or TIP for maintenance of any standard;


(3) Increase the frequency or severity of any existing violation of any standard in any area; or


(4) Delay timely attainment of any standard or any required interim emissions reductions or other milestones in any area including, where applicable, emission levels specified in the applicable SIP or TIP for purposes of:


(i) A demonstration of reasonable further progress;


(ii) A demonstration of attainment; or


(iii) A maintenance plan.


(k) The provisions of this subpart shall apply in all nonattainment and maintenance areas except conformity requirements for newly designated nonattainment areas are not applicable until 1 year after the effective date of the final nonattainment designation for each NAAQS and pollutant in accordance with section 176(c)(6) of the Act.


[58 FR 63253, Nov. 30, 1993, as amended at 71 FR 40427, July 17, 2006; 75 FR 17274, Apr. 5, 2010; 81 FR 58162, Aug. 24, 2016]


§ 93.154 Federal agency conformity responsibility.

Any department, agency, or instrumentality of the Federal government taking an action subject to this subpart must make its own conformity determination consistent with the requirements of this subpart. In making its conformity determination, a Federal agency must follow the requirements in §§ 93.155 through 93.160 and §§ 93.162 through 93.165 and must consider comments from any interested parties. Where multiple Federal agencies have jurisdiction for various aspects of a project, a Federal agency may choose to adopt the analysis of another Federal agency or develop its own analysis in order to make its conformity determination.


[75 FR 17275, Apr. 5, 2010]


§ 93.155 Reporting requirements.

(a) A Federal agency making a conformity determination under §§ 93.154 through 93.160 and §§ 93.162 through 93.164 must provide to the appropriate EPA Regional Office(s), State and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area, and, where applicable, affected Federal land managers, the agency designated under section 174 of the Act and the MPO, a 30-day notice which describes the proposed action and the Federal agency’s draft conformity determination on the action. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in § 93.153(b) in three or more of EPA’s Regions), the Federal agency, as an alternative to sending it to EPA Regional Offices, can provide the notice to EPA’s Office of Air Quality Planning and Standards.


(b) A Federal agency must notify the appropriate EPA Regional Office(s), State and local air quality agencies, any federally-recognized Indian tribal government in the nonattainment or maintenance area, and, where applicable, affected Federal land managers, the agency designated under section 174 of the Clean Air Act and the MPO, within 30 days after making a final conformity determination under this subpart.


(c) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations, security manuals, or executive orders concerning the use, access, and release of such materials. Subject to applicable procedures to protect restricted information from public disclosure, any information or materials excluded from the draft or final conformity determination or supporting materials may be made available in a restricted information annex to the determination for review by Federal and State representatives who have received appropriate clearances to review the information.


[75 FR 17275, Apr. 5, 2010]


§ 93.156 Public participation.

(a) Upon request by any person regarding a specific Federal action, a Federal agency must make available, subject to the limitation in paragraph (e) of this section, for review its draft conformity determination under § 93.154 with supporting materials which describe the analytical methods and conclusions relied upon in making the applicability analysis and draft conformity determination.


(b) A Federal agency must make public its draft conformity determination under § 93.154 by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action and by providing 30 days for written public comment prior to taking any formal action on the draft determination. This comment period may be concurrent with any other public involvement, such as occurs in the National Environmental Policy Act (NEPA) process. If the action has multi-regional or national impacts (e.g., the action will cause emission increases in excess of the de minimis levels identified in § 93.153(b) in three or more of EPA’s Regions), the Federal agency, as an alternative to publishing separate notices, can publish a notice in the Federal Register.


(c) A Federal agency must document its response to all the comments received on its draft conformity determination under § 93.154 and make the comments and responses available, subject to the limitation in paragraph (e) of this section, upon request by any person regarding a specific Federal action, within 30 days of the final conformity determination.


(d) A Federal agency must make public its final conformity determination under § 93.154 for a Federal action by placing a notice by prominent advertisement in a daily newspaper of general circulation in the area affected by the action within 30 days of the final conformity determination. If the action would have multi-regional or national impacts, the Federal agency, as an alternative, can publish the notice in the Federal Register.


(e) The draft and final conformity determination shall exclude any restricted information or confidential business information. The disclosure of restricted information and confidential business information shall be controlled by the applicable laws, regulations or executive orders concerning the release of such materials.


[75 FR 17275, Apr. 5, 2010]


§ 93.157 Reevaluation of conformity.

(a) Once a conformity determination is completed by a Federal agency, that determination is not required to be re-evaluated if the agency has maintained a continuous program to implement the action; the determination has not lapsed as specified in paragraph (b) of this section; or any modification to the action does not result in an increase in emissions above the levels specified in § 93.153(b). If a conformity determination is not required for the action at the time NEPA analysis is completed, the date of the finding of no significant impact (FONSI) for an Environmental Assessment, a record of decision (ROD) for an Environmental Impact Statement, or a categorical exclusion determination can be used as a substitute date for the conformity determination date.


(b) The conformity status of a Federal action automatically lapses 5 years from the date a final conformity determination is reported under § 93.155, unless the Federal action has been completed or a continuous program to implement the Federal action has commenced.


(c) Ongoing Federal activities at a given site showing continuous progress are not new actions and do not require periodic re-determinations so long as such activities are within the scope of the final conformity determination reported under § 93.155.


(d) If the Federal agency originally determined through the applicability analysis that a conformity determination was not necessary because the emissions for the action were below the limits in § 93.153(b) and changes to the action would result in the total emissions from the action being above the limits in § 93.153(b), then the Federal agency must make a conformity determination.


[75 FR 17276, Apr. 5, 2010]


§ 93.158 Criteria for determining conformity of general Federal actions.

(a) An action required under § 93.153 to have a conformity determination for a specific pollutant, will be determined to conform to the applicable SIP if, for each pollutant that exceeds the rates in § 93.153(b), or otherwise requires a conformity determination due to the total of direct and indirect emissions from the action, the action meets the requirements of paragraph (c) of this section, and meets any of the following requirements:


(1) For any criteria pollutant or precursor, the total of direct and indirect emissions from the action are specifically identified and accounted for in the applicable SIP’s attainment or maintenance demonstration or reasonable further progress milestone or in a facility-wide emission budget included in a SIP in accordance with § 93.161;


(2) For precursors of ozone, nitrogen dioxide, or PM, the total of direct and indirect emissions from the action are fully offset within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violations in the past, in the area with the Federal action) through a revision to the applicable SIP or a similarly enforceable measure that effects emissions reductions so that there is no net increase in emissions of that pollutant;


(3) For any directly-emitted criteria pollutant, the total of direct and indirect emissions from the action meets the requirements:


(i) Specified in paragraph (b) of this section, based on areawide air quality modeling analysis and local air quality modeling analysis; or


(ii) Meet the requirements of paragraph (a)(5) of this section and, for local air quality modeling analysis, the requirement of paragraph (b) of this section;


(4) For CO or directly emitted PM –


(i) Where the State agency primarily responsible for the applicable SIP determines that an areawide air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (b) of this section, based on local air quality modeling analysis; or


(ii) Where the State agency primarily responsible for the applicable SIP determines that an areawide air quality modeling analysis is appropriate and that a local air quality modeling analysis is not needed, the total of direct and indirect emissions from the action meet the requirements specified in paragraph (b) of this section, based on areawide modeling, or meet the requirements of paragraph (a)(5) of this section; or


(5) For ozone or nitrogen dioxide, and for purposes of paragraphs (a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action or the action as a whole meets any of the following requirements:


(i) Where EPA has approved a revision to the applicable implementation plan after the area was designated as nonattainment and the State or Tribe makes a determination as provided in paragraph (a)(5)(i)(A) of this section or where the State or Tribe makes a commitment as provided in paragraph (a)(5)(i)(B) of this section:


(A) The total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the State agency primarily responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, would not exceed the emissions budgets specified in the applicable SIP;


(B) The total of direct and indirect emissions from the action (or portion thereof) is determined by the State agency responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment (or maintenance) area, would exceed an emissions budget specified in the applicable SIP and the State Governor or the Governor’s designee for SIP actions makes a written commitment to EPA which includes the following:


(1) A specific schedule for adoption and submittal of a revision to the SIP which would achieve the needed emission reductions prior to the time emissions from the Federal action would occur;


(2) Identification of specific measures for incorporation into the SIP which would result in a level of emissions which, together with all other emissions in the nonattainment or maintenance area, would not exceed any emissions budget specified in the applicable SIP;


(3) A demonstration that all existing applicable SIP requirements are being implemented in the area for the pollutants affected by the Federal action, and that local authority to implement additional requirements has been fully pursued;


(4) A determination that the responsible Federal agencies have required all reasonable mitigation measures associated with their action; and


(5) Written documentation including all air quality analyses supporting the conformity determination;


(C) Where a Federal agency made a conformity determination based on a State’s or Tribe’s commitment under paragraph (a)(5)(i)(B) of this section and the State has submitted a SIP or TIP to EPA covering the time period during which the emissions will occur or is scheduled to submit such a SIP or TIP within 18 months of the conformity determination, the State commitment is automatically deemed a call for a SIP or TIP revision by EPA under section 110(k)(5) of the Act, effective on the date of the Federal conformity determination and requiring response within 18 months or any shorter time within which the State or Tribe commits to revise the applicable SIP;


(D) Where a Federal agency made a conformity determination based on a State or tribal commitment under paragraph (a)(5)(i)(B) of this section and the State or Tribe has not submitted a SIP covering the time period when the emissions will occur or is not scheduled to submit such a SIP within 18 months of the conformity determination, the State or Tribe must, within 18 months, submit to EPA a revision to the existing SIP committing to include the emissions in the future SIP revision.


(ii) The action (or portion thereof), as determined by the MPO, is specifically included in a current transportation plan and transportation improvement program which have been found to conform to the applicable SIP under 40 CFR part 51, subpart T, or 40 CFR part 93, subpart A;


(iii) The action (or portion thereof) fully offsets its emissions within the same nonattainment or maintenance area (or nearby area of equal or higher classification provided the emissions from that area contribute to the violations, or have contributed to violation in the past, in the area with the Federal action) through a revision to the applicable SIP or an equally enforceable measure that effects emissions reductions equal to or greater than the total of direct and indirect emissions from the action so that there is no net increase in emissions of that pollutant;


(iv) Where EPA has not approved a revision to the relevant SIP since the area was designated or reclassified, the total of direct and indirect emissions from the action for the future years (described in § 93.159(d)) do not increase emissions with respect to the baseline emissions:


(A) The baseline emissions reflect the historical activity levels that occurred in the geographic area affected by the proposed Federal action during:


(1) The most current calendar year with a complete emission inventory available before an area is designated unless EPA sets another year; or


(2) The emission budget in the applicable SIP;


(3) The year of the baseline inventory in the PM-10 applicable SIP;


(B) The baseline emissions are the total of direct and indirect emissions calculated for the future years (described in § 93.159(d)) using the historic activity levels (described in paragraph (a)(5)(iv)(A) of this section) and appropriate emission factors for the future years; or


(v) Where the action involves regional water and/or wastewater projects, such projects are sized to meet only the needs of population projections that are in the applicable SIP.


(b) The areawide and/or local air quality modeling analyses must:


(1) Meet the requirements in § 93.159; and


(2) Show that the action does not:


(i) Cause or contribute to any new violation of any standard in any area; or


(ii) Increase the frequency or severity of any existing violation of any standard in any area.


(c) Notwithstanding any other requirements of this section, an action subject to this subpart may not be determined to conform to the applicable SIP unless the total of direct and indirect emissions from the action is in compliance or consistent with all relevant requirements and milestones contained in the applicable SIP, such as elements identified as part of the reasonable further progress schedules, assumptions specified in the attainment or maintenance demonstration, prohibitions, numerical emission limits, and work practice requirements.


(d) Any analyses required under this section must be completed, and any mitigation requirements necessary for a finding of conformity must be identified before the determination of conformity is made.


[58 FR 63253, Nov. 30, 1993, as amended at 75 FR 17276, Apr. 5, 2010]


§ 93.159 Procedures for conformity determinations of general Federal actions.

(a) The analyses required under this subpart must be based on the latest planning assumptions.


(1) All planning assumptions must be derived from the estimates of population, employment, travel, and congestion most recently approved by the MPO, or other agency authorized to make such estimates, where available.


(2) Any revisions to these estimates used as part of the conformity determination, including projected shifts in geographic location or level of population, employment, travel, and congestion, must be approved by the MPO or other agency authorized to make such estimates for the urban area.


(b) The analyses required under this subpart must be based on the latest and most accurate emission estimation techniques available as described below, unless such techniques are inappropriate. If such techniques are inappropriate, the Federal agency may obtain written approval from the appropriate EPA Regional Administrator for a modification or substitution, of another technique on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program.


(1) For motor vehicle emissions, the most current version of the motor vehicle emissions model specified by EPA and available for use in the preparation or revision of SIPs in that State must be used for the conformity analysis as specified in paragraphs (b)(1)(i) and (ii) of this section:


(i) The EPA must publish in the Federal Register a notice of availability of any new motor vehicle emissions model; and


(ii) A grace period of 3 months shall apply during which the motor vehicle emissions model previously specified by EPA as the most current version may be used unless EPA announces a longer grace period in the Federal Register. Conformity analyses for which the analysis was begun during the grace period or no more than 3 months before the Federal Register notice of availability of the latest emission model may continue to use the previous version of the model specified by EPA.


(2) For non-motor vehicle sources, including stationary and area source emissions, the latest emission factors specified by EPA in the “Compilation of Air Pollutant Emission Factors” (AP-42, http://www.epa.gov/ttn/chiefs/efpac) must be used for the conformity analysis unless more accurate emission data are available, such as actual stack test data from the stationary sources which are part of the conformity analysis.


(c) The air quality modeling analyses required under this subpart must be based on the applicable air quality models, data bases, and other requirements specified in the most recent version of the “Guideline on Air Quality Models.” (Appendix W to 40 CFR part 51).


(1) The guideline techniques are inappropriate, in which case the model may be modified or another model substituted on a case-by-case basis or, where appropriate, on a generic basis for a specific Federal agency program; and


(2) Written approval of the EPA Regional Administrator is obtained for any modification or substitution.


(d) The analyses required under this subpart must be based on the total of direct and indirect emissions from the action and must reflect emission scenarios that are expected to occur under each of the following cases:


(1) The attainment year specified in the SIP, or if the SIP does not specify an attainment year, the latest attainment year possible under the Act; or


(2) The last year for which emissions are projected in the maintenance plan;


(3) The year during which the total of direct and indirect emissions from the action is expected to be the greatest on an annual basis; and


(4) Any year for which the applicable SIP specifies an emissions budget.


[58 FR 63253, Nov. 30, 1993, as amended at 75 FR 17277, Apr. 5, 2010]


§ 93.160 Mitigation of air quality impacts.

(a) Any measures that are intended to mitigate air quality impacts must be identified and the process for implementation and enforcement of such measures must be described, including an implementation schedule containing explicit timelines for implementation.


(b) Prior to determining that a Federal action is in conformity, the Federal agency making the conformity determination must obtain written commitments from the appropriate persons or agencies to implement any mitigation measures which are identified as conditions for making conformity determinations.


(c) Persons or agencies voluntarily committing to mitigation measures to facilitate positive conformity determinations must comply with the obligations of such commitments.


(d) In instances where the Federal agency is licensing, permitting or otherwise approving the action of another governmental or private entity, approval by the Federal agency must be conditioned on the other entity meeting the mitigation measures set forth in the conformity determination.


(e) When necessary because of changed circumstances, mitigation measures may be modified so long as the new mitigation measures continue to support the conformity determination. Any proposed change in the mitigation measures is subject to the reporting requirements of § 93.156 and the public participation requirements of § 93.157.


(f) Written commitments to mitigation measures must be obtained prior to a positive conformity determination and such commitments must be fulfilled.


(g) After a State or Tribe revises its SIP or TIP and EPA approves that SIP revision, any agreements, including mitigation measures, necessary for a conformity determination will be both State or tribal and federally enforceable. Enforceability through the applicable SIP or TIP will apply to all persons who agree to mitigate direct and indirect emissions associated with a Federal action for a conformity determination.


[58 FR 63253, Nov. 30, 1993, as amended at 75 FR 17277, Apr. 5, 2010]


§ 93.161 Conformity evaluation for Federal installations with facility-wide emission budgets.

(a) The State, local or tribal agency responsible for implementing and enforcing the SIP or TIP can in cooperation with Federal agencies or third parties authorized by the agency that operate installations subject to Federal oversight develop and adopt a facility-wide emission budget to be used for demonstrating conformity under § 93.158(a)(1). The facility-wide budget must meet the following criteria:


(1) Be for a set time period;


(2) Cover the pollutants or precursors of the pollutants for which the area is designated nonattainment or maintenance;


(3) Include specific quantities allowed to be emitted on an annual or seasonal basis;


(4) The emissions from the facility along with all other emissions in the area will not exceed the emission budget for the area;


(5) Include specific measures to ensure compliance with the budget, such as periodic reporting requirements or compliance demonstration, when the Federal agency is taking an action that would otherwise require a conformity determination;


(6) Be submitted to EPA as a SIP revision;


(7) The SIP revision must be approved by EPA.


(b) The facility-wide budget developed and adopted in accordance with paragraph (a) of this section can be revised by following the requirements in paragraph (a) of this section.


(c) Total direct and indirect emissions from Federal actions in conjunction with all other emissions subject to General Conformity from the facility that do not exceed the facility budget adopted pursuant to paragraph (a) of this section are “presumed to conform” to the SIP and do not require a conformity analysis.


(d) If the total direct and indirect emissions from the Federal actions in conjunction with the other emissions subject to General Conformity from the facility exceed the budget adopted pursuant to paragraph (a) of this section, the action must be evaluated for conformity. A Federal agency can use the compliance with the facility-wide emissions budget as part of the demonstration of conformity, i.e., the agency would have to mitigate or offset the emissions that exceed the emission budget.


(e) If the SIP for the area includes a category for construction emissions, the negotiated budget can exempt construction emissions from further conformity analysis.


[75 FR 17277, Apr. 5, 2010]


§ 93.162 Emissions beyond the time period covered by the SIP.

If a Federal action would result in total direct and indirect emissions above the applicable thresholds which would be emitted beyond the time period covered by the SIP, the Federal agency can:


(a) Demonstrate conformity with the last emission budget in the SIP; or


(b) Request the State or Tribe to adopt an emissions budget for the action for inclusion in the SIP. The State or Tribe must submit a SIP or TIP revision to EPA within 18 months either including the emissions in the existing SIP or establishing an enforceable commitment to include the emissions in future SIP revisions based on the latest planning assumptions at the time of the SIP revision. No such commitment by a State or Tribe shall restrict a State’s or Tribe’s ability to require RACT, RACM or any other control measures within the State’s or Tribe’s authority to ensure timely attainment of the NAAQS.


[75 FR 17278, Apr. 5, 2010]


§ 93.163 Timing of offsets and mitigation measures.

(a) The emissions reductions from an offset or mitigation measure used to demonstrate conformity must occur during the same calendar year as the emission increases from the action except, as provided in paragraph (b) of this section.


(b) The State or Tribe may approve emissions reductions in other years provided:


(1) The reductions are greater than the emission increases by the following ratios:


(i) Extreme nonattainment areas1.5:1
(ii) Severe nonattainment areas1.3:1
(iii) Serious nonattainment areas1.2:1
(iv) Moderate nonattainment areas1.15:1
(v) All other areas1.1:1

(2) The time period for completing the emissions reductions must not exceed twice the period of the emissions.


(3) The offset or mitigation measure with emissions reductions in another year will not:


(i) Cause or contribute to a new violation of any air quality standard,


(ii) Increase the frequency or severity of any existing violation of any air quality standard; or


(iii) Delay the timely attainment of any standard or any interim emissions reductions or other milestones in any area.


(c) The approval by the State or Tribe of an offset or mitigation measure with emissions reductions in another year does not relieve the State or Tribe of any obligation to meet any SIP or Clean Air Act milestone or deadline. The approval of an alternate schedule for mitigation measures is at the discretion of the State or Tribe, and they are not required to approve an alternate schedule.


[75 FR 17278, Apr. 5, 2010]


§ 93.164 Inter-precursor mitigation measures and offsets.

Federal agencies must reduce the same type of pollutant as being increased by the Federal action except the State or Tribe may approve offsets or mitigation measures of different precursors of the same criteria pollutant, if such trades are allowed by a State or Tribe in a SIP or TIP approved NSR regulation, is technically justified, and has a demonstrated environmental benefit.


[75 FR 17278, Apr. 5, 2010]


§ 93.165 Early emission reduction credit programs at Federal facilities and installation subject to Federal oversight.

(a) Federal facilities and installations subject to Federal oversight can, with the approval of the State or tribal agency responsible for the SIP or TIP in that area, create an early emissions reductions credit program. The Federal agency can create the emission reduction credits in accordance with the requirements in paragraph (b) of this section and can use them in accordance with paragraph (c) of this section.


(b) Creation of emission reduction credits.


(1) Emissions reductions must be quantifiable through the use of standard emission factors or measurement techniques. If non-standard factors or techniques to quantify the emissions reductions are used, the Federal agency must receive approval from the State or tribal agency responsible for the implementation of the SIP or TIP and from EPA’s Regional Office. The emission reduction credits do not have to be quantified before the reduction strategy is implemented, but must be quantified before the credits are used in the General Conformity evaluation.


(2) The emission reduction methods must be consistent with the applicable SIP or TIP attainment and reasonable further progress demonstrations.


(3) The emissions reductions cannot be required by or credited to other applicable SIP or TIP provisions.


(4) Both the State or Tribe and Federal air quality agencies must be able to take legal action to ensure continued implementation of the emission reduction strategy. In addition, private citizens must also be able to initiate action to ensure compliance with the control requirement.


(5) The emissions reductions must be permanent or the timeframe for the reductions must be specified.


(6) The Federal agency must document the emissions reductions and provide a copy of the document to the State or tribal air quality agency and the EPA regional office for review. The documentation must include a detailed description of the emission reduction strategy and a discussion of how it meets the requirements of paragraphs (b)(1) through (5) of this section.


(c) Use of emission reduction credits. The emission reduction credits created in accordance with paragraph (b) of this section can be used, subject to the following limitations, to reduce the emissions increase from a Federal action at the facility for the conformity evaluation.


(1) If the technique used to create the emission reduction is implemented at the same facility as the Federal action and could have occurred in conjunction with the Federal action, then the credits can be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in § 93.153 and as offsets or mitigation measures required by § 93.158.


(2) If the technique used to create the emission reduction is not implemented at the same facility as the Federal action or could not have occurred in conjunction with the Federal action, then the credits cannot be used to reduce the total direct and indirect emissions used to determine the applicability of the regulation as required in § 93.153, but can be used to offset or mitigate the emissions as required by § 93.158.


(3) Emissions reductions credits must be used in the same year in which they are generated.


(4) Once the emission reduction credits are used, they cannot be used as credits for another conformity evaluation. However, unused credits from a strategy used for one conformity evaluation can be used for another conformity evaluation as long as the reduction credits are not double counted.


(5) Federal agencies must notify the State or tribal air quality agency responsible for the implementation of the SIP or TIP and EPA Regional Office when the emission reduction credits are being used.


[75 FR 17278, Apr. 5, 2010]


PART 94 – CONTROL OF EMISSIONS FROM MARINE COMPRESSION-IGNITION ENGINES


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


Source:86 FR 34373, June 29, 2021, unless otherwise noted.

§ 94.1 Applicability.

The Environmental Protection Agency adopted emission standards for model year 2004 and later marine compression-ignition engines under this part. EPA has migrated regulatory requirements for these engines to 40 CFR part 1042, with additional testing and compliance provisions in 40 CFR parts 1065 and 1068. The Tier 1 and Tier 2 standards originally adopted in this part are identified in 40 CFR part 1042, appendix I. See 40 CFR 1042.1 for information regarding the timing of the transition to 40 CFR part 1042, and for information regarding regulations that continue to apply for engines that manufacturers originally certified or otherwise produced under this part.


§ § 94.2 through 94.3 [Reserved]

PART 95 – MANDATORY PATENT LICENSES


Authority:42 U.S.C. 7609; Sec. 104, Pub. L. 103-182, 107 Stat. 2057, 2064.


Source:59 FR 67638, Dec. 30, 1994, unless otherwise noted.

§ 95.1 Definitions.

(a) As used in this part, all terms not defined in this section shall have the meaning given them by the Act.


(b) Act means the Clean Air Act, as amended (42 U.S.C. §§ 7401-7671).


(c) Agency means the Environmental Protection Agency.


(d) Administrator means the Administrator of the Environmental Protection Agency.


§ 95.2 Petition for mandatory license.

(a) Any party required to comply with sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 7412 or 7521) may petition to the Administrator for a mandatory patent license pursuant to section 308 of the Act (42 U.S.C. 7608), under a patent that the petitioner maintains is necessary to enable the petitioner to comply with Sections 111, 112 or 202 of the Act.


(b)(1) Each petition shall be signed by the petitioner and shall state the petitioner’s name and address. If the petitioner is a corporation, the petition shall be signed by an authorized officer of the corporation, and the petition shall indicate the state of incorporation. Where the petitioner elects to be represented by counsel, a signed notice to that effect shall be included with the petition at the time of filing.


(2) Each petition shall include a copy of the patent under which a mandatory patent license is sought. The petition shall identify all current owners of the patent and shall include a copy of all assignment documents relevant to the patent that are available from the United States Patent and Trademark Office.


(3) Each petition must identify any person whose interest the petitioner believes may be affected by the grant of the license to which the petition is directed.


(4) Each petition must contain a concise statement of all of the essential facts upon which it is based. No particular form of statement is required. Each petition shall be verified by the petitioner or by the person having the best knowledge of such facts. In the case of facts stated on information and belief, the source of such information and grounds of belief shall be given. The statement of facts shall include the following:


(i) An identification of the provisions of the Act and/or regulations thereunder that the petitioner maintains petitioner will be able to comply with if the petitioner is granted the patent license that is the subject of the petition;


(ii) An identification of the nature and purpose of the petitioner’s intended use of the patent license;


(iii) An explanation of the relationship between the patented technology and the activities to which petitioner proposes to apply the patented technology, including an estimate of the effect on such activities stemming from the grant or denial of the patent license;


(iv) A summary of facts demonstrating that the patent under which a mandatory patent license is sought is being used or is intended for public or commercial use;


(v) An explanation of why a mandatory patent license is necessary for the petitioner to comply with the requirements of sections 111, 112 or 202 of the Act, and why the patented technology is not otherwise available;


(vi) An explanation of why there are no other reasonable alternatives for accomplishing compliance with sections 111, 112 or 202 of the Act;


(vii) An explanation of why the unavailability of a mandatory patent license may result in a substantial lessening of competition or a tendency to create a monopoly in any line of commerce in any section of the United States;


(viii) A summary of efforts made by the petitioner to obtain a patent license from the owner of the patent, including the terms and conditions of any patent license proposed by petitioner to the patent owner; and


(ix) The terms, if any, on which the owner of the patent has proposed to grant the petitioner a patent license.


(5) Each petition shall include a proposed patent license that states all of the terms and conditions that the petitioner proposes for the patent license.


(6) Petitions shall be addressed to the Assistant Administrator for Air and Radiation, Mail Code 6101, U.S. Environmental Protection Agency, Washington, DC 20460.


(c) Petitions that do not include all of the information required in paragraph (b) of this section shall be returned to the petitioner. The petitioner may supplement the petition and resubmit the petition.


(d) If the Administrator, or the Administrator’s designee, finds that the criteria in § 95.3 are not met, or otherwise decides to deny the petition, a denial of the petition shall be sent to the petitioner, along with an explanation of the reasons for the denial.


(e) If the Administrator, or the Administrator’s designee, finds that the criteria in § 95.3 are met and decides to apply to the Attorney General for a patent license under section 308 of the Act, notice of such application shall be given to the petitioner, along with a copy of the application sent to the Attorney General.


§ 95.3 Findings prior to application to Attorney General.

The Administrator, or the Administrator’s designee, may apply to the Attorney General for a mandatory patent license pursuant to section 308 of the Act (42 U.S.C. 7608) either in response to a petition under § 95.2 or on the Administrator’s or designee’s own initiative, only after expressly finding that each one of the following mandatory criteria is met:


(a) The application is for a patent license covering no more than one patent;


(b) The party to whom the proposed patent license is to be granted has presented the Administrator or designee with evidence that such party has made reasonable efforts to obtain a patent license from the patent owner with terms similar to the license terms to be proposed in the application to the Attorney General;


(c) The patent under which a patent license is sought in the application to the Attorney General is being used or is intended for public or commercial use;


(d) The mandatory patent license is necessary for a party to comply with the requirements of sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 7412 or 7521);


(e) The patented technology is not otherwise reasonably available, and there are no other reasonable alternatives for accomplishing compliance with sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 7412 or 7521); and


(f) The unavailability of a mandatory patent license may result in a substantial lessening of competition or a tendency to create a monopoly in any line of commerce in any section of the United States.


§ 95.4 Limitations on mandatory licenses.

(a) If the Administrator, or the Administrator’s designee, decides to apply to the Attorney General for a mandatory patent license in accordance with § 95.3, the application shall include a proposed patent license with the following limitations:


(1) The scope and duration of the patent license shall be limited to that necessary to permit the proposed licensee to comply with the requirements the Act;


(2) The patent license shall be nonexclusive;


(3) The patent license shall be non-assignable, except with that part of the enterprise or goodwill that enjoys the license;


(4) The patent license shall be for use of the licensed technology in the United States only;


(5) The patent license shall extend only to those uses necessary to enable the licensee to comply with sections 111, 112 or 202 of the Act (42 U.S.C. 7411, 7412 or 7521);


(6) The patent license shall provide for termination, subject to adequate protections of the legitimate interests of the licensed party, when the circumstances that made the compulsory patent license necessary cease to exist and are unlikely to recur; and


(7) The patent license shall provide for adequate remuneration that takes into account the economic value of the license.


(b) The Administrator, or the Administrator’s designee, may decide as appropriate to include additional conditions, terms or limitations on the scope of the patent license for which application is made to the Attorney General.


This site is a reading aid with no association with the US government. The source of this data is FDsys and the OFR/GPO but do not attempt to form legal conclusions based on this site, E-CFR search results, extractions, aids, metadata associations, or similar trunctations of the official record.