(a) Purpose. The purpose of this section is to implement certain requirements set forth in 40 Code of Federal Regulations (CFR) Part 93, Subpart A (relating to Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded, or Approved Under Title 23 United States Code (USC) or the Federal Transit Laws), which are the regulations developed by the United States Environmental Protection Agency (EPA) under the Federal Clean Air Act Amendments of 1990, §176(c)(4)(e). This section addresses the consultation process and the written commitment requirements for control measures and mitigation measures that are used to demonstrate and assure conformity of transportation planning activities with the state implementation plan (SIP).
(b) Applicability. This section applies to transportation-related criteria pollutants for which an area is designated nonattainment or is subject to a maintenance plan. The transportation-related criteria pollutants are ozone, carbon monoxide, nitrogen dioxide, particles with an aerodynamic diameter of ten micrometers (PM 10 ) and smaller, and particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers (PM 2.5 ). This section also applies to the precursors of ozone, nitrogen dioxide, PM10 , and PM2.5 as required in 40 CFR §93.102.
(c) CFR incorporation. The written commitment requirements as specified in 40 CFR §93.122(a)(4)(ii) and §93.125(c) are adopted by reference.
(d) Consultation. Under 40 CFR §93.105, regarding consultation, the following procedures must be undertaken in nonattainment and maintenance areas before making conformity determinations and before adopting applicable SIP revisions.
  (1) General factors.
    (A) For the purposes of this subsection, concerning consultation, the affected agencies include:
      (i) EPA;
      (ii) Federal Highway Administration (FHWA);
      (iii) Federal Transit Administration (FTA);
      (iv) Texas Department of Transportation (TxDOT);
      (v) metropolitan planning organizations (MPOs) in nonattainment or maintenance areas;
      (vi) local publicly owned transit services in nonattainment or maintenance areas (the designated recipient of FTA §5307 funds);
      (vii) Texas Commission on Environmental Quality (commission);
      (viii) local air quality agencies in nonattainment or maintenance areas (recipients of 42 USC, §7405 funds).
    (B) All correspondence with the affected agencies in subparagraph (A) of this paragraph must be addressed to the following designated points of contact:
      (i) MPO: executive director or designee;
      (ii) commission: executive director or designee;
      (iii) TxDOT: director of Transportation Planning and Programming or designee;
      (iv) TxDOT: director of Environmental Affairs Division or designee;
      (v) FHWA: administrator of Texas Division or designee;
      (vi) FTA: director of Office of Program Development or designee - FTA Region 6;
      (vii) EPA: regional administrator or designee - EPA Region 6;
      (viii) TxDOT District: district engineer or designee;
      (ix) local publicly owned transit services (the designated recipient of FTA §5307 funds): general manager or designee;
      (x) local air quality agencies (recipients of 42 USC, §7405 funds): director or designee; and
      (xi) commission regions in nonattainment or maintenance areas: regional director or designee.
  (2) Roles and responsibilities of affected agencies.
    (A) The MPO, in cooperation with TxDOT and publicly owned transit services, shall consult with the agencies in paragraph (1)(A) of this subsection in the development of Metropolitan Transportation Plans (MTPs), Transportation Improvement Programs (TIPs), projects, technical analyses, travel demand or other modeling, and data collection. Specifically, the MPOs shall:
      (i) allow the commission's executive director or a designated representative, to be a voting member of technical committees on surface transportation and air quality in each nonattainment and maintenance area in order to consult directly with the particular committee during the development of the transportation plans, programs, and projects;
      (ii) send information on time and location, an agenda, and supporting materials (including preliminary versions of MTPs and TIPs) for all regularly scheduled meetings on surface transportation or air quality to each of the contacts specified in paragraph (1)(B) of this subsection. This information must be provided in accordance with the locally adopted public participation process as required in 23 CFR Part 450;
      (iii) after preparation of final draft versions of MTPs and TIPs, and before adoption and approval by the affected governing body, ensure that the contacts specified in paragraph (1)(B) of this subsection receive a copy, and that they are included in the local area's public participation process as required in 23 CFR Part 450. Upon approval of MTPs and TIPs, MPOs shall distribute final approved copies of the documents to the contacts specified in paragraph (1)(B) of this subsection;
      (iv) for the purposes of regional emissions analysis, initiate a consultation process with the affected agencies specified in paragraph (1)(A) of this subsection during the development stage of new or revised MTPs and TIPs to determine which transportation projects should be considered regionally significant and which projects should be considered to have a significant change in design concept and scope from the effective MTP and TIP. Regionally significant projects will include, at a minimum, all facilities classified as principal arterial or higher, or fixed guideway systems or extensions that offer an alternative to regional highway travel. Also, these include minor arterials included in the travel demand modeling process that serve significant interregional and intraregional travel, and connect rural population centers not already served by a principal arterial, or connect with intermodal transportation terminals not already served by a principal arterial. A significant change in design concept and scope is defined as a revision of a project in the MTP or TIP that would significantly affect model speeds, vehicle miles traveled, or network connections. In addition to new facilities, examples include changes in the number of through lanes or length of project (more than one mile), access control, addition of major intermodal terminal facilities (such as new international bridges, park-and-ride lots, and transfer terminals), addition/deletion of interchanges, or changing between free and toll facilities. When a significant change in the design and scope of a project is proposed, the MPO shall document the rationale for the change and give the affected agencies specified in paragraph (1)(A) of this subsection a 30-day opportunity to comment on the rationale. The MPO shall consider the views of each agency that comments, and respond in writing before any final action on these issues. If the MPO receives no comments within 30 days, the MPO may assume concurrence by the agencies specified in paragraph (1)(A) of this subsection;
      (v) include in the TIP a list of projects exempted from the requirements of a conformity determination under 40 CFR §93.126 and §93.127. The MPO shall consult with the affected agencies specified in paragraph (1)(A) of this subsection in determining if a project on the list has potentially adverse emissions for any reason, including whether or not the exempt project will interfere with implementation of an adopted transportation control measure (TCM). The MPO shall respond in writing to all comments within 30 days on final MTP and TIP documents. In addition, if no comments are received as part of the subsequent public participation process for the TIP, the MPO may proceed with implementation of the exempt project;
      (vi) notify the affected agencies specified in paragraph (1)(A) of this subsection in writing of any MTP or TIP revisions or amendments that add or delete the exempt projects identified in 40 CFR §93.126;
      (vii) before adoption of any new or substantially different methods or assumptions used in the hot spot or regional emissions analysis, provide an opportunity for the agencies specified in paragraph (1)(A) of this subsection to review and comment;
      (viii) in coordination with TxDOT and the local transit agencies, disclose all known, regionally significant, non-federal projects, even if the sponsor has not made a final decision on its implementation; include all disclosed, or otherwise known, regionally significant, non-federal projects in the regional emissions analysis for the nonattainment area; respond in writing to any comments that known plans for a regionally significant, non-federal project have not been properly reflected in the regional emissions analysis; and have recipients of federal funds determine annually that their regionally significant, non-federal projects are included in a conforming MTP or TIP, or are included in a regional emissions Cont'd...