[Code of Federal Regulations]
[Title 40, Volume 17]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR93.105]
[Page 550-552]
TITLE 40--PROTECTION OF ENVIRONMENT
CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
PART 93--DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS--Table of Contents
Subpart A--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Laws
Sec. 93.105 Consultation.
(a) General. The implementation plan revision required under
Sec. 51.390 of this chapter shall include procedures for interagency
consultation (Federal, State, and local), resolution of conflicts, and
public consultation as described in paragraphs (a) through (e) of this
section. Public consultation procedures will be developed in accordance
with the requirements for public involvement in 23 CFR part 450.
(1) The implementation plan revision shall include procedures to be
undertaken by MPOs, State departments of transportation, and DOT with
State and local air quality agencies and EPA before making conformity
determinations, and by State and local air agencies and EPA with MPOs,
State departments of transportation, and DOT in developing applicable
implementation plans.
(2) Before EPA approves the conformity implementation plan revision
required by Sec. 51.390 of this chapter, MPOs and State departments of
transportation must provide reasonable opportunity for consultation with
State air agencies, local air quality and transportation agencies, DOT,
and EPA, including consultation on the issues described in paragraph
(c)(1) of this section, before making conformity determinations.
(b) Interagency consultation procedures: General factors. (1) States
shall provide well-defined consultation procedures in the implementation
plan whereby representatives of the MPOs, State and local air quality
planning agencies, State and local transportation agencies, and other
organizations with responsibilities for developing, submitting, or
implementing provisions of an implementation plan required by the CAA
must consult with each other and with local or regional offices of EPA,
FHWA, and FTA on the development of the implementation plan, the
transportation plan, the TIP, and associated conformity determinations.
(2) Interagency consultation procedures shall include at a minimum
the following general factors and the specific processes in paragraph
(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
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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 Secs. 93.126 and 93.127) should be
treated as non-exempt in cases where potential adverse emissions impacts
may exist for any reason;
(iv) Making a determination, as required by Sec. 93.113(c)(1),
whether past obstacles to implementation of TCMs which are behind the
schedule established in the applicable implementation plan have been
identified and are being overcome, and whether State and local agencies
with influence over approvals or funding for TCMs are giving maximum
priority to approval or funding for TCMs. This process shall also
consider whether delays in TCM implementation necessitate revisions to
the applicable implementation plan to remove TCMs or substitute TCMs or
other emission reduction measures;
(v) Identifying, as required by Sec. 93.123(b), projects located at
sites in PM10 nonattainment areas which have vehicle and
roadway emission and dispersion characteristics which are essentially
identical to those at sites which have violations verified by
monitoring, and therefore require quantitative PM10 hot-spot
analysis;
(vi) Notification of transportation plan or TIP revisions or
amendments which merely add or delete exempt projects listed in
Sec. 93.126 or Sec. 93.127; and
(vii) Choosing conformity tests and methodologies for isolated rural
nonattainment and maintenance areas, as required by
Sec. 93.109(g)(2)(iii).
(2) A process involving the MPO and State and local air quality
planning agencies and transportation agencies for the following:
(i) Evaluating events which will trigger new conformity
determinations in addition to those triggering events established in
Sec. 93.104; and
(ii) Consulting on emissions analysis for transportation activities
which cross the borders of MPOs or nonattainment areas or air basins.
(3) Where the metropolitan planning area does not include the entire
nonattainment or maintenance area, a process involving the MPO and the
State department of transportation for cooperative planning and analysis
for purposes of determining conformity of all projects outside the
metropolitan area and within the nonattainment or maintenance area.
(4) A process to ensure that plans for construction of regionally
significant projects which are not FHWA/FTA projects (including projects
for which alternative locations, design concept and scope, or the no-
build option are still being considered), including those by recipients
of funds designated under title 23 U.S.C. or the Federal Transit Laws,
are disclosed to the MPO on a regular basis, and to ensure that any
changes to those plans are immediately disclosed.
(5) A process involving the MPO and other recipients of funds
designated under title 23 U.S.C. or the Federal Transit Laws for
assuming the location and design concept and scope of projects which are
disclosed to the MPO as required by paragraph (c)(4) of this section but
whose sponsors have not yet decided these features, in sufficient detail
to perform the regional emissions analysis according to the requirements
of Sec. 93.122.
(6) A process for consulting on the design, schedule, and funding of
research and data collection efforts and regional transportation model
development by the MPO (e.g., household/ travel transportation surveys).
(7) A process for providing final documents (including applicable
implementation plans and implementation plan revisions) and supporting
information to each agency after approval or adoption. This process is
applicable to all agencies described in paragraph (a)(1) of this
section, including Federal agencies.
(d) Resolving conflicts. Conflicts among State agencies or between
State agencies and an MPO shall be escalated to the Governor if they
cannot be resolved by the heads of the involved agencies. The State air
agency has 14
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calendar days to appeal to the Governor after the State DOT or MPO has
notified the State air agency head of the resolution of his or her
comments. The implementation plan revision required by Sec. 51.390 of
this chapter shall define the procedures for starting the 14-day clock.
If the State air agency appeals to the Governor, the final conformity
determination must have the concurrence of the Governor. If the State
air agency does not appeal to the Governor within 14 days, the MPO or
State department of transportation may proceed with the final conformity
determination. The Governor may delegate his or her role in this
process, but not to the head or staff of the State or local air agency,
State department of transportation, State transportation commission or
board, or an MPO.
(e) Public consultation procedures. Affected agencies making
conformity determinations on transportation plans, programs, and
projects shall establish a proactive public involvement process which
provides opportunity for public review and comment by, at a minimum,
providing reasonable public access to technical and policy information
considered by the agency at the beginning of the public comment period
and prior to taking formal action on a conformity determination for all
transportation plans and TIPs, consistent with these requirements and
those of 23 CFR 450.316(b). Any charges imposed for public inspection
and copying should be consistent with the fee schedule contained in 49
CFR 7.95. In addition, these agencies must specifically address in
writing all public comments that known plans for a regionally
significant project which is not receiving FHWA or FTA funding or
approval have not been properly reflected in the emissions analysis
supporting a proposed conformity finding for a transportation plan or
TIP. These agencies shall also provide opportunity for public
involvement in conformity determinations for projects where otherwise
required by law.