Regulatory Text: 
NEW MEXICO ADMINISTRATIVE CODE
TITLE 20  ENVIRONMENTAL PROTECTION  
CHAPTER 2  AIR QUALITY (STATEWIDE)

PART 99  CONFORMITY TO THE STATE IMPLEMENTATION PLAN OF TRANSPORTATION PLANS, PROGRAMS, AND PROJECTS  (20 NMAC 2.99)

(Approved by EPA 03/20/2000 (65 FR 14873) effective 05/19/2000.)

TABLE OF CONTENTS

(NOTE: numbers in parenthesis are page numbers of sections in copy actually approved by EPA.  The page numbers are included here primarily to indicate the relative length of each section.  The page numbers will not necessarily correspond to page numbers when this document is printed from this web site. Sections 109,C.1; 114; 128.C to 128.F; 137.E; 139.A.2; 140.A.1; and 147.B are excluded from the SIP; refer to the relevant sections for further information.)

100.  Issuing Agency (1)
101.  Scope (1)
102.  Statutory Authority (2)
103.  Duration (2)
104.  Effective Date (2)
105.  Objective (2)
106.  [Reserved] (3)
107.  Definitions (3)
108.  Documents (9)
109.  Applicability (9)
110.  Priority (10)
111.  Frequency of Conformity Determinations (10)
112.  Frequency of Conformity Determinations -Transportation Plans (10)
113.  Frequency of Conformity Determinations -Transportation Improvement Programs (11)
114.  Frequency of Conformity Determinations - Projects (11)
115.  Frequency of Conformity Determinations - Triggers for Transportation Plan and TIP Conformity Determinations (11)
116.  Consultation (12)
117.  Agency Roles in Consultation (14)
118.  Agency Responsibilities in Consultation (15)
119.  General Consultation Procedures (17)
120.  Consultation Procedures for Specific Major Activities (19)
121.  Consultation Procedures for Specific Routine Activities (21)
122.  Notification Procedures for Routine Activities (23)
123.  Conflict Resolution and Appeals to the Governor (23)
124.  Public Consultation Procedures (24)
125.  Content of Transportation Plans (25)
126.  Relationship of Transportation Plan and TIP Conformity to the NEPA Process (26)
127.  Fiscal Constraints for Transportation Plans and TIPs (26)
128.  Criteria and Procedures for Determining Conformity of Transportation Plans, Programs, and Projects - General (27)
129.  Criteria and Procedures - Latest Planning Assumptions (33)
130.  Criteria and Procedures - Latest Emissions Model (34)
131.  Criteria and Procedures - Consultation (35)
132.  Criteria and Procedures - Timely Implementation of TCMs (35)
133.  Criteria and Procedures - Currently Conforming Transportation Plan and TIP (36)
134.  Criteria and Procedures - Projects from a Plan and TIP (36)
135.  Criteria and Procedures - Localized CO and PM₁₀ Violations (Hot Spots) (37)
136.  Criteria and Procedures - Compliance with PM₁₀ Control Measures (37)
137.  Criteria and Procedures - Motor Vehicle Emissions Budget (38)
138.  Criteria and Procedures - Emission Reductions in Areas without Motor) Vehicle Emissions Budgets (41)
139.  Consequences of Control Strategy Implementation Plan Failures (44)
140.  Requirements for Adoption or Approval of Projects by Other Recipients of Funds Designated Under 23 U.S.C. or the Federal Transit Laws (45)
141.  Procedures for Determining Regional Transportation-Related Pollutant Emissions - General Requirements (46)
142.  Procedures for Determining Regional Transportation-Related Pollutant Emissions - Analysis in Serious, Severe, and Extreme Ozone Nonattainment Areas and Serious Carbon Monoxide Areas (47)
143.  Procedures for Determining Regional Transportation-Related Pollutant Emissions - Areas Which are not Serious, Severe or Extreme Ozone Nonattainment Areas or Serious Carbon Monoxide Areas (49)
144.  Procedures for Determining Regional Transportation-Related Pollutant Emissions - PM₁₀ from Construction-Related Fugitive Dust (49)
145.  Procedures for Determining Regional Transportation-Related Pollutant Emissions - Reliance on Previous Regional Emissions Analysis (49)
146.  Procedures for Determining Localized CO and PM₁₀ Concentrations (Hot Spot Analysis) (50)
147.  Using the Motor Vehicle Emissions Budget in the SIP (or Implementation Plan Submission) (52)
148.  Enforceability of Design Concept and Scope and Project-Level Mitigation and Control Measures (54)
149.  Exemptions (54)
150.  Traffic Signal Synchronization Projects (57)
151.  Savings Provision (58)

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1-99.  Reserved.  Sections 1-99 are reserved.  All material previously included in Sections 1-66, originally filed 11-14-94, has been renumbered by an amendment dated 11-23-98.  The following Sections and subsections from the 11-14-94 filing were repealed: 7.1, 7.9, 7.10, 7.13, 7.21, 7.23, 7.25, 7.35, 7.36, 7.40, 7.43, 7.47, 7.48, 11.4, 33.2, 35.2, 35.3, 36 (36.1, 36.2, 36.3), 37 (37.1, 37.2), 38 (38.1, 38.2, 38.3), 39 (39.1, 39.2, 39.3, 39.4, 39.5, 39.6), 40 (40.1, 40.2, 40.3, 40.4, 40.5, 40.6), 41, 42 (42.1, 42.2, 42.3), 43 (43.1, 43.2, 43.3), 44, 45 (45.1, 45.2, 45.3), 46 (46.1, 46.2), 47 (47.1, 47.2), 48 (48.1, 48.2, 48.3), 49 (49.1, 49.2), 50 (50.1, 50.2), 51 (51.1, 51.2, 51.3), 52, 53, 55.4, 56.3, 56.5, 57.1, 57.2, 58 (58.1, 58.2, 58.3, 58.4), 60.3, 64 (64.1, 64.2, 64.3).  [12-14-94; A, 11-23-98]

100.  ISSUING AGENCY:  New Mexico Environmental Improvement Board. [Rn, 20 NMAC 2.99.1, 11-23-98]

101.  SCOPE:  Agencies affected by this Part are: federal transportation agencies (the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA) of the United States Department of Transportation (US DOT)), and state and local agencies responsible for transportation planning and air quality management that are within the geographic jurisdiction of the Environmental Improvement Board (see also Section 105 - Objective).  [Rn, 20 NMAC 2.99.2, 11-23-98; A, 11-23-98]

      A.  The provisions of this Part shall apply in all non-attainment and maintenance areas for transportation -related criteria pollutants for which the area is designated non-attainment or has a maintenance plan.  [Rn, 20 NMAC 2.99.2.1, 11-23-98]

      B.  The provisions of this Part apply with respect to emissions of the following criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, and particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM₁₀).  [Rn, 20 NMAC 2.99.2.2, 11-23-98]

      C.  The provisions of this Part apply with respect to emissions of the following precursor pollutants in nonattainment or maintenance areas:

          1.  Volatile organic compounds and nitrogen oxides in ozone areas; 
          
          2.  Nitrogen oxides in nitrogen dioxide areas; and
          
          3.  Volatile organic compounds, nitrogen oxides, and PM₁₀ in PM₁₀ areas if: 
              
              a.  The EPA Region 6 Administrator or the Department has made a finding (including a finding as part of a SIP or a submitted implementation plan revision) that transportation-related precursor emissions within the area are a significant contributor to the PM₁₀  problem and has so notified the MPO (or the NMSHTD in the absence of an MPO) and US DOT; or

              b.   The applicable SIP (or implementation plan submission) establishes a budget for such emissions as part of the reasonable further progress, attainment or maintenance strategy.  [Rn, 20 NMAC 2.99.2.3, 11-23-98; A, 11-23-98]

      D.  The provisions of this Part apply to maintenance areas for 20 years from the date US EPA approves the Department's request under Section 107(d) of the CAA for redesignation to attainment, unless the applicable implementation plan specifies that the provisions of this Part shall apply for more than 20 years.  [11-23-98]

102.  STATUTORY AUTHORITY:  Environmental Improvement Act, NMSA 1978, Section 74-1-8(A)(4) and (7), and Air Quality Control Act, NMSA 1978, Sections 74-2-1, et seq., including specifically, Section 74-2-5(A), (B) and (C).  Section 74-2-5.B. provides that the Environmental Improvement Board shall adopt regulations "to attain and maintain national ambient air quality standards and prevent or abate air pollution...."  [Rn, 20 NMAC 2.99.3, 11-23-98; A, 11-23-98]

103.  DURATION:  Permanent. [Rn, 20 NMAC 2.99.4, 11-23-98]

104.  EFFECTIVE DATE:  November 23, 1998, except where a later date is cited at the end of a section or paragraph.  [Rn, 20 NMAC 2.99.5, 11-23-98; A, 11-23-98]

105.  OBJECTIVE:  The purpose of this Part is to implement §176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), the related requirements of 23 U.S.C. 109(j), and regulations under 40 CFR part 51 subpart T and Part 93 subpart A, with respect to the conformity of transportation plans, programs, and projects which are developed, funded, or approved by the United States Department of Transportation (US DOT), the NMSHTD, 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) to the New Mexico State Implementation Plan (SIP), as developed pursuant to §110 and Part D of the CAA.  This Part sets forth policy, criteria, and procedures for demonstrating and assuring conformity of such activities to the SIP.  [Rn, 20 NMAC 2.99.6, 11-23-98; A, 11-23-98]

106.  [Reserved]

107.  DEFINITIONS:  Terms used but not defined in this Part shall have the meaning given them by the CAA titles 23 and 49 U.S.C., US EPA regulations, US DOT regulations, and 20 NMAC 2.2 - Definitions, in that order of priority. [Rn, 20 NMAC 2.99.7, 11-23-98; A, 11-23-98]

      A.  "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 (of the CAA), 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.  [11-23-98]

      B.  "CAA" means the Clean Air Act, as amended, 42 U.S.C. 7401, et seq. [Rn, 20 NMAC 2.99.7.2, 11-23-98]
     
      C.  "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.  [Rn, 20 NMAC 2.99.7.3, 11-23-98]

      D.  "CFR" means the Code of Federal Regulations.  [Rn, 20 NMAC 2.99.7.4, 11-23-98]

      E.  “Clean Data” means air quality monitoring data determined by US EPA to meet the requirements of 40 CFR Part 58 that indicate attainment of the national ambient air quality standard.  [11-23-98]

      F.  "Conformity analyses" means regional or localized "hot-spot" computer modeling assessment or any other analyses which serve as the basis for the conformity determination.  [Rn, 20 NMAC 2.99.7.5, 11-23-98]

      G.  "Conformity determination" means the demonstration of consistency with motor vehicle emissions budgets for each pollutant and precursor identified in the applicable SIP.  The conformity determination is the affirmative written documentation declaring conformity with the applicable SIP which is submitted to FHWA and FTA for approval with EPA consultation.  An affirmative conformity determination means conformity to the plan’s purpose of eliminating or reducing the severity and number of violations of the NAAQS and achieving expeditious attainment of such standards; and that such activities will not:

          1.  Cause or contribute to any new violations of any standard in any area;

          2.  Increase the frequency or severity of any existing violation of any standard in any area; or

          3.  Delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.  [Rn, 20 NMAC 2.99.7.6, 11-23-98; A, 11-23-98]

      H.  "Consultation" means that one party confers with another identified party, provides or makes available all relevant information to that party, and, prior to taking any action, considers the views of that party and (except with respect to those actions for which only notification is required) responds to written comments in a timely, substantive written manner prior to any final decision on such action. Such views and written response shall be made part of the record of any decision or action.  Specific procedures and processes are described in Sections 116-124.  [Rn, 20 NMAC 2.99.7.7, 11-23-98; A, 11-23-98]

      I.  "Control strategy implementation plan revision" is the portion of the SIP which contains specific strategies for controlling the emissions of and reducing ambient levels of pollutants in order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (CAA §§ 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and  §§192(a) and 192(b), for nitrogen dioxide).  [Rn, 20 NMAC 2.99.7.8, 11-23-98]

      J.  "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.  [Rn, 20 NMAC 2.99.7.11, 11-23-98]

      K.  "Design scope" means the design aspects of a facility 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.  [Rn, 20 NMAC 2.99.7.12, 11-23-98]

      L.  "FHWA" means the Federal Highway Administration of US DOT.  [Rn, 20 NMAC 2.99.7.14, 11-23-98]

      M.  "FHWA/FTA project," for the purpose of this Part, 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.  [Rn, 20 NMAC 2.99.7.15, 11-23-98]

      N.  "Forecast period" with respect to a transportation plan is the period covered by the transportation plan pursuant to 23 CFR part 450.  [Rn, 20 NMAC 2.99.7.17, 11-23-98]

      O.  "FTA" means the Federal Transit Administration of US DOT. [Rn, 20 NMAC 2.99.7.16, 11-23-98]

      P.  "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 shall 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.  [Rn, 20 NMAC 2.99.7.18, 11-23-98]

      Q.  "Horizon year" is a year for which the transportation plan describes the envisioned transportation system in accordance with Section 125.  [Rn, 20 NMAC 2.99.7.19, 11-23-98; A, 11-23-98]
         
      R.  "Hot-spot analysis" is an estimation of likely future localized CO and PM₁₀ 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.  [Rn, 20 NMAC 2.99.7.20, 11-23-98; A, 11-23-98]

      S.  "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.  [Rn, 20 NMAC 2.99.7.22, 11-23-98]

      T.  "Lapse" means that the conformity determintation for a transportation plan or TIP has expired, and thus there is no currently conforming transportation plan and TIP.  [11-23-98]

      U.  "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 §175A of the CAA, as amended.  [Rn, 20 NMAC 2.99.7.24, 11-23-98; A, 11-23-98]

      V.  "Maintenance plan" means an implementation plan under Section 175A of the CAA, as amended.  [11-23-98]

      W.  "Metropolitan planning organization (MPO)" is that organization designated as being responsible, together with the State, for conducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 5303. It is the forum for cooperative transportation decision-making.  In the absence of an MPO, the NMSHTD shall be responsible for the transportation planning processes assigned to MPOs under this Part . [Rn, 20 NMAC 2.99.7.26, 11-23-98; A, 11-23-98]

      X.  "Milestone" has the meaning given in §§ 182(g)(1) and 189(c) of the CAA.  A milestone consists of an emissions level and the date on which it is required to be achieved.  [Rn, 20 NMAC 2.99.7.27, 11-23-98]

      Y.  "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 by the SIP to highway and transit vehicle use and emissions.  [Rn, 20 NMAC 2.99.7.28, 11-23-98; A, 11-23-98]

      Z.  "National ambient air quality standards (NAAQS)" are those standards established pursuant to §109 of the CAA.  [Rn, 20 NMAC 2.99.7.29, 11-23-98]

      AA.  "NEPA" means the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et seq.  [Rn, 20 NMAC 2.99.7.30, 11-23-98] 

      BB.  "NEPA process completion," for the purposes of this Part, 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.  [Rn, 20 NMAC 2.99.7.31, 11-23-98; A, 11-23-98]

      CC.  "NMSHTD" means the New Mexico State Highway and Transportation Department or its successor agency or authority, as represented by the department Secretary or his or her designee.  [Rn, 20 NMAC 2.99.7.33, 11-23-98]

      DD.  "Nonattainment area" means any geographic region of the United States which has been designated as nonattainment under §107 of the CAA for any pollutant for which a national ambient air quality standard exists.  [Rn, 20 NMAC 2.99.7.34, 11-23-98]

      EE.  "Project" means a highway project or transit project.  [Rn, 20 NMAC 2.99.7.37, 11-23-98]

      FF.  “Protective finding” means a determination by US 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.  [11-23-98]

      GG.  "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 Law 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.  [Rn, 20 NMAC 2.99.7.38, 11-23-98; A, 11-23-98]

      HH.  "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:

          1.  All principal arterial highways; and

          2.  All fixed guideway transit facilities that offer an alternative to regional highway travel.  [Rn, 20 NMAC 2.99.7.39, 11-23-98; A, 11-23-98]

      II.  "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.  [11-23-98]

      JJ.  "Standard" means a national ambient air quality standard.  [Rn, 20 NMAC 2.99.7.41, 11-23-98]

      KK.  "State Implementation Plan (SIP)"  means an applicable implementation plan and the applicable portion (or portions) of the New Mexico State Implementation Plan, or most recent revision thereof, which has been approved under §110, or promulgated under §110(c), or promulgated or approved pursuant to regulations promulgated under §301(d) of the CAA and which implements the relevant requirements of the CAA (see the definition for “applicable implementation plan”).  [Rn, 20 NMAC 2.99.7.42, 11-23-98; A, 11-23-98]

      LL.  "Title 23 U.S.C."  means title 23 of the United States Code.  [Rn, 20 NMAC 2.99.7.44, 11-23-98]

      MM.  "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.  [Rn, 20 NMAC 2.99.7.45, 11-23-98]

      NN.  "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 shall 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.  [Rn, 20 NMAC 2.99.7.46, 11-23-98]

      OO.  "Transportation control measure (TCM)" is any measure that is specifically identified and committed to in the SIP that is either one of the types listed in §108 of the CAA, or any other measure for the purpose of reducing emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or changing traffic flow or congestion conditions. Notwithstanding the above, 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 Part.  [Rn, 20 NMAC 2.99.7.49, 11-23-98]

      PP.  "Transportation improvement program (TIP)" means a staged, multi-year, intermodal program of transportation projects covering a metropolitan planning area which is consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR part 450.  [Rn, 20 NMAC 2.99.7.50, 11-23-98]

      QQ.  "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. [Rn, 20 NMAC 2.99.7.51, 11-23-98]

      RR.  "Transportation project" is a highway project or a transit project. [Rn, 20 NMAC 2.99.7.52, 11-23-98]

      SS.  "US DOT" means the United States Department of Transportation. [Rn, 20 NMAC 2.99.7.53, 11-23-98]

      TT.  "Written commitment" for the purposes of this Part means a written commitment that incudes 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.  [11-23-98]

108.  DOCUMENTS:  Documents incorporated and cited in this Part may be viewed at the New Mexico Environment Department, Air Quality Bureau, Harold Runnels Building, 1190 St. Francis Dr., or 2048 Galisteo St., Santa Fe, NM  87502. [Rn, 20 NMAC 2.99.66, 11-23-98; A, 11-23-98]

109.  APPLICABILITY:

      A.  Action applicability:

          1.  Except as provided for in Section 109.C or Section 149.A conformity determinations are required for: 

              a.  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 the NMSHTD in the absence of an MPO) or US DOT; 

              b.  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 the NMSHTD in the absence of an MPO) or US DOT; and 

              c.  The approval, funding, or implementation of FHWA/FTA projects.  [Rn, 20 NMAC 2.99.8.1, 11-23-98; A, 11-23-98, 11-23-98]

          2.  Conformity determinations are not required under this Part for individual projects which are not FHWA/FTA projects.  However, Section 140 applies to such projects if they are regionally significant.  [Rn, 20 NMAC 2.99.8.2, 11-23-98; A, 11-23-98]

      B.  Geographic and pollutant applicability are set out in Section 101 (SCOPE).  [Rn, 20 NMAC 2.99.8.3, 11-23-98; A, 11-23-98, 11-23-98]

      C.  Limitations:

          1.  Not in SIP and Federal requirements apply.

          2.  A new conformity determination for the project will be required if there is a significant change in project design concept and scope, if a supplemental environmental document for air quality purposes is initiated, or if no major steps to advance the project have occurred within the most recent three year period.  [Rn, 20 NMAC 2.99.8.5, 11-23-98]

110.  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 a SIP prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements for allocation of funds among States or other jurisdictions.  [Rn, 20 NMAC 2.99.9, 11-23-98]

111.  FREQUENCY OF CONFORMITY DETERMINATIONS:  Conformity determinations and conformity redeterminations for transportation plans, TIPs, and FHWA/FTA projects shall be made according to the requirements of Sections 111 through 115 and the SIP.  [Rn, 20 NMAC 2.99.10, 11-23-98; A, 11-23-98]

112.  FREQUENCY OF CONFORMITY DETERMINATIONS -  TRANSPORTATION PLANS:

      A.  Each new transportation plan shall be found to conform before the transportation plan is approved by the MPO (or the NMSHTD in the absence of an MPO) and accepted by the US DOT.  [Rn, 20 NMAC 2.99.11.1, 11-23-98]

      B.  All transportation plan revisions shall be found to conform before the transportation plan revisions are approved by the MPO (or the NMSHTD in the absence of an MPO) or  accepted by the US DOT, unless the revision merely adds or deletes exempt projects listed in Section 149 and has been made in accordance with the notification provisions of Section 122.  The conformity determination shall be based on the transportation plan and the revision taken as a whole.  [Rn, 20 NMAC 2.99.11.2, 11-23-98; A, 11-23-98]

      C.  The MPO and US DOT shall determine the conformity of the transportation plan no less frequently than every three (3) years.  If more than three (3) years elapse after US DOT's conformity  determination without the MPO and US DOT determining conformity of the transportation plan, the existing conformity determination will lapse.   [Rn, 20 NMAC 2.99.11.3, 11-23-98; A, 11-23-98] 

113.  FREQUENCY OF CONFORMITY DETERMINATIONS - TRANSPORTATION IMPROVEMENT PROGRAMS:

      A.  A new TIP must be found to conform before the TIP is approved by the MPO (or the NMSHTD in the absence of an MPO) or accepted by the US DOT.  [Rn, 20 NMAC 2.99.12.1, 11-23-98]

      B.  A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approved by the MPO (or the NMSHTD in the absence of an MPO) or accepted by the US DOT, unless the amendment merely adds or deletes exempt projects listed in Section 149 and has been made in accordance with the notification provisions of Section 122.  [Rn, 20 NMAC 2.99.12.2, 11-23-98; A, 11-23-98]

      C.  The MPO and US DOT shall determine the conformity of the TIP  no less frequently than every three years or else the existing conformity determination will lapse.  [Rn, 20 NMAC 2.99.12.4, 11-23-98; A, 11-23-98]

      D.  After an MPO (or the NMSHTD in the absence of an MPO) adopts a new or revised transportation plan, conformity of the TIP shall be redetermined by the MPO (or the NMSHTD in the absence of an MPO) and the US DOT within six months from the date of US DOT's conformity determination for the transportation  plan, unless the new or revised plan merely adds or deletes exempt projects listed in Section 149 and has been made in accordance with the notification provisions of Section 122.  Otherwise, the existing conformity determination for the TIP will lapse.  [Rn, 20 NMAC 2.99.12.3, 11-23-98; A, 11-23-98]

114.  Not in SIP and Federal requirements apply.

115.  FREQUENCY OF CONFORMITY DETERMINATIONS - TRIGGERS FOR TRANSPORTATION PLAN AND TIP CONFORMITY DETERMINATIONS:  Conformity of existing transportation plans and TIPs shall be redetermined within 18 months of the following, or the existing conformity determination will lapse, and no new project-level conformity determinations may be made until conformity of the transportation plan and TIP has been determined by the MPO and US DOT:    [11-23-98]

      A.  November 24, 1993;  [11-23-98]

      B.  The date of the Department's initial submission to US EPA of each control strategy implementation plan or maintenance plan establishing a motor vehicle emissions budget;  [11-23-98]

      C.  US EPA approval of a control strategy implementation plan revision or maintenance plan which establishes or revises a motor vehicle emissions budget;  [11-23-98]

      D.  US EPA approval of an implementation plan revision that adds, deletes, or changes TCMs; and   [11-23-98]

      E.  US EPA promulgation of an implementation plan which establishes or revises a motor vehicle emissions budget or adds, deletes, or changes TCMs. [11-23-98]

116.  CONSULTATION:

      A.  Sections 116 through 124 provide procedures for the interagency (Federal, State, and local) consultation process, resolution of conflicts, and public consultation.  Public consultation procedures will be developed in accordance with the requirements for public involvement in 23 CFR Part 450. The affected agencies listed in Section 116.C below shall undertake a consultation process with each other prior to the development of:

          1.  Conformity determinations;

          2.  Major activities listed in Section 117 below; 

          3.  Specific major activities listed in Section 120 below; and

          4.  Specific routine activities listed in Section 121 below.

      This consultation process shall follow the consultation procedures described in Section 119 below.  [Rn, 20 NMAC 2.99.14.1, 11-23-98; A, 11-23-98]

      B.  Prior to  EPA's approval of this Part, any MPO (or the NMSHTD in the absence of an MPO) and the NMSHTD, before making any conformity determinations, shall provide reasonable opportunity for consultation with the Department, the local transportation agency in the county where the nonattainment or maintenance area is located, the local air quality agency in the county in which the nonattainment or maintenance area is located, New Mexico FHWA Division offices,  FTA Region 6 offices, and EPA Region 6, including consultation on the issues described in Section 117.  This opportunity for consultation shall be provided prior to the determination of conformity.  [Rn, 20 NMAC 2.99.14.2, 11-23-98; A, 11-23-98]

      C.  Affected agencies:

          1.  Agencies which are affected by this Part and which are required to participate in the consultation process are: 

              a.  The designated MPO for the nonattainment or maintenance area;

              b.  The Department;

              c.  The NMSHTD;

              d.  The local transportation agency for the county or city in which the nonattainment or maintenance area is located;

              e.  The local transit agency for the city or county in which the nonattainment or maintenance area is located;

              f.   EPA Region 6;

              g.  New Mexico FHWA Division offices; 

              h.  FTA Region 6;

              i.  Local air quality agencies; and

              j.  Any other organization or resource agency within the State responsible under State law for developing, submitting or implementing transportation-related provisions of an implementation plan.

          2.  Agencies which may be affected by this Part and which are entitled to participate in the interagency consultation process include:

              a.  The NMSHTD District office for the county in which the nonattainment or maintenance area is located; and

              b.  The city or county  government in the city or county where the nonattainment or maintenance area is located.  [Rn, 20 NMAC 2.99.14.3, 11-23-98; A, 11-23-98]

      D.  Policy level points of contact and policy level meetings.

          1.  The policy level points of contact for participating organizations are as follows:
 

          2.  Policy level meetings shall be those meetings to which the following individuals have been given ample notice thereof:

              a. Policy level points of contact for all agencies which are required to participate in the conformity process; and

              b. The policy level points of contact for all agencies and organizations which are entitled to participate and have submitted a written request to participate in the conformity process.  [Rn, 20 NMAC 2.99.14.4, 11-23-98; A, 11-23-98]

117.  AGENCY ROLES IN CONSULTATION:  Specific roles of the agencies participating in the interagency consultation process are listed below. Specific responsibilities of the agencies participating in the interagency consultation process are listed in Section 118.  For the purposes of this Part, the lead agency for all conformity processes and procedures is that agency which is responsible for initiating the consultation process, preparing the initial and final drafts of the document or decision, and for assuring the adequacy of the interagency consultation process.  [Rn, 20 NMAC 2.99.15, 11-23-98; A, 11-23-98]

      A.  The Department shall be the lead agency for the development of:

          1.  Applicable control strategy implementation plan revisions for the nonattainment or maintenance area; 

          2.  The list of TCMs to be submitted as part of the SIP; and

          3.  Any amendments or revisions thereto.  [Rn, 20 NMAC 2.99.15.1, 11-23-98]

      B.  In the case of areas in which an MPO has been established, the designated MPO for the nonattainment or maintenance area shall be the lead agency for:

          1. The development of the unified planning work program under 23 CFR § 450.314;

          2.  Development of the transportation plan for the nonattainment or maintenance area;

          3.  Development of the TIP for the nonattainment or maintenance area;

          4.  Any amendments or revisions thereto; 

          5.  Any determinations of conformity under this Part for which that MPO is responsible; 

          6.  Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas as required by Section 128.G.2.c; and

          7. Development of TCMs, in cooperation with the Department.  [Rn, 20 NMAC 2.99.15.2, 11-23-98; A, 11-23-98]

      C.  In the case of areas in which an MPO has not been established, the NMSHTD shall be the lead agency for:

          1. The development of the transportation plan for the nonattainment or maintenance area;

          2. Development of the TIP (Transportation Improvement Program) for the nonattainment or maintenance area; 

          3.  Any amendments or revisions thereto;

          4. Any determinations of conformity under this Part for which an MPO would be otherwise responsible; 

          5.  Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas as required by Section128.G.2.c; and
      
          6. Development of TCMs, in cooperation with the Department.  [Rn, 20 NMAC 2.99.15.3, 11-23-98; A, 11-23-98]

118.  AGENCY RESPONSIBILITIES IN CONSULTATION:

      A.  The  Department shall be responsible for developing or providing:

          1.   Emissions inventories;  

          2.   Emissions budgets;

          3.   Air quality modeling; 

          4.   Attainment demonstrations;

          5.   Control strategy implementation plan revisions; 

          6.   Regulatory TCMs; and

          7.   Updated motor vehicle emissions factors.  [Rn, 20 NMAC 2.99.16.1, 11-23-98] 

      B.  The designated MPO (or, in nonattainment or maintenance areas where an MPO has not been established, the NMSHTD) shall be responsible for:

          1.  Developing transportation plans and TIPs;

          2.  Developing and evaluating TCM transportation impacts;

          3.  Developing transportation and socioeconomic data and planning assumptions and providing such data and planning assumptions for use in air quality analysis to determine conformity of transportation plans, TIPs, and projects;

          4.  Monitoring regionally significant projects;

          5.  Developing system- or facility-based or other programmatic (non-regulatory) TCMs;

          6.  Providing technical input on emissions budgets; and

          7.  Performing transportation modeling, regional emissions analyses and documentation of timely implementation of TCMs needed for conformity assessments.  [Rn, 20 NMAC 2.99.16.2, 11-23-98]

      C.  The NMSHTD shall be responsible for:

          1.  Providing technical input on proposed revisions to motor vehicle emissions factors;

          2.  Distributing draft and final highway or transit project environmental documents to other agencies; and

          3.  Convening air quality technical review meetings on specific highway or transit plans, programs and projects when requested by other agencies or as needed.  [Rn, 20 NMAC 2.99.16.3, 11-23-98]

      D.  FHWA New Mexico Offices and FTA Region 6 shall be responsible for:
      
          1.  Assuring timely action on final findings of conformity, after consultation with other agencies as provided in Sections 116 through 124; and

          2.  Providing guidance on conformity and the transportation planning process to agencies participating in the interagency consultation process. [Rn, 20 NMAC 2.99.16.4, 11-23-98; A, 11-23-98] 

      E.  EPA Region 6 shall be responsible for providing guidance on conformity criteria and procedures to agencies participating in the interagency consultation process.  [Rn, 20 NMAC 2.99.16.5, 11-23-98; A, 11-23-98] 

119.  GENERAL CONSULTATION PROCEDURES:  The following are the responsibilities of lead and participating agencies at each stage of the consultation process:
[Rn, 20 NMAC 2.99.17, 11-23-98]

      A.  It shall be the affirmative responsibility of the lead agency to initiate the consultation process by:

          1.  Notifying other participants of the plan, program, or project which must undergo the interagency consultation process;

          2.  Preparing an initial draft of the document being developed, together with necessary supporting information;

          3.  Convening consultation meetings and agendas when the initial draft of the document being developed is complete; and

          4.  Appointing the conveners of technical meetings.  [Rn, 20 NMAC 2.99.17.1; 11-23-98; A, 11-23-98]

      B.  It shall be the responsibility of the lead agency to facilitate the interagency consultation process by:
          1.  Conferring with all other agencies identified under Section 116.C above who are participating in the particular consultation process;

          2.  Providing all appropriate information needed for meaningful input to the participating agencies, including timely notification of all policy level and relevant technical meetings;

          3.  Soliciting early and continuing input from participating agencies;

          4.  Scheduling consultation meetings as specified in this Part;

          5.  Conducting the consultation process as described in this Section 119;

          6.  Assuring that all relevant documents and information, including drafts of the document being developed and necessary background documents, are supplied to all participants in the consultation process in a timely manner;

          7.  Where required, assuring policy-level contact with those agencies;

          8.  Considering the views of each participating agency and (except with respect to those actions for which only notification is required) responding to written comments in a timely, substantive written manner prior to making any final decision on the document that is the subject of the consultation process; and

          9.  Assuring that such views and written response are made part of the record of any decision or action.  [Rn, 20 NMAC 2.99.17.2, 11-23-98; A, 11-23-98]

      C.  Regular consultation on major activities, as defined in Section 120, shall include policy level meetings beginning no later than 9 months prior to the date a final document is required (or the date on which such agency begins its own work on such document, if later) and continuing at regular, scheduled intervals no less frequently than quarterly.  In addition, technical meetings shall be convened as necessary.  Not later than 30 days prior to the adoption or approval of the final document or decision, the lead agency shall supply the final draft document, including all relevant information and documents, as appropriate, to the participating agencies.  [Rn, 20 NMAC 2.99.17.3, 11-23-98; A, 11-23-98]

      D.  Regular consultation on routine activities, as defined in Section 121, shall include meetings at regular, scheduled intervals no less frequently than semiannually, and shall be on the agenda of at least one policy level meeting.  In addition, technical meetings shall be convened as necessary. [Rn, 20 NMAC 2.99.17.4, 11-23-98; A, 11-23-98]

      E. The lead agency shall provide each final document for which a consultation process was required to be undertaken (including, but not limited to, the relevant portions of SIPs or implementation plan revisions, transportation plans, and TIPs, and determinations of conformity), together with all supporting information, as appropriate, to each participating agency within 14 calendar days after adopting or approving such document or making such determination.  The lead agency may supply a checklist of available supporting information, which the participating agencies may use to request all or part of such supporting information, in lieu of generally distributing all supporting information.  [Rn, 20 NMAC 2.99.17.5, 11-23-98]

      F.  It shall be the responsibility of each participating agency (those listed in Section 116.C.1) during the consultation process to:

          1.  Confer with the lead and other participating agencies (those listed in Section 116.C.1) in the consultation process;

          2.  Review and comment as appropriate (including comments in writing) on all proposed and final  draft  documents and decisions within 30 days of receipt;

          3.  Attend consultation and decision meetings;

          4.  Assure policy-level contact with other participants;

          5.  Provide input on any area of substantive expertise or responsibility (including, but not limited to, planning assumptions, modeling, information on status of TCM implementation, and interpretation of regulatory or other requirements); and

          6.  Provide technical assistance to the lead agency or consultation process in accordance with this section when requested.  [Rn, 20 NMAC 2.99.17.6, 11-23-98; A, 11-23-98]

      G.  A meeting that is scheduled or required for another purpose may be used for the purposes of consultation if the conformity consultation purpose is specifically identified in the announcement for the meeting and all participating agencies are notified of such meeting.  [Rn, 20 NMAC 2.99.17.7, 11-23-98]

120.  CONSULTATION PROCEDURES FOR SPECIFIC MAJOR ACTIVITIES:  An interagency consultation process among the members of the lead and participating agencies shall be undertaken for the following specific major activities in accordance with all the procedures specified in Section 119 above.  The lead agency for each activity shall be as specified, and the participating agencies shall be the agencies specified in Section 116.C above.  [Rn, 20 NMAC 2.99.18, 11-23-98; A, 11-23-98]

      A.  Evaluation and choice of each model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses, including vehicle miles traveled (VMT) forecasting. The lead agency shall be the  MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.1, 11-23-98]

      B.  Determination of 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.  The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.2, 11-23-98]

      C.  Evaluation of whether projects otherwise exempted from meeting the requirements of this Part (see Section 149) should be treated as non-exempt in cases where potential adverse emissions impacts may exist for any reason.  The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.3, 11-23-98; A, 11-23-98]

      D.  Determination, as required by Section 132.C.1, of whether past obstacles to implementation of TCMs which are behind the schedule established in the SIP 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.  Consultation shall also include consideration of whether delays in TCM implementation necessitate revisions to the SIP to remove TCMs or substitute TCMs or other emission reduction measures.  The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.4, 11-23-98; A, 11-23-98]

      E.  Determination, as required by Section 140, of whether 1) the project is included in the regional emissions analysis supporting the currently conforming TIP's conformity determination, even if the project is not strictly "included" in the TIP for the purposes of MPO project selection or endorsement, and 2) the project's design concept and scope have changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impact use of the facility. The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO). [Rn, 20 NMAC 2.99.18.5, 11-23-98; A, 11-23-98]

      F.  Determination of what forecast of vehicle miles traveled (VMT) to use in establishing or tracking emissions budgets, developing transportation plans, TIPS, or making conformity determinations. The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.6, 11-23-98]

      G. Verification of what forecast of vehicle miles traveled (VMT) to use in developing SIPs.  The lead agency shall be  the Air Quality Bureau of the Department.  [Rn, 20 NMAC 2.99.18.7, 11-23-98]

      H.  Consultation, within the context of a Memorandum of Agreement, on emissions analysis for transportation activities which cross the borders of MPOs or nonattainment areas or air basins.  The lead agency shall be the NMSHTD.  [Rn, 20 NMAC 2.99.18.8, 11-23-98] 

      I.  An interagency consultation process shall be undertaken for evaluating events which will trigger new conformity determinations in addition to those triggering events established in Sections 111 through 115.  The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [Rn, 20 NMAC 2.99.18.9, 11-23-98; A, 11-23-98]
 
      J.  In the event that the metropolitan planning area does not include the entire nonattainment or maintenance area, an interagency consultation process involving the designated MPO for the nonattainment or maintenance area, the NMSHTD, local transportation agencies, and the Department, shall be undertaken, in the context of an MOA, for cooperative planning and analysis for purposes of determining conformity of all projects outside the metropolitan area and within the nonattainment or maintenance area. The lead agency shall be the NMSHTD.  [Rn, 20 NMAC 2.99.18.10, 11-23-98]

      K.  In nonattainment or maintenance areas where more than one MPO is involved, such MPOs must develop a Memorandum of Agreement or Memorandum of Understanding reflecting their consultation.  [Rn, 20 NMAC 2.99.18.11, 11-23-98]

      L.  In nonattainment or maintenance areas where the MPO's jurisdiction does not cover the entire nonattainment or maintenance area, the MPO and NMSHTD must develop a Memorandum of Agreement or a Memorandum of Understanding reflecting their consultation.  [Rn, 20 NMAC 2.99.18.12, 11-23-98]

      M.  Choosing conformity tests and methodologies for isolated rural nonattainment and maintenance areas, as required by Section 128.G.2.c.  The lead agency shall be the MPO (or the NMSHTD in the absence of an MPO).  [11-23-98]

121.  CONSULTATION PROCEDURES FOR SPECIFIC ROUTINE ACTIVITIES:  An interagency consultation process among the lead and participating agencies shall be undertaken for the following routine activities in accordance with all the procedures specified in Section 119 above.  The lead agency for each activity shall be as specified, and the participating agencies shall be the agencies specified in Section 116.C. above or as specified for the specific activity. Not later than 30 days prior to the preparation of the final document or decision, the lead agency shall supply all relevant information and documents, as appropriate, to the participating agencies.  [Rn, 20 NMAC 2.99.19, 11-23-98; A, 11-23-98]

      A.  Identification, as required by Section 146.B, of 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.  The lead agency shall be either the MPO or the NMSHTD, in cooperation with the Department.  [Rn, 20 NMAC 2.99.19.1, 11-23-98; A, 11-23-98]

      B.  Assumption of the location and design concept and scope of projects which are disclosed to the MPO, as required by Section 121.D, but whose sponsors have not yet decided these features in sufficient detail to perform the regional emissions analysis according to the requirements of Sections 141-145.  The lead agency shall be either the MPO or the NMSHTD.  Participating agencies shall include recipients of funds designated under title 23 U.S.C. or the Federal Transit Laws.  [Rn, 20 NMAC 2.99.19.2, 11-23-98; A, 11-23-98]

      C.  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).  The lead agency shall be either the NMSHTD or the MPO, as applicable.  Participating agencies shall be the MPO, the Department, and the NMSHTD.  [Rn, 20 NMAC 2.99.19.3, 11-23-98]

      D.  Regionally Significant Non-FHWA/FTA Projects:

          1.  Assurance 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 all those sponsored 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 assure that any changes to those plans are immediately disclosed.  The lead agency for this process shall be the agency which is implementing the project.  Participating agencies shall be the MPO, the Department,  the NMSHTD, local transportation and transit agencies for the city or county in which the nonattainment or maintenance area is located, and recipients of funds designated under title 23 U.S.C. or the Federal Transit Laws.

          2. The sponsor of any such regionally significant project, and any agency that becomes aware of any such project through applications for approval, permitting or funding or otherwise, shall disclose such project to the designated MPO for the nonattainment or maintenance area and the NMSHTD in a timely manner.  Such disclosure shall be made not later than the first occasion on which any of the following actions is sought:

              a.  Any policy board action necessary for the project to proceed;

              b.  The issuance of administrative permits for the facility or for construction of the facility;

              c.  The execution of a contract to design or construct the facility;

              d.  The execution of any indebtedness for the facility;

              e.  Any final action of a board, commission or administrator authorizing or directing employees to proceed with design, permitting or construction of the project; or

              f.  The execution of any contract to design or construct; or any approval needed for any facility that is dependent on the completion of regionally significant project.

          3.  In the case of any such regionally significant project that has not been disclosed in a timely manner to the designated MPO for the nonattainment or maintenance area, the NMSHTD, and other interested agencies participating in the consultation process, such regionally significant project and all other regionally significant projects of that sponsor shall be deemed to be not included in the regional emissions analysis supporting the currently conforming TIP's conformity determination and to be not consistent with the motor vehicle emissions budget in the SIP, for the purposes of Section 140. In the case of repeated failures to disclose regionally significant projects by an agency that becomes aware of any such project through applications for approval, permitting or funding, all other regionally significant projects within the jurisdiction of such agency shall be deemed to be not included in the regional emissions analysis supporting the currently conforming TIP's conformity determination and to be not consistent with the motor vehicle emissions budget in the SIP, for the purposes of Section 140.

          4.  For the purposes of this Section and Section 140, the phrase "adopt or approve of a regionally significant project" means the first time any action necessary to authorizing a project occurs, such as any policy board action necessary for the project to proceed, the issuance of administrative permits for the facility or for construction of the facility, the execution of a contract to construct the facility, any final action of a board, commission or administrator authorizing or directing employees to proceed with construction of the project, or any written decision or authorization from the MPO that the project may be adopted or approved.  [Rn, 20 NMAC 2.99.19.4, 11-23-98; A, 11-23-98]

122.  NOTIFICATION PROCEDURES FOR ROUTINE ACTIVITIES:  Notification of affected agencies (including those listed in Section 116.C.1) of transportation plan or TIP revisions or amendments which merely add or delete exempt projects listed in Section 149, shall be the affirmative responsibility of the NMSHTD and/or the MPO.  Such notification shall be provided not later than 30 days prior to the preparation of the final draft of the document or decision.  This process shall include:

      A.  Notification of the affected agencies (including those listed in Section 116.C.1) early in the process of decision on the final document; and

      B.  Supplying all relevant documents and information to the affected agencies (including those listed in Section 116.C.1).  [Rn, 20 NMAC 2.99.20, 11-23-98; A, 11-23-98]

123.  CONFLICT RESOLUTION AND APPEALS TO THE GOVERNOR: 

      A.  Any conflict among State agencies or between State agencies and an MPO shall be escalated to the Governor if the conflict cannot be resolved by the heads of the involved agencies.  Prior to such escalation, such agencies shall make every effort to resolve any differences, including personal meetings between the heads of such agencies or their policy-level representatives, to the extent possible.  [Rn, 20 NMAC 2.99.21.1, 11-23-98]

      B.  The  Department has 14 calendar days to appeal a determination of conformity (or other policy decision under this Part) to the Governor after the NMSHTD or MPO has notified the Department of the resolution of all comments on such determination of conformity or policy decision.  Such 14-day period shall commence when the MPO or the NMSHTD has confirmed receipt by the Secretary of the Department of the resolution of the comments of the Department.  If the  Department appeals to the Governor, the final conformity determination must have the concurrence of the Governor.  The  Department must provide notice of any appeal under this subsection to the MPO and the NMSHTD. If the  Department does not appeal to the Governor within 14 days, the MPO or NMSHTD may proceed with the final conformity determination.  [Rn, 20 NMAC 2.99.21.2, 11-23-98; A, 11-23-98]

      C.  In the case of any comments with regard to findings of fiscal constraint under Section 127 or the air quality effects of any determination of conformity, the NMSHTD has 14 calendar days to appeal a determination of conformity (or other policy decision under this Part) to the Governor after the MPO has notified the  Department or the NMSHTD of the resolution of all comments on such determination of conformity or policy decision.  Such 14-day period shall commence when the MPO has confirmed receipt by the  Secretary of the Department or the NMSHTD of the resolution of the comments of the NMSHTD. If the NMSHTD appeals to the Governor, the final conformity determination must have the concurrence of the Governor.  The NMSHTD must provide notice of any appeal under this subsection to the MPO and the  Department. If the NMSHTD does not appeal to the Governor within 14 days, the MPO may proceed with the final conformity determination.  [Rn, 20 NMAC 2.99.21.3, 11-23-98; A, 11-23-98]

      D.  The Governor may delegate the role of hearing any such appeal under this subsection and of deciding whether to concur in the conformity determination to another official or agency within the State, but not to the head or staff of the  Department or any local air quality agency, the NMSHTD, a State transportation commission or board, any agency that has responsibility for one of these functions, or an MPO.  [Rn, 20 NMAC 2.99.21.4, 11-23-98; A, 11-23-98]

124.  PUBLIC CONSULTATION PROCEDURES:

      A.  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, and projects, consistent with the requirements of 23 CFR part 450, including §§ 450.316 (b)(1), 450.322(c), and 450.324(c) as in effect on the date of adoption of this Part.  Any charges imposed for public inspection and copying should be consistent with the fee schedule contained in 49 CFR 7.95.  In addition, any such agency must specifically address in writing  all public comments which allege 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. Any such agency shall also provide opportunity for public involvement in conformity determinations for projects to the extent otherwise required by law (e.g. NEPA).  [Rn, 20 NMAC 2.99.22.1, 11-23-98; A, 11-23-98, 9-8-99]

      B.  The opportunity for public involvement provided under this subsection shall include access to information, emissions data, analyses, models and modeling assumptions used to perform a conformity determination, and the obligation of any such agency to consider and respond in writing to significant comments. [Rn, 20 NMAC 2.99.22.2, 11-23-98]

      C.  No transportation plan, TIP, or project may be found to conform unless the determination of conformity has been subject to a public involvement process in accordance with this subsection, without regard to whether the US DOT has certified any process under 23 CFR part 450.  [Rn, 20 NMAC 2.99.22.3, 11-23-98]
      
125.  CONTENT OF TRANSPORTATION PLANS:

      A.  Transportation plans adopted after January 1, 1997, in serious, severe, or extreme ozone nonattainment areas and in serious carbon monoxide 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, after consultation in accordance with Sections 116-124, may choose any years to be horizon years, subject to the following restrictions: 

              a.   Horizon years may be no more than 10 years apart.

              b.   The first horizon year may be no more than 10 years from the base year used to validate the transportation demand planning model.

              c.   If the attainment year is in the time span of the transportation plan, the attainment year shall be a horizon year.

              d.   The last horizon year shall be the last year of the transportation plan's forecast period.

          2.  For these horizon years:   

              a.  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 Sections 116-124; 

              b.  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 sufficiently to allow modeling of their transit ridership.  The description of additions and modifications to the transportation network shall also be sufficiently specific to show that there is a reasonable relationship between expected land use and the envisioned transportation system; and

              c.  Other future transportation policies, requirements, services, and activities, including intermodal activities, shall be described. [Rn, 20 NMAC 2.99.23.1, 11-23-98; A, 11-23-98]

      B.  Moderate areas reclassified to serious:  Ozone or CO nonattainment areas which are reclassified from moderate to serious and have an urbanized population greater than 200,000 must meet the requirements of Section 125.A within two years from the date of reclassification.  [Rn, 20 NMAC 2.99.23.2, 11-23-98; A, 11-23-98]

      C.  Transportation plans for other areas:  Transportation plans for other areas must meet the requirements of Section 125.A at least to the extent it has been the previous practice of the MPO to prepare plans which meet those requirements.  Otherwise, transportation plans must describe the transportation system envisioned for the future specifically enough to allow determination of conformity according to the criteria and procedures of Sections 128-138.  [Rn, 20 NMAC 2.99.23.3, 11-23-98; A, 11-23-98]

      D.  Savings:  The requirements of this Section supplement other requirements of applicable law or regulation governing the format or content of transportation plans.  [Rn, 20 NMAC 2.99.23.4, 11-23-98; A, 11-23-98]

126.  RELATIONSHIP OF TRANSPORTATION PLAN AND TIP CONFORMITY TO 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 Sections 128-138 for projects not from a TIP before NEPA process completion.  [Rn, 20 NMAC 2.99.24, 11-23-98]

127.  FISCAL CONSTRAINTS FOR TRANSPORTATION PLANS AND TIPS: Transportation plans and TIPs must be fiscally constrained consistent with US DOT's metropolitan planning regulations at 23 CFR Part 450 in order to be found in conformity.  The determination that a transportation plan or TIP is fiscally constrained shall be subject to consultation in accordance with Sections 116-124.  [Rn, 20 NMAC 2.99.25, 11-23-98; A, 11-23-98]

128.  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 US DOT must demonstrate that the applicable criteria and procedures in this Part are satisfied and the MPO and US 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 or State projects), the relevant pollutant(s), and the status of the implementation plan.  [Rn, 20 NMAC 2.99.26.1, 11-23-98; A, 11-23-98]

      B.  The following table (Table 1) indicates the criteria and procedures in Sections 129 through 138 which apply for transportation plans, TIPs, and FHWA/FTA projects.  Paragraphs C through F of this Section (128) explain when the budget, emission reduction, and hot spot tests are required for each pollutant.  Paragraph G of this Section (128) addresses isolated rural nonattainment and maintenance areas.  Table 1 follows:  

Table 1. Conformity Criteria

[Rn, 20 NMAC 2.99.26.2, 11-23-98; A, 11-23-98] 

      C. to F.   Not in SIP and Federal requirements apply.

      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 Sections 129, 130, 131, 132.D, 135, and 136. Until US 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 Section 135.B (“Localized CO and PM10 violations (hot spots)”).

          2.  Isolated rural nonattainment and maintenance areas are subject to the budget and/or emission reduction tests as described in paragraphs C through F of this Section, with the following modifications:

              a.  When the requirements of Sections 137 and 138 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.

              b.  In isolated rural nonattainment and maintenance areas that are subject to Section 137, 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:

                  (1) Section 137;

                  (2) Section 138 (including regional emissions analysis for NOX in all ozone nonattainment and maintenance areas, notwithstanding Section 138.D.2; or

                  (3) 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.

              c.  The choice of requirements in paragraph G.2.b of this Section and the methodology used to meet the requirements of paragraph G.2.b(3) of this Section must be determined through the interagency consultation process required in Sections 117.B.6 and 117.C.5 through which the relevant recipients of title 23 U.S.C. or Federal Transit Laws funds, the NMSHTD, the Department, or the local air quality agency should reach consensus about the option and methodology selected.  US EPA and US 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 Section 123, which applies to Department comments on a conformity determination.  [11-23-98]

129.  CRITERIA AND PROCEDURES - LATEST PLANNING ASSUMPTIONS:
      
      A.  The conformity determination, with respect to all other applicable criteria in Sections 130-138, must be based upon the most recent planning assumptions in force at the time of the conformity determination. The conformity determination must satisfy the requirements of  Sections 129.B-129.F.  [Rn, 20 NMAC 2.99.27.1, 11-23-98; A, 11-23-98]

      B.  Assumptions (including, but not limited to, vehicle miles traveled per capita or per household, trip generation per household, vehicle occupancy, household size, vehicle fleet mix, vehicle ownership, and the geographic distribution of population growth) 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.  [Rn, 20 NMAC 2.99.27.2, 11-23-98; A, 11-23-98]

      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.  [Rn, 20 NMAC 2.99.27.3, 11-23-98]

      D.  The conformity determination must include reasonable assumptions about transit service and increases in transit fares and road and bridge tolls over time.  [Rn, 20 NMAC 2.99.27.4, 11-23-98]

      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.  [Rn, 20 NMAC 2.99.27.5, 11-23-98; A, 11-23-98]

      F.  Key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation required by Sections 116-124. [Rn, 20 NMAC 2.99.27.6, 11-23-98; A, 11-23-98]

 130.  CRITERIA AND PROCEDURES - LATEST EMISSIONS MODEL:

      A.  The conformity determination shall 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 US EPA for use in the preparation or revision of implementation plans in the State or area is used for the conformity analysis.  Where EMFAC is the motor vehicle emissions model used in preparing or revising the SIP, new versions must be approved by US EPA before they are used in the conformity analysis.  [Rn, 20 NMAC 2.99.28.1, 11-23-98; A, 11-23-98]

      B.  US EPA will consult with US DOT to establish a grace period following the specification of any new model.  The grace period will be no less than 3 months and no more than 24 months after notice of availability is published in the Federal Register.  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 3 months, US EPA will announce the appropriate grace period in the Federal Register.  [Rn, 20 NMAC 2.99.28.2, 11-23-98]

      C.  Conformity analyses for which the emissions analysis was begun before the Federal Register notice of availability of the latest emission model, or during the grace period announced in such notice, may continue to use the previous version of the model for transportation plans and TIPs. The previous model may also be used for projects if the analysis was begun during the grace period or before the Federal Register notice of availability, provided no more than three years have passed since the draft environmental document was issued.  [Rn, 20 NMAC 2.99.28.3, 11-23-98]

131.  CRITERIA AND PROCEDURES - CONSULTATION:   Conformity determinations must be determined  according to the consultation procedures in this Part, and according to the public involvement procedures established  in compliance with 23 CFR part 450.  Until this Part is fully approved by US EPA as an implementation plan revision, the conformity determination must  be made according to the procedures in 40 CFR 93.105(a)(2) and (e).    [Rn, 20 NMAC 2.99.29, 11-23-98; A, 11-23-98]

132.  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 SIP.  [Rn, 20 NMAC 2.99.30.1, 11-23-98; A, 11-23-98]

      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 SIP, which are eligible for funding under title 23 U.S.C. or the Federal Transit Laws, consistent with schedules included in the SIP.

          2.  Nothing in the transportation plan interferes with the implementation of any TCM in the SIP.  [Rn, 20 NMAC 2.99.30.2, 11-23-98; A, 11-23-98]

      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 SIP, or, if such TCMs are behind the schedule established in the SIP, the MPO (or the NMSHTD in the absence of an MPO) and US 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 SIP 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 interferes with the implementation of any TCM in the SIP.  [Rn, 20 NMAC 2.99.30.3, 11-23-98; A, 11-23-98]

      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 SIP.  [Rn, 20 NMAC 2.99.30.4, 11-23-98]

133.  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.   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 conformity determination for the current plan or TIP is made by US DOT.  The conformity determination on a transportation plan or TIP will also lapse if conformity is not determined according to the frequency requirements of Sections 111-115.  This criterion is not required to be satisfied at the time of project approval for a TCM specifically included in the SIP, provided that all other relevant criteria of this Part are satisfied. [Rn, 20 NMAC 2.99.31, 11-23-98; A, 11-23-98]

134.  CRITERIA AND PROCEDURES - PROJECTS FROM A PLAN AND TIP:

      A.  The project must come from a conforming transportation plan and TIP. If this criterion is not satisfied, the project must satisfy all criteria in Table 1 of Section 128  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 Section 134.B and from a conforming TIP if it meets the requirements of Section 134.C .  Special provisions for TCMs in an applicable implementation plan are provided in paragraph D of this Section.  [Rn, 20 NMAC 2.99.32.1, 11-23-98; A, 11-23-98]

      B.  A project is considered to be from a conforming transportation plan if one of the following conditions apply:

          1.  For projects which are required to be identified in the transportation plan in order to satisfy Section 125, 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.  [Rn, 20 NMAC 2.99.32.2, 11-23-98; A, 11-23-98]

      C.  A project is considered to be from a conforming TIP 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 Section 148.A in order for the project to be considered to be 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.  [Rn, 20 NMAC 2.99.32.3, 11-23-98; A, 11-23-98]

      D.  TCMs.  This criterion is not required to be satisfied for TCMs specifically included in an applicable implementation plan.  [11-23-98]

 135.  CRITERIA AND PROCEDURES - LOCALIZED CO AND PM₁₀ VIOLATIONS (HOT SPOTS):

      A.  This paragraph applies at all times.   The FHWA/FTA project must not cause or contribute to any new localized CO or PM₁₀ violations or increase the frequency or severity of any existing CO or PM₁₀ violations in CO and PM₁₀ nonattainment and maintenance areas.  This criterion is satisfied if it is demonstrated that 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.  The demonstration shall be performed according to the consultation requirements of Section 120.A and the methodology requirements of Section 146. [Rn, 20 NMAC 2.99.33.1, 11-23-98; A, 11-23-98]

      B.  This paragraph applies for CO nonattainment areas as described in Section 128.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 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 Section 120.A and the methodology requirements of Section 146.   [Rn, 20 NMAC 2.99.33.3, 11-23-98; A, 11-23-98]

 136.  CRITERIA AND PROCEDURES - COMPLIANCE WITH PM₁₀ CONTROL MEASURES:   The FHWA/FTA project must comply with PM₁₀ 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 emissions from the construction activities and/or normal use and operation associated with the project) that are contained in the SIP.  [Rn, 20 NMAC 2.99.34, 11-23-98; A, 11-23-98]

 137.  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 control strategy implementation plan (or implementation plan submission).  This criterion applies as described in Sections 128.C-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.     [Rn, 20 NMAC 2.99.35.1, 11-23-98; A, 11-23-98]

      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 motor vehicle emissions budget(s), for the last year of the transportation plan's forecast period, and for any intermediate years as necessary so that the years for which consistency is demonstrated are no more than ten years apart, as follows:

          1.  Until a maintenance plan is submitted:

              a.  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

              b.  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:

              a.  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 Sections 116-124 shall
determine what must be considered in order to make such a finding;

              b.  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; and

              c.  If an approved control strategy implementation plan has established motor vehicle emissions budgets for years in the timeframe 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. [11-23-98]

      C.  Consistency with the motor vehicle emissions budget(s) must be demonstrated for each pollutant or pollutant precursor in Section 109.B (or Section 101) 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. [11-23-98]

      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 Sections 141-145 and 120.

          2.  The regional emissions analysis may be performed for any years in the timeframe of the transportation plan 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 the last year of the plan's forecast period. 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. [11-23-98]

      E.  Not in SIP and Federal requirements apply.

138.    CRITERIA AND PROCEDURES - EMISSION REDUCTIONS IN AREAS
WITHOUT MOTOR VEHICLE EMISSIONS BUDGETS:

      A.  The transportation plan, TIP, and project not from a conforming transportation plan and TIP must contribute to emissions reductions. This criterion applies as described in Sections 128.C-G. It applies to the net effect of the action (transportation plan, TIP, or project not from a conforming transportation plan and TIP) on motor vehicle emissions from the entire transportation system.  [11-23-98]

      B.  This criterion may be met in moderate and above ozone nonattainment areas that are subject to the reasonable further progress requirements of CAA section 182(b)(1) and in moderate with design value greater than 12.7 ppm and serious CO nonattainment areas if a regional emissions analysis that satisfies the requirements of Sections 141-145 and paragraphs E through H of this Section demonstrates that for each analysis year and for each of the pollutants described in paragraph D of this Section:

          1.  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

          2.  The emissions predicted in the “Action” scenario are lower than 1990 emissions by any nonzero amount.  [11-23-98]

      C.  This criterion may be met in PM10 and NO2 nonattainment areas; 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); and moderate with design value less than 12.7 ppm and below CO nonattainment areas if a regional emissions analysis that satisfies the requirements of Sections 141-145 and paragraphs E through H of this Section demonstrates that for each analysis year and for each of the pollutants described in paragraph D of this Section, one of the following requirements is met:

          1.  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; or

          2.  The emissions predicted in the “Action” scenario are not greater than baseline emissions. Baseline emissions are those estimated to have occurred during calendar year 1990, unless the conformity implementation plan revision required by 40 CFR 51.390 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.  [11-23-98]

      D.  Pollutants. The regional emissions analysis must be performed for the following pollutants:

          1.  VOC in ozone areas;

          2.  NOX in ozone areas, unless the US EPA Administrator determines that additional reductions of NOX would not contribute to attainment;

          3.  CO in CO areas;

          4.  PM10 in PM10 areas;

          5.  Transportation-related precursors of PM10 in PM10 nonattainment and maintenance areas if the US EPA Regional Administrator or the Department has made a finding that such precursor emissions from within the area are a significant contributor to the PM10 nonattainment problem and has so notified the MPO and US DOT; and

          6.  NOX in NO2 areas.  [11-23-98]

      E.  Analysis years. 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 transportation plan's forecast period must also be an analysis year.  [11-23-98]

      F.  “Baseline” scenario. The regional emissions analysis required by paragraphs B and C 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 Section 149.A and projects exempt from regional emissions analysis as listed in Section 149.B 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.  [11-23-98]

      G.  “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 Section 149.A and projects exempt from regional emissions analysis as listed in Section 149.B 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.  [11-23-98]

      H.  Projects not from a conforming transportation plan and TIP. For the regional emissions analysis required by paragraphs B and C 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.  [11-23-98]

139.  CONSEQUENCES OF CONTROL STRATEGY IMPLEMENTATION PLAN FAILURES:

      A.  Disapprovals.

          1.  If US 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.  Not in SIP and Federal requirements apply.

          3.  In disapproving a control strategy implementation plan revision, US 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.  [11-23-98]

      B.  Failure to submit and incompleteness. In areas where US EPA notifies the Department, MPO, and US DOT of the Department'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 US EPA Regional Administrator. 
 [11-23-98]

      C.  Federal implementation plans. If US EPA promulgates a Federal implementation plan that contains motor vehicle emissions budget(s) as a result of a Department failure, the conformity lapse imposed by this Section because of the Department failure is removed.  [11-23-98]

140.  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.  Not in SIP and Federal requirements apply.

          2.  There is a currently conforming transportation plan and TIP, and 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 Sections 137 and/or 138  for a project not from a conforming transportation plan and TIP).  [Rn, 20 NMAC 2.99.54, 11-23-98; A, 11-23-98]

      B.  In isolated rural nonattainment and maintenance areas subject to Section 128.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 for the portion of the statewide transportation plan and 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 Sections 137 and/or 138 for projects not from a conforming transportation plan and TIP).  [11-23-98]

141.  PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED POLLUTANT EMISSIONS - GENERAL REQUIREMENTS:

      A.  The regional emissions analysis required by Sections 137 and 138 for the transportation plan, TIP, or project not from a conforming plan and TIP shall include all regionally significant projects expected in the nonattainment or maintenance area, including 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 Sections 116 through 124. Projects which are not regionally significant are not required to be explicitly modeled, but vehicle miles traveled (VMT) from such projects shall 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.  [Rn, 20 NMAC 2.99.55.1, 11-23-98; A, 11-23-98]

      B.  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.  [Rn, 20 NMAC 2.99.55.2, 11-23-98; A, 11-23-98]

      C.  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:

          1.  The regulatory action is already adopted by the enforcing jurisdiction;

          2.  The project, program, or activity is included in the applicable implementation plan;

          3.  The control strategy implementation plan submission or maintenance plan submission that establishes the motor vehicle emissions budget (s) for the purposes of Section 137 contains a written commitment to the project, program, or activity by the agency with authority to implement it; or

          4.  US EPA has approved an opt-in to a Federally enforced program, US EPA has promulgated the program (if the control program is a Federal responsibility, such as vehicle tailpipe standards), or  the CAA requires the program without need for individual State action and without any discretionary authority for US EPA to set its stringency, delay its effective date, or not implement the program.  [Rn, 20 NMAC 2.99.55.3, 11-23-98; A, 11-23-98]

      D.  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.

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

          2.  The conformity implementation plan revision required in 40 CFR 51.390 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.  [11-23-98]

      E.  A regional emissions analysis for the purpose of satisfying the requirements of Section 138 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. [Rn, 20 NMAC 2.99.55.5, 11-23-98; A, 11-23-98]

      F.  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 Section 120 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.  [11-23-98]
 
      G.  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. [11-23-98]

142.  PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED POLLUTANT EMISSIONS -- ANALYSIS IN SERIOUS, SEVERE, AND EXTREME OZONE NONATTAINMENT AREAS AND SERIOUS CARBON MONOXIDE AREAS :  Regional emissions analyses must meet the requirements of paragraphs A through C of this Section if their metropolitan planning area contains an urbanized area population over 200,000.   [Rn, 20 NMAC 2.99.56, 11-23-98; A, 11-23-98]

      A.  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 US DOT and will be updated periodically. Agencies must discuss these modeling procedures and practices through the interagency consultation process, as required by Section 120. Network-based travel models must at a minimum satisfy the following requirements:

          1.  Network-based 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;

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

          3.  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;

          4.  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;

          5.  Zone-to-zone travel impedances  used to distribute trips between origin and destination pairs shall 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

          6.  Network-based travel models must be reasonably sensitive to changes in the time(s), cost(s), and other factors affecting travel choices. [Rn, 20 NMAC 2.99.56.1, 11-23-98; A, 11-23-98]

      B.  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.  [Rn, 20 NMAC 2.99.56.4, 11-23-98; A, 11-23-98]

      C.  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 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 Section 120.    [Rn, 20 NMAC 2.99.56.2, 11-23-98; A, 11-23-98]

143.  PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION- RELATED POLLUTANT EMISSIONS -- AREAS WHICH ARE NOT SERIOUS, SEVERE OR EXTREME OZONE NONATTAINMENT AREAS OR SERIOUS CARBON MONOXIDE AREAS:  In all areas not otherwise subject to Section 142 of this Part, regional emissions analyses must use those procedures described in Section 142 of this Part if the use of those procedures has been the previous practice of the MPO. Otherwise, areas not subject to Section 142 of this Part 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.  [Rn, 20 NMAC 2.99.57, 11-23-98; A, 11-23-98]

 144.  PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION- RELATED POLLUTANT EMISSIONS -- PM₁₀ FROM CONSTRUCTION-RELATED FUGITIVE DUST:    [Rn, 20 NMAC 2.99.59, 11-23-98]

      A.  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.  [Rn, 20 NMAC 2.99.59.1, 11-23-98]

      B.  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 SIP, and the dust-producing capacity of the proposed activities.  [Rn, 20 NMAC 2.99.59.2, 11-23-98]

145.  PROCEDURES FOR DETERMINING REGIONAL TRANSPORTATION-RELATED POLLUTANT EMISSIONS -- RELIANCE ON PREVIOUS REGIONAL EMISSIONS ANALYSIS:

      A.  The TIP may be demonstrated to satisfy the requirements of Sections 137 (“Motor vehicle emissions budget”) or 138 (“Emission reductions in areas without motor vehicle emissions budgets”) without new regional emissions analysis if the regional emissions analysis already performed for the plan also applies to the TIP. This requires a demonstration that:

          1.  The TIP contains all projects which must be started in the TIP's timeframe in order to achieve the highway and transit system envisioned by the transportation plan;

          2.  All 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 regional emissions at the time of the transportation plan's conformity
determination; and

          3.  The design concept and scope of each regionally significant project in the TIP is not significantly different from that described in the transportation plan.  [11-23-98]

      B.  A project which is not from a conforming transportation plan and a conforming TIP may be demonstrated to satisfy the requirements of Sections 137 or 138 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, and if the project is either:

          1.  Not regionally significant; or

          2.  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.  [11-23-98]

146.  PROCEDURES FOR DETERMINING LOCALIZED CO AND PM₁₀ CONCENTRATIONS (HOT-SPOT ANALYSIS):

      A.  CO Hot-spot Analysis.   

          1.  The demonstrations required by Section 135 shall 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 Sections 116-124 and approved by the EPA Region 6 Administrator are used :

              a.  For projects in or affecting locations, areas, or categories of sites which are identified in the SIP as sites of violation or possible violation;

              b.  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;

              c.  For any project affecting one or more of the intersections which the SIP identifies as the top three intersections in the nonattainment or maintenance area based on the highest traffic volumes; and

              d.  For any project affecting one or more of the intersections which the SIP identifies as the top three intersections in the nonattainment or maintenance area based on the worst level of service.   [Rn, 20 NMAC 2.99.60.1, 11-23-98; A, 11-23-98]

          2.  In cases other than those described in paragraph A.1 of this Section (146.A.1 ), the demonstrations required by Section 135 may be based on either:   

              a.  Quantitative methods that represent reasonable and common professional practice; or

              b.  A qualitative consideration of local factors, if this can provide a clear demonstration that the requirements of Section 135 are met. [Rn, 20 NMAC 2.99.60.2, 11-23-98; A, 11-23-98]
      
      B.  PM₁₀ Hot-spot Analysis.

          1.  The hot-spot demonstration required by Section 135 shall be based on quantitative analysis methods for the following types of projects:   

              a.  Projects which are located at sites at which violations have been verified by monitoring; 

              b.  Projects which are located at sites which have vehicle and roadway emission and dispersion characteristics that are essentially identical to those of sites with verified violations (including sites near one at which a violation has been monitored); and 

              c.  New or expanded bus and rail terminals and transfer points which increase the number of diesel vehicles congregating at a single location .

          2.  Where quantitative analysis methods are not required, the demonstration required by Section 135 may be based on a qualitative consideration of local factors.

          3.  The identification of the sites described in paragraphs B.1.a and B.1.b of this Section, and other cases where quantitative methods are appropriate, shall be determined through the interagency consultation process required in Sections 116-124.  US DOT may choose to make a categorical conformity determination on bus and rail terminals or transfer points based on appropriate modeling of various terminal sizes, configurations, and activity levels. 

          4.  The requirements of this Section (146.B) for quantitative analysis will not take effect until EPA releases modeling guidance on this subject and announces in the Federal Register that these requirements are in effect.  [Rn, 20 NMAC 2.99.60.4, 11-23-98; A, 11-23-98]

      C.  General Requirements.

          1.  Estimated pollutant concentrations shall 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 shall be estimated and analyzed at appropriate receptor locations in the area substantially affected by the project.  [11-23-98]

          2.  Hot-spot analyses shall 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.  [11-23-98]

          3.  Hot-spot analysis assumptions shall be consistent with those in the regional emissions analysis for those inputs which are required for both analyses.  [Rn, 20 NMAC 2.99.60.5, 11-23-98]

          4.  PM₁₀ or CO mitigation or control measures shall be assumed in the hot-spot analysis only where there are written commitments from the project sponsor or operator to  implement such measures, as required by Section 148.A .  [Rn, 20 NMAC 2.99.60.6, 11-23-98; A, 11-23-98]

          5.  CO and PM₁₀ 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.  [Rn, 20 NMAC 2.99.60.7, 11-23-98]

 147.  USING THE MOTOR VEHICLE EMISSIONS BUDGET IN THE SIP (OR IMPLEMENTATION PLAN SUBMISSION):

      A.  In interpreting an SIP (or implementation plan submission) with respect to its motor vehicle emissions budget(s), the MPO (or the NMSHTD in the absence of an MPO) and the US 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 (or the NMSHTD in the absence of an MPO), and the US DOT, in the emission budget for conformity purposes, neither the MPO (or the NMSHTD in the absence of an MPO) nor US DOT may interpret the budget to be higher than the implementation plan's estimate of future emissions.  This applies in particular to SIPs (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.   Either 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.  [Rn, 20 NMAC 2.99.61.1, 11-23-98; A, 11-23-98]

      B.  Not in SIP and Federal requirements apply.

      C.  A conformity demonstration shall not trade emissions among budgets which the SIP (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.  [Rn, 20 NMAC 2.99.61.3, 11-23-98; A, 11-23-98]

      D.  If the applicable SIP (or implementation plan submission) estimates future emissions by geographic subarea of the nonattainment area, the MPO (or the NMSHTD in the absence of an MPO), and the US DOT are not required to consider this to establish subarea budgets, unless the SIP (or implementation plan submission) explicitly indicates an intent to create such subarea budgets for the purposes of conformity.  [Rn, 20 NMAC 2.99.61.4, 11-23-98]

      E.  If a nonattainment area includes more than one MPO, the applicable SIP may establish motor vehicle emissions budgets for each MPO. Otherwise, the MPOs shall collectively make a conformity determination for the entire nonattainment area. [Rn, 20 NMAC 2.99.61.5, 11-23-98]

 148.  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 PM₁₀ or CO impacts. Before a conformity determination is made, written contractual 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 included in the project design concept and scope which is used in the regional emissions analysis required by Sections 137 and 138 or used in the project-level hot-spot analysis required by Section 135.  [Rn, 20 NMAC 2.99.62.1, 11-23-98; A, 11-23-98]

      B.  Project sponsors voluntarily committing to mitigation measures to facilitate positive conformity determinations shall provide written contractual commitments and must comply with the obligations of such commitments.  [Rn, 20 NMAC 2.99.62.2, 11-23-98]
      C.  Written contractual commitments to mitigation or control measures shall be obtained prior to a positive conformity determination, and project sponsors must comply with such commitments.  [Rn, 20 NMAC 2.99.62.3, 11-23-98]

      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 Sections 135, emission budget requirements of 137, and emission reduction requirements of 138 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under Sections 116-124.  The MPO (or the NMSHTD in the absence of an MPO) and US DOT must find  that the transportation plan and TIP still satisfy the applicable requirements of Sections 137-138 and that the project still satisfies the requirements of Section 135 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 Section 124 for conformity determinations for projects.  [Rn, 20 NMAC 2.99.62.4, 11-23-98; A, 11-23-98]

149.  EXEMPTIONS:

      A.  Exempt projects:  Notwithstanding the other requirements of this Part, 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 (e.g. the Department, see Section 120.C, the US 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.  The NMSHTD and the MPO, in consultation with the Department, as appropriate, must assure that exempt projects do not interfere with TCM implementation.  Table 2 follows:

Table 2.   Exempt Projects

           Safety

      Railroad/highway crossing
      Hazard elimination program
      Safer non-Federal-aid system roads
      Shoulder improvements
      Increasing sight distance
      Safety improvement program
      Traffic control devices and operating assistance other than signalization projects
      Railroad/highway crossing warning devices
      Guardrails, median barriers, crash cushions
      Pavement resurfacing or rehabilitation
      Pavement marking demonstration
      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 (In PM₁₀ nonattainment or maintenance areas, only if projects are in compliance with control measures in the SIP.) 
      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 (In PM₁₀ nonattainment or maintenance areas, such projects are exempt only if projects are in compliance with control measures in the SIP.)
      Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR 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.; or
           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 712 .204(d))
      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.   [Rn, 20 NMAC 2.99.63.1, 11-23-98; A, 11-23-98]

      B.   Projects exempt from regional emissions analyses:  Notwithstanding the other requirements of this Part, 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 or PM₁₀ concentrations must be considered to determine if a hot-spot analysis is required prior to making a project-level conformity determination.  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 (e.g. the Department, see Section 120.C ), the US 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

      [Rn, 20 NMAC 2.99.63.2, 11-23-98; A, 11-23-98]

150.  TRAFFIC SIGNAL SYNCHRONIZATION PROJECTS: Traffic signal synchronization projects may be approved, funded, and implemented without satisfying the requirements of this Part.  However, all subsequent regional emissions analyses required by Sections 137 and 138 for transportation plans, TIPs, or projects not from a conforming plan and TIP must include such regionally significant traffic signal synchronization projects.  [11-23-98]

151.  SAVINGS PROVISION:  The Federal conformity rules under 40 CFR part 93 subpart A, in addition to any existing applicable State requirements, establish the conformity criteria and procedures necessary to meet the requirements of CAA §176(c) until such time as this conformity implementation plan revision is approved by EPA.  Following EPA approval of this revision to the SIP (or a portion thereof), the approved (or approved portion of the) Department's criteria and procedures would govern conformity determinations and the Federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, if any, of the Department's conformity provisions that is not approved by EPA.  In addition, any previously applicable SIP requirements relating to conformity remain enforceable until the Department revises its SIP to specifically remove them and that revision is approved by EPA.  [Rn, 20 NMAC 2.99.65, 11-23-98]

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