62188 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 51 and 93

[FRL-4804-3]

Criteria and Procedures for Determining Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Funded orApproved Under Title 23 U.S.C. orthe Federal Transit Act

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

SUMMARY: This action establishes the criteria and procedures for determining that transportation plans, programs, and projects which are funded or approved under title 23 U.S.C. or the Federal Transit Act conform with State or Federal air quality implementation plans. This action isrequired under section 176(c)(4) ofthe Clean Air Act, as amended in 1990.

Conformity to an implementation plan is defined in the Clean Air Act as conformity to an implementation plan's purpose ofeliminating orreducing the severity andnumber ofviolations ofthe national ambient air quality standards and achieving expeditious attainment of such standards. In addition, Federal activities maynot cause orcontribute to

new violations of air quality standards, exacerbate existing violations, or interfere with timely attainment or required interim emission reductions towards attainment. This final rule establishes the process by which the Federal Highway Administration and the Federal Transit Administration of the United States Department of Transportation and metropolitan planning organizations determine conformity ofhighway and transit projects.

EFFECTIVE DATE: This final rule is effective on December 27, 1993. ADDRESSES: Materials relevant to this rulemaking are contained in Docket No. A-92-21. The docket is located inroom M-1500 Waterside Mall (ground floor)
atthe Environmental Protection Agency, Attention: Docket No. A-92-21, 401 M Street SW., Washington, DC 20460. The docket may be inspected from 8:30 a.m. to 12 p.m. and from 1:30p.m. to 3:30 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Kathryn Sergeant, Emission Control Strategies Branch, Emission Planning and Strategies Division, U.S. Environmental Protection Agency, 2565 Plymouth Road, AnnArbor, MI 48105. (313) 741-7884.
SUPPLEMENTARY INFORMATION: The contents ofthis preamble are listed in the following outline:

I.Authority II.Summary ofthe Final Rule III. Background ofthe Final Rule

A. History ofConformity B. Conformity Under the Clean Air Act As

Amended in 1990 C. Interim EPA/DOT Conformity Guidance D. Public Participation E. Conformity ofGeneral Federal Actions IV. Discussion ofMajor Issues

A. Attainment Areas 1. EPA's Position 2. Supplemental Notice ofProposed

Rulemaking B. Interim Period 1. Background 2. Phase II ofthe Interim Period 3. Transitional Period 4. Control Strategy SIP Revisions EPA

Finds State Failed to Submit, Finds Incomplete, or Disapproves 5. Future SIP Revisions C.Emissions Budgets 1. What Is a Motor Vehicle Emissions

Budget? 2. Emissions Budget Test 3. Locating the Motor Vehicle Emissions

Budget in the SIP 4. Revisions to the Emissions Budget 5. Subregional Emissions Budgets 6. Requirements For a SIP Control Strategy

to Meet the Budgets D. NO2 and PM-10 in the Interim Period E. NOx Reductions in Ozone Areas in the

Interim Period F. Transportation Control Measures (TCMs) 1. Demonstration ofTimely

Implementation 2. SIP Revisions Due to TCM Delays 3. Retrospective Analysis ofTCMs 4. TCMs in the Absence ofa Conforming

Transportation Plan and Transportation Improvement Program (TIP) G. Enforceability H. Time Limit on Project-Level

Determinations I. Interagency Consultation 1. Minimum Standards 2. Consequences ofFailure to Follow

Consultation Procedures 3. Role ofState Air Agencies in Conformity

Determinations 4. EPA Role in Conformity Determinations 5. Interagency Consultation Requirements

in DOT's Metropolitan Planning Regulations J.Frequency ofConformity Determinations 1. Grace Periods FollowingTriggers for

Redetermination 2. TIPAmendments 3. SIP Revisions as Triggers 4. Additional Triggers 5. Lapsing ofTransportation Plan and TIP

Conformity Determinations K. Fiscal Constraint L. Non-federal Projects 1. Requirements for Adoption orApproval

ofProjects By Recipients ofFunds Designated Under Title 23 U.S.C. orthe Federal Transit Act 2. Disclosure and Consultation Requirements for Non-Federal Projects 3. Response to Comments V. Discussion ofComments

A. Applicability 1.Incomplete Data, Transitional, and "Not

Classified" Areas 2. Length ofthe Maintenance Period 3.Statewide Transportation Plans and

Statewide Transportation Improvement Programs (STIPs) 4. OtherTransportation Modes 5.Highway and Transit Operational

Actions 6.Multiple Stage Projects 7.Project-level Determinations 8.Projects Which Are Not From a

Conforming Transportation Plan and TIP 9. Multiple Nonattainment Areas and

MPOs B.Applicable Implementation Plans C.Conformity SIPRevisions D. Public Participation E. Plan Content 1. Plan Specificity 2. Timeframe ofthe Transportation Plan F. Relationship ofPlan and TIP Conformity

With the National Environmental Policy Act (NEPA) Process G.Latest Planning Assumptions H. Latest Emissions Model I.TCMs J.Regional Emissions Analysis 1.Regionally Significant Projects 2. Projects Included in the Regional

Emissions Analysis 3. Modeling Procedures 4. Build/no-build Test K.Hot-spot Criteria and Analysis L Exempt Projects VI. Environmental and Health Benefits VII. Economic Impact VIII. Administrative Requirements

A. Administrative Designation B.Reporting and Recordkeeping

Requirements C. Regulatory Flexibility Act

I. Authority

Authority forthe actions taken in this notice is granted to EPA and DOT by section 176(c) ofthe Clean AirAct as amended (42U.S.C. 7521(a)).

H. Summary of the Final Rule

This rule requires metropolitan planning organizations (MPOs)and the United States Department of Transportation (DOT)to make conformity determinations on metropolitan transportation plans and transportation improvement programs (TIPs)before they are adopted, approved, or accepted. In addition, highway or transit projects which are funded or approved by the Federal Highway Administration (FHWA) or the Federal Transit Administration (FTA)

mustbe found to conform before they

are approved or funded by DOT or an MPO.

This rule applies to nonattainment and maintenance areas. EPA will issue

a supplementary notice of proposed

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rulemaking to propose criteria and procedures for determining conformity in attainment areas.

The provisions ofthis rule apply with respect to those transportation-related pollutants for which an area is designated nonattainment or is subject
to a maintenance plan approved under Clean AirAct section 175A (i.e., ozone. carbon monoxide (CO), nitrogen dioxide (NO2 ), and particles with an aerodynamic diameter of less than or equal to a nominal 10 micrometers (PM10)). The provisions ofthis rule also apply with respect to the following
precursors ofthose pollutants: volatile organic compounds (VOC) and oxides of nitrogen (NOx) in ozone areas, NOx in NO 2 areas, and VOC and NOx in PM10 areas.

This rule requires States to submit to EPA revisions to their State implementation plans (SIPs) establishing conformity criteria and procedures consistent with this rule by November 25, 1994. However, the requirements ofthis rule apply as a matter of Federal law beginning December 27, 1993. All conformity determinations made after this date
must be made according to the requirements ofthis rule and, after the conformity SIP revision is approved by EPA, according to the requirements of the applicable SIP.

The criteria and procedures in this rule differ according to the pollutant for which an area is designated nonattainment ormaintenance, and according to the type ofaction (i.e., transportation plan, TIP, project from a conforming transportation plan and TIP,

or project not from a conforming transportation plan and TIP). The rule requires regional emissions analysis of transportation plans and TIPs. All regionally significant highway and transit projects, regardless offunding
source, must either come from a conforming transportation plan and TIP, have been included in the regional emissions analysis ofthe plan and TIP which supports the plan or TIP's adoption, or beincluded in a newly performed regional analysis. Transportation projects funded or approved by FHWA orFTA must also be analyzed for their localized air quality impacts in PM-10 and CO nonattainment areas.

The criteria and procedures also vary according to the period oftime in which the conformity determination is made. Transportation plans, TIPs, and projects
must satisfy different criteria depending

on whether a State has submitted a SIP revision which establishes control strategies to demonstrate reasonable further progress and attainment. Criteria and procedures also vary depending on whether the SIPrevision has been submitted, approved, disapproved, or the Clean Air Act deadline for submission ofthe SIP revision hasbeen missed.

The final rule is being placed in both 40 CFR part 51 and 40 CFR part 93. Part 93 applies to Federal agencies immediately, and part 51 establishes requirements for States in submitting SIPs. The requirements ofthe rule are the same in both parts, except that the rule does not require aconformity SIP revision in part 93.

The final rule has a variety of minor changes from the proposal based on comments received regarding specific details of the regulatory text. In addition, several majorchanges have been made in response to public
comment. These include changes to the criteria and procedures during the interim period and specific requirements for regionally significant "non-federal" projects (thosenot requiring FHWA orFTA funding or approval). The reader is referred to the Discussion of MajorIssues and Discussion of Comments sections for details on these and other issues.

III. Background ofthe Final Rule

A. HistoryofConformity

Conformity provisions first appeared in the Clean Air Act Amendments of 1977 (Pub.L. 95-95). Although these provisions did not define conformity, they provided that no Federal department "shall: (1)engage in, (2) support in any way orprovide financial assistance for, (3)license orpermit, or (4) approve any activity which does not conform to a [State implementation plan] after it has been approved or promulgated." Assurance ofconformity

was an affirmative responsibility ofthe head ofeach Federal agency. In addition, no MPO could approve any transportation project, program, or plan which did notconform to aState or Federal implementation plan.

Following enactment ofthe 1977 Amendments, DOT consulted with EPA
to develop conformity procedures for
programs administered by FHWA and the UrbanMass Transportation Administration (now FTA). The June 14, 1978 "Memorandum ofUnderstanding Regarding Integration ofTransportation and Air Quality Planning" provided EPA an opportunity tojointly review and comment on the conformity of transportation plans and TIPs.

In April 1980, EPA published an advance notice ofproposed rulemaking

on conformity (45 FR 21590, April 1, 1980). EPA maintained that the Congressional intent ofClean Air Act section 176(c) was to prevent Federal actions from causing a delay in the attainment ormaintenance ofthe NAAQS. However, no further rulemaking action was taken.

In June 1980 EPA and DOTjointly issued a guidance document entitled "Procedures for Conformance of Transportation Plans, Programs and Projects with Clean Air Act State Implementation Plans." This guidance established that in nonattainment and maintenance areas (areas experiencing violations ofthe national ambient air quality standards (NAAQS) and required to develop air quality maintenance plans under 40 CFR part 51, subpart D), conformity determinations must be documented as

a necessary element of all certifications, TIP reviews, and environmental impact

statement findings. It was necessary to make certifications that the planning
process had been conducted according

to a continuous, cooperative, and comprehensive transportation planning
process and consistent with Clean Air Act requirements.

Transportation plans and programs

were considered to conform with the SIP ifthey did not adversely affect the transportation control measures (TCMs) in the SIP, and ifthey contributed to reasonable progress in implementing those TCMs. A transportation project would conform ifit were a TCM from the SIP, came from a conforming TIP, or did not adversely affect the TCMs in the SIP.

Subsequently, DOT developed and issued an interim final rule (46 FR 8426, January 26, 1981) based upon the joint guidance. DOT established this rule to
meet its obligations under section 176(c) of the Clean Air Act, and the rule was put into effect immediately upon publication. It amended 23 CFRpart 770 (FHWA Air Quality Guidelines) and added 49 CFR part 623 (UMTA Air Quality Conformity and Priority Procedures).

The rule used the joint guidance's definition ofconformity, interpreting conformity in the context ofTCMs rather than emissions budgets or air quality analysis. Compliance with the conformity requirements was to be demonstrated as part ofthe planning and National Environmental Policy Act (NEPA) processes.

B. Conformity Underthe CleanAirAct As Amended in 1990

In addition to adding specific provisions regarding the conformity of transportation actions, the Clean Air Act Amendments of1990 expand the scope and content ofthe conformity

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provisions by,defining conform-ty to an implementation plan tomean

Conformity to- theplan's purpose of eliminating or reducing the severity and number ofviolations ofthe national ambient airquality standards and achieving expeditious ttahsment ofsuch,standards; and that suckactivities wi1-not i1 cause or contribute to any new violation ofany standards in any area; (ii) increase the frequency or severity ofany existing violationofany standard in,any area; or (iii) delay timely attainment ofany standard or any requiredinterim emission reductions-or other milestones in any area.

The Clean AirAct Amendments of 1990 emphasize reconcilingthe estimates of emissions from transportation plans and.programs,with the implementation plan,,rather than simply providing for the implementation ofTCMs.,This integration of transportation and air quality planning is intended to protect the integrity ofthe implementation plan by ensuring that its growth projections

are not exceeded without additional

measures to counterbalance the excess growth, that progress targets are achieved, and that air quality maintenance efforts arenot undermined.

C.InterimEPA/DOTConformity Guidance

On June,7, 1991,,EPA and DOT jointly issued guidance fordetermining conformity oftransportation plans, programs, and projects during the period before the final rule is promulgated. This guidance was based

on the interim conformity requirements in section 176(c)(3}1 ofthe CAA This rule will supersede the June.7, 1991, interim guidance,on.its, effective date.

D. PublicParticipation

The Notice of Proposed Rulemaking (NPRM) for thisrule waspublished in. the Federal Register on January 11, 1993 (58 FR 37681 as a proposed amendment to 40 CFR part 51. AMarch 15, 1993 Fderal,Register notice proposed the January 11 requirements for 40 CFR part 93.,The comment period lasted from January 11 until March 12, 1993, and was subsequently reopened from March 15until May 1, 1993, in order to allow comment in the context ofthe NPRM for conformity ofgeneral Federal actions (see next section). Over 300 written comments were received, includilgcomments from Governors, State air agencies, StateDOTs, MPOs and other local transportation agencies, local,airagencies, the associations,of these agencies, environmental interest
groups, highway interest groups, and private citizens. Copies of-the comments in their entirety can,be obtained from the docket for this- rule (see ADDRESSES). The docket also includes acomplete Response to Comments document for this rule.

Three public hearings were held on thetransportation conformity NPRM during the public comment period. In addition, opportunity to comment on the transportation conformity NPRM

was provided atthe public hearing for the NPRM onconformity ofgeneral Federal actions.

E. ConformityofGenera!Federal Actions

Section 176(c) ofthe Clean Air Act applies to all departments, agencies, and instrumentalities ofthe Federal government. This rule applies only to the conformity of transportation plans,
programs, and projects developed, funded, or approved under title 23 U.S.C. or the Federal Transit Act. Criteria and procedures for determining the conformity ofallother Federal actions ("general conformity"),. including highway and transit projects which require funding or approval from

a Federal agency other than FHWA or FTA, are promulgated ina separate rule. Criteria and procedures for determining conformity ofgeneral Federal actions

were proposed in the Federal Register

on March 15,1993 (58 FR 13836).

IV. Discussion ofMajor Issues

A. AttainmentAreas

1. EPA's Position

In the NPRM

. EPA indicatedthat the
statute was ambiguous with respect to whether conformity applied only in nonattainment areas, or in attainment

areas aswell.EPA received significant public comment arguing thatthe statute )shouldberead to apply conformity also in attainment areas, based on the wording ofClean AirAct section 176(c)(11 and the policy merits ofsuch applicability. Similar comments were received arguing that conformity did not apply in attainment areas.

EPA continues tobelieve thatthe
statute.is ambiguous, and, that it provides discretionary authority to apply these transportation conformity procedures to both attainment and nonattainment areas. EPA plans to carry out a separate rulemaking proposing to apply transportation conformity procedures to certain attainment areas EPA sees strong policyreasons not to apply confority in all attainment

areas, given the significant burden associated with making conformity determinations relative to the riskof NAAQS violations:in clean areas. Thus EPA believes that it would be reasonable to propose,applying conformity in attainment areas for which air quality is closeto nonattainment levels, for example at 85% ofnonattainment levels (see discussion below).

EPA intends to take comment on the basic proposal toapply conformity in attainment areas. EPA will also seek
comment on the specific application of conformity in certain categories of attainment areas.

Therefore, EPA intends to. issue inthe

near future a supplemental notice of proposed rulemaking dealing with conformity requirements in attainment

areas. ITherequirements ofthis final rule will applyonly in nonattainment and maintenance areas, asproposed.

2. Supplemental Notice of Proposed Rulemaking

While EPA will solicit comments on other options, the supplemental notice ofproposed: rulemaking on transportation conformity,will propose to require conformity,determinations only in the metropolitan planning areas (the urbanized area and the contiguous area(s) likely to become urbanized within twenty years) ofattainment areas which have exceeded 85% ofthe ozone, CO.NO2,PM-i1 annual, orPM-10 24- hour NAAQS within the last three, two,
one, three, and three years, respectively. These periods are consistent with the
way areas are designated as attainment

or nonattainment. Further, the statistical form ofthe comparison to the 85% value would follow that specified for the relevant ambient standard'.

Transportation plans, TIPs,,and projects in all other areas, including all rural areas and all urbanized areas which are not subject to EPA requirements for ambient monitoring, would be exempt from the obligation to conduct transportation conformity determinations, based on the.de, minimis impact on air quality that would result from transportation activities in such areas. All attainment

areas above 85% ofthe CO or PM-IO standard in which motor vehicles-and transportation project construction.do
not contribute significantly,to ambient levels ofCO or PM-1o would als be exempt from transportation conformity requirements, for similar reasons. Because the merit ofexempting certain

1For PM-O.the areas which would be addressed: in the supplemental notice are designated "unclassifiable.' TheClean AirActAmendments of 1990 designated areasmeeting certain qualifications

as nonattainment for PM-10,by operation of redesignated to nonattainment, and for nonattainment areas tobe redesignated to attainment.This rule refers to areas redesignated to attainment as"maintenance areas."

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areas from conformity requirements will
vary depending on the activities being regulated, the general conformity rule
may propose different exemptions for applicability ofconformity requirements in attainment areas than those for transportation conformity.

EPA intends to propose flexible, lowresource procedures and criteria for the attainment areas subject to the conformity requirements to demonstrate the conformity oftransportation plans, TIPs, andprojects.

B.Interim Period

1.Background

As discussed inthe NPRM, there exists an "interim period" which lasts untilEPA approves SIPswith control strategies demonstrating attainment and reasonable further progress, or maintenance. Once these control strategy SIPs are approved, conformity ofplans and TIPs shall be demonstrated by comparing the emissions expected from the transportation system whenthe transportation plan and TIP are implemented to the emissions "budget" established in the SIP. However, during the interim period, section 176(c)(3)(A)(iii) ofthe Clean Air Act allows positive conformity determinations where transportation plans and TIPs contribute to annual emission reductions in ozone and CO nonattainment areas.

Although the interim period discussed inthe Clean AirAct lasts only until the conformity SIP revisions are approved, EPA is extending the interim requirements until the control strategy SIPs are submitted, because it would be impossible to apply the emissions budget test prior to that time. EPA is also establishing interim criteria inPM10 and NO2 nonattainment areas because Clean AirAct section 176(c)(1)(ii) clearly refers to the Federal activity avoiding increases inthe frequency orseverity ofany standard. Interim criteria for PM-10 and NO2
areas arediscussed in section IV.D. of this preamble. EPA sees no way to ensure that activities will notcontribute
to violations short of requiring reductions in emissions.

For ozone and CO areas, the NPRM proposed a "build/no-build" test which requires a regional emissions analysis to demonstrate that the emissions from the transportation system infuture years, if itincluded the proposed action and all other expected regionally significant projects, would beless than the emissions from the current transportation system in future years.

EPA received substantial public
comment on the adequacy ofthe "build/ no-build test" as ademonstration of contribution to annual emission reductions. In particular, conformity determinations being made according to this test are showing insignificant emission reductions, which commenters claim are not consistent with the need
to achieve reasonable further progress as necessary to attain, asrequired by sections 182(b)(1) and 187(a)(7) and referenced by section 176(c)(3)[A)(iii) of the Clean Air Act. In addition, EPA itselfexpressed concern in the NPRM's preamble that there might be long delays before emissions budgets are approved.

2. Phase H1 ofthe Interim Period
Phase Iofthe interim period, which ends December 27, 1993, was covered by the EPA/DOT joint guidance ofJune 7, 1991. The final rule defines Phase U ofthe interim period as beginning on December 27, 1993.

The final rule retains the criteria which the NPRM proposed forPhase II ofthe interim period. Inparticular, regional analysis oftransportation plans and TIPs in ozone and CO areaswill have to satisfy the build/no-build test proposed in the NPRM and demonstrate emissions reductions from 1990 levels. EPA continues to believe, as stated in the NPRM preamble, that it is not appropriate forEPA to require specific annual emissions reductions before they have been established by the State in the reasonable further progress and attainment demonstrations ("control strategy SIP revisions"). EPA believes the States should be allowed to decide how much reduction to require from
motorvehicles and how much to require from stationary sources. Commenters also expressed substantial support for this approach.

However, in orderto achieve emission reductions that are more consistent with the SIP's emission reduction targets as

soon as possible, EPA is ending Phase 11 with either the submission ofthe control strategy SIP revision or the Clean Air Act deadline for submission ofthe control strategy SIPrevision, whichever is earlier. In contrast, the NPRM proposed that Phase II would last until approval ofthe control strategy SIP.

3. Transitional Period

When a State submits to EPA a control strategy SIP revision which has been endorsed by the Governor and subject to a public hearing, Phase 11 ends and the "transitional" period begins. The final rule defines the transitional period to be the time between submission ofthe control strategy SIP revision and EPA final action on the control strategy SIP (i.e., full approval ordisapproval).

During the transitional period, transportation plans and TIPs are required to be consistent with the emissions budget in the submitted control strategy SIP. EPA believes that

an MPOshould observe the emission budgets established by the State for its

area once the SIP has been endorsed by the Governor and submitted to EPA, rather than apply only the build/nobuild test while waiting for EPA approval ofthe budget, because of

concern about the potential length ofthe interim period and the need for reasonable further progress by 1996. EPA believes it is appropriate to require the transportation community to begin contributing its part to the motor vehicle emissions reduction plan adopted by the State immediately, even before EPA approval.

In order to ensure that the SIP emission budget does notloosen the interim requirement forcontribution to annual emission reductions while awaiting EPA approval, areas must demonstrate satisfaction ofthe build/nobuildtest in addition to consistency with the submitted emissions budget. Because it isthe "build" scenario which is compared with the emissions budget,
two separate emissions analyses are not necessary to demonstrate both the build/no-build test and consistency with the emissions budget.

Submission ofacontrol strategy SIP revision triggers a requirement forthe transportation plan and TIPto be found
to conform according to the transitional period criteria andprocedures. For control strategy SIP revisionswhich are submitted afterNovember 24, 1993, the conformity oftransportation plans and TIPsmust be determined according to the transitional period criteria within 12 months from the Clean Air Act deadline for submission. During this 12-month period, the existing plan and TIP are still valid, and projects from the existing plan and TIP may proceed, provided the NEPA process is completed and the project has been found to conform. However, ifthe transportation plan and TIPhave notbeen demonstrated to conform according to the transitional period criteria with n 12 months from the Clean Air Act deadline forcontrol strategy SIP submission, the transportation plan and TIP lapse, and

no projects may proceed except for projects which had already completed the NEPA process and had a projectlevel conformity determination; projects which are exempted by the conformity rule; and non-federal projects which are not regionally significant orwhich do
not involve recipients ofFederal funds.

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Although existing transportation plans and TIPsremain valid for 12 months following the Clean Air Act deadline, newtransportation plans and TIPs which ar approved more than 90 days following subrission ofthe control strategy SIPrevision mustbe found to conform according to transitional period criteria and procedures. During the first 90 days ollowing submission of the, (omtrol strategy SIPrevision, new transportation plans and TIPsmy be found toconform according tothePhase IIintesim period criteria andprocedures. However, the conformity status of these trnsportation plans and TIPs will lapse =a months, fromthe Clean Air Act deadline for submission ifconformity is not redetermined according to the, transitional period criteria and procedures..

The 90-dny period is intended to accommodate MPOs which areclose to. completing a long-scheduled planand TIP adoption at the timethe SIP revision is submitted, to provide DOT timeto review and concur in those (and
any pending previous) MPO actions which it mustreview, and toprovide time forall involved parties to obtain and understand the budget implications ofthe SIP revision.

The 12-month period toredetermine conformity according to the transitional period criteria and procedures is an outside limit; EPA hopes that most MPOswill revise their TIPsas necessary and redetermine conformity evenearlier than within 12 months. A date certain is provided (ratherthan startingthe 12, months.onthe date of-submission) to avoid creating an incentive fog delay of the SIP revision.

For areas which submitted a control strategy SIP revision before November 24, 1993, transportation,plans and TIPs
mustbe redetermined according to transitional period criteria and procedures by November 25. 1994. or they will lapee. Conformity determinations on new transportation plans andTIPs mustbe made accordinig
to the transitionalperiod criteria beginning February 22, 1994. New transportation plans and TIPs may be found to conform accosding to Phase 11 interim period criterialntil Febrary 22, 1994, 

### but these conformity determinations will lapse November 2.% 1994 ifthey are not redetermined according to transitional period criteria 

### and procedures.

At any timeduring the transitional periodwhen the currently conforming transportation plan and TIP have not yet been found to conform according tothe transitional period criteria and procedures, the State air agency must be consulted regading anynew regionally significant pro*ct which would increase sing ccpant vehicle capacity [a new general purpose highway on anew Wcation or adding general purpose lanes). The State air
agency mustbe consulted on how the emissions from the implementation of the currently conformingtramportation plan ard TIP (estimated in the "build" scenario in thetransportation plan and TIP's conformity deiermination)
compare: to the motorvehicl, emissions budget inthe SIP, orthe projeced motor vehicle emissions budget in the SIP under development. The State air
agency may escalate tothe Governor any unresolved disputes, as with any State air agency comments on aconformity determination.

Because SIPs must contain specific

measures to achieve thi planned emissions reductions, and in thecase of transportation theMPG should have assisted in developingthese measures, the rule'stransitional period requirements should not impose any unanticipated or impossible burden on the MPO. Infact, EPA anticipates that
many control strategy SIW will be developed from an emissions analysisof the transportation plan andTIP which

are inplace at the timeofSIP submission. Where theMPs analysis ofthe plan midTIP was usedforthe SIPsemissions projectionard there are

no projects in the SIPwhich ae not from thetransportation plan and TIP, therule states that thebM and DOT

can determine conformity ofthe transportation plan andTIP according to the transitional criteria without new emissions modeling madwithout having
to apply the criteria for currentplanning assumptionsand latest emissions models. Ifthe MPO and DOT avail themselves ofthis opion, however, the three-year limit for full redeternmination ofthepla and TIP isnotreset.

Asdescribed more completely in the
next section ofthis preamble, therule provides that a SIPsubmittal is sufficient to start the transitional period

even ifitincludes only commitments to implement some parts of the control strategy. The MPO andDOT may

assume future implementation of the committal measures when testing the transportation plan and TIP against the new budget.

A SIP containing ony commitments for some measures may occus if a State has devised a strategy fwmeeting an emission reduction orattamnment requirement ofthe Clean Air Act butit has not adopted all measures inthe strategy in an enforceable form suitable for EPA approval. Forexample, certain VOC limits for consumer products may nothave been adopted yet, or an inspection program fordiesel trucks aimed atPM-1 reductions maynot have been putin regulatory formyet. However, emission reductions forthese

measures may havebeenquantified aid included in thetotal emission reductions forthe straegy.

EPA'stolerance ofcommitted

measures when starting thetransitionel period is intended to allow the transportation community to.proceed with its part ofthe strategy wh'ile the State works to complete full adoption of the committed measures. (The State may be under a sanctions clock or even under sanctions during some or all of this period.) This respect fo commitments in SIP revisions fo conformity purposes isdistinct fromthe possibility ofEPA conditionally approving counittas undersection 1104k)4). Today's ruledoes nt prejudge EPAaction inregard to completeness or incompleteness finding, approvals, conditional approvals, partial approvals, or disapprovals of SIPrevisions..

OnceEPA has approved the control strategy SIPrevision, the transitional period ends and the control strategy period begins. Duringthe control strategy period,the regkoa test fo transportation pkms and TIPs requires only consistency with the motorvehicle emissions budget in the approved SIP. Conditional approval orapproval of specific control measures without approval ofthe SIP as &- whole as meeting the applicable Clean AirAct requirement does not terminate the transitional period. 4. Controk Strate SIP Revisions EPA Finds State Failed to Submit, FindsIncomplete, or Disapproves.

EPA believes it isreasonabIe to interpret the requirement to contribtfe
to emission reductions asdemanding

some greater contribution when the Statehas failed to establish emission budgets in a timely fashion, and as the time remaining before theattainment deadline decreases. EPAbelievesthat in the prolonged absence of a control strategy SIP which allocates the emission reductions required by the Clean AirAct among sources, allowing

no new conformity determinations aid postponing new commitments of fnds will prevent uncontrolled emissions increases by delaying projects with emissions impacts antil the State has established control strategies consistent with reasonable furtherprogress and attainment. Thiswill alsoprovide incentive for therelevant actors within the State to agree on control strategies and-emissions budgets for the SIP.

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If the control strategy SIP revision is

not submitted, no new transportation plans orTIPs may be found to conform beginning 120 days after the Clean Air Act deadline. If EPA finds the submission to be incomplete, no new transportation plans orTIPs may be found to conform beginning 120 days after the incompleteness finding. In both

cases, the conformity status ofthe existing transportation plan and TIP lapses 12 months after the date that the Clean Air Act requires submission ofthe control strategy SIP revision.

Where a control strategy SIP revision has not been submitted, no new transportation plans and TIPs may be found to conform 120 days after the Clean AirAct SIP deadline provided EPA has notified the State, MPO, and DOT that the State had failed to submit the SIP revision. EPA will strive to issue findings offailure to submit the. required SIP revision within 60 days following the Clean Air Act deadline. Such a finding starts a non-discretionary sanctions clock under section 179(b) of the Clean Air Act and EPA will so notify the State. In the case ofsuch a failure, EPA will also consider whether it is appropriate to propose and impose discretionary sanctions under section 110(m).

The conformity status ofthe transportation plan and TIP will lapse 120 days after EPA's final disapproval of the control strategy SIP revision wholly

or in part because it lacks an adequate control strategy, and no new projectlevel conformity determinations may be made. Because such disapproval will be proposed as a rulemaking action before it is final, affected parties will be provided adequate notice.

EPA has already made findings of failure to submit or failure to submit complete control strategy SIP revisions for some CO nonattainment areas and

some moderate PM-10 areas, as these revisions were due for certain areas on November 15, 1992 and November 15, 1991, respectively. The conformity

status of transportation plans and TIPs in these areas will lapse oneyear from today, i.e., November 25, 1994, if the failure has not been remedied by then and acknowledged by a letter from the EPA Regional Administrator. Also, if EPA has already disapproved or in the
next 120 days disapproves any submission that has been made, the conformity status of transportation plans and TIPs will lapse March 24, 1994. These delays are intended to give MPOs and others in these areas equitable notice ofthis rule's requirements and reasonable opportunity to adjust to them. EPA believes that the restrictions just stated following a finding that a control strategy submittal is incomplete or following disapproval ofsuch a submittal are inappropriate ifthe only

reason for these findings is that the State has not completed legislation or rulemaking to put all ofthe measures in its otherwise adequate strategy into enforceable legal forms. A State may submit a SIP revision (or may have already submitted one prior to today) to EPA which contains certain emission reduction measures in adopted rule or other legally enforceable form which are by themselves clearly inadequate to
meet the relevant emission reduction requirement of the Clean AirAct (for example, the 15 percent rate-of-progress requirement for moderate and above

ozone nonattainment areas), but accompanied by commitments to complete adoption ofadditional specifically identified measures which if implemented would bring the total emission reduction to an approvable level (according to calculations in the SIP submittal).

EPA may find such a SIP submittal incomplete and so notify the State, with

an explicit statement that EPA nevertheless considers the revision to
meet the description just given. In this

case, the transitional period would continue. The consequences described above for failure to submit or for incompleteness (limited period for further conformity determinations, lapse' ofthe plan and TIP) will not ensue on the timeframe described there. Rather, theMPO and DOT maytreat the submittal as ifit were complete and still being evaluated by EPA for substantive approvability, and continue to make conformity findings for new plans and TIPs and forprojects using transitional criteria. However, EPA is concerned that the MPO not rely-on thebudget indefinitely if the Statein fact does not complete adoption ofthe measures to which it committed or other equivalent

measures. Therefore, therule provides for the plan and TIP to lapse 12 months after the date ofthe EPA incompleteness finding, or 12 months from today in the

case ofan incompleteness finding made prior to today. This lapse will be avoided if the Stateremedies the failure and the EPA Regional Administrator recognizes that action by letter.

Ifthe conformity status ofthe transportation plan and TIP lapse, no

new project-level conformity determinations may be made until a control strategy SIP revision is submitted (thereby starting the transitional period). Also, although nonfederal projects do not require conformity determinations, recipients of Federal aid may not approve or adopt regionally significant non-federal projects in the absence ofa conforming plan and TIP (see section IV.L. of this preamble). Only projects which are exempted by the conformity rule, projects which have completed all plan, TIP, and project conformity determinations, and non-federal projects which are not regionally significant or which do not involve recipients of Federal funds may proceed.

5. Future SIP Revisions

. For many ozone nonattainment areas, post-1996 reasonable further progress demonstrations and attainment demonstrations are required to be submitted by November 15, 1994. This constitutes a deadline for a control strategy implementation plan, and the requirements described above apply

even ifthe 1996 reasonable further
progress demonstration has been submitted or approved. For example, the conformity status oftransportation plans and TIPs will lapse as described above ifStates fail to submit the post-. 1996 reasonable further progress and attainment demonstration within 120 days ofthis deadline. Similarly, the requirements ofthe transitional period will apply as described above once the post-1996 reasonable further progress and attainment demonstration is submitted.

Subsequent SIP revisions which adjust the control strategy and do not have a specific deadline established by the Clean Air Act trigger conformity redeterminations within an 18-month time period, as originally proposed in the NPRM. Thetransitional period requirements do not apply in the case of such SIP revisions.

C.EmissionsBudgets

After SIPs which demonstrate reasonable further progress and attainment are submitted, conformity determinations will involve demonstrating consistency with the SIP's motor vehicle emissions budget. Section 176(c)(2)(A) ofthe Clean Air Act specifically requires conformity determinations to show that "emissions expected from implementation ofplans and programs are consistent with estimates ofemissions from motor vehicles and necessary emission reductions contained in the applicable implementation plan." SIP demonstrations of reasonable further
progress, attainment, and maintenance contain these emissions estimates and "necessary emission reductions." The emissions budget is the mechanism EPA has identified for carrying out the demonstration of consistency.

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While other mechanisms exist to showthat Federal actions do not cause

orcontribute to a violation ofan ambient standard for a regional pollutant--such as duplication ofthe SIP's dispersion modeling for the transportation network represented by the transportation plan orTIP-the Clean Air Act specifically requires an emissions-based comparison between the transportation plan/TIP and the SIP. EPA believes that with respect to regional-scale pollutants, such a comparison also suffices as the required showing that violations will not be caused or exacerbated, since theair quality analysis in the SIP can berelied
upon to show that the SIP emission level is acceptable in this regard.

1. What Is aMotor Vehicle Emissions Budget?

Motorvehicle emissions budgets are the explicit or implicit identification of the motor vehicle-related portions ofthe projected emission inventory used to demonstrate reasonable further progress milestones, attainment, or maintenance for a particular year specified in the SIP. The motor vehicle emissions budget establishes a cap on emissions which
cannot be exceeded by predicted highway and transit vehicle emissions.

SIPs for some nonattainment areas will not have budgets because there is

no Clean AirAct requirement for a SIP revision demonstrating attainment, reasonable further progress, or annual emission reductions. The rule provides for such areas in §51.464, "Special provisions for nonattainment areas which are not required to demonstrate reasonable further progress and attainment."

Other SIPs submitted to EPA prior to today's rule which demonstrate attainment, reasonable further progress,

or annual emissions reductions do have budgets asdefined in the rule, although they may not have their emissions budgets explicitly labeled because the requirement fora comparison to an emissions budget is established in this rule and may not have been fully appreciated by the State. In such cases, the attainment ormaintenance highway and transit mobile source inventory

serves the purpose of amotor vehicle emissions budget (see "Locating the Motor Vehicle Emissions.Budget in the SIP," below). EPA's General Preamble forthe Implementation ofTitle Iofthe Clean Air ActAmendments of1990 (57 FR 13557, April 16, 1992) did indicate EPA's intent to require the use ofSIP
motor vehicle emissions budgets for conformity demonstrations. In future SIPs, explicit identification ofthe emissions budget is strongly preferred in orderto reduce misinterpretation.

The SIP necessarily defines an emissions budget for the attainment year ipn an attainment demonstration, for the maintenance period in amaintenance plan, and for certain milestone years. The SIPmay also set budgets forinterim years asnecessary to demonstrate attainment, and the SIP may explicitly provide for a NOx budget on the dates for which ozone nonattainment areas

are required to have VOC milestones.

The emissions budget applies as a ceiling on emissions in the year for which it isdefined, and for all subsequent years until another year for which a different budget is defined or until a SIP revision modifies the budget. For example, an emissions budget for a milestone year remains in effect until the next milestone year, when another emissions budget supersedes it. The attainment demonstration establishes an emissions budget for the attainment year,and that budget remains in effect until the area is redesignated and EPA approves amaintenance plan, which
may establish a different emissions budget. When a required SIP revision which should add additional budget years is late or disapproved, the conformity status ofthe transportation plan and TIP will subsequently lapse, and the existing budget ceases to apply for the purposes ofdemonstrating conformity.

The emissions budget included in the attainment demonstration may be different than that included in the maintenance demonstration since the geographic and temporal distribution of emissions may change between the two modeling efforts. Also, a State may choose to shift the balance between
motor vehicles and other sources, provided such a shift is consistent with continuing maintenance.

At the State's option, a SIP may contain an early demonstration of maintenance following the attainment date, with a different motor vehicle emissions budget in each year. In all situations, the emissions budget in the SIP must be consistent with the attainment or maintenance demonstration and any interim requirements ofthe Clean Air Act.

In general, all pollutants and associated precursors for which an area is designated nonattainment or subject
to a maintenance plan approved under Clean Air Act section 175A and which

are associated with highway and transit vehicles should be explicitly identified in the emissionbudget and included in the SIP. Conformity determinations must demonstrate consistency with the
motor vehicle emissions budget foreach pollutant and precursor identified in the SIP.

However, in some nonattainment and maintenance areas, the SIP may demonstrate that highway and transit vehicle emissions are an insignificant contributor to the nonattainment problem, for example, CO or PM-10 violations near industrial sources. For

areas with control strategy SIPs which have already been submitted and which demonstrate that motor vehicle emissions (including exhaust, evaporative, and reentrained dust emissions) are insignificant and reductions are not necessary for attainment, the conformity determination is not required to satisfy the criteria for regional emissions analysis ofthat pollutant. Ifthe control strategy SIP demonstrates that motor vehicle emissions ofa precursor are insignificant and reductions are not necessary for attainment, the conformity determination is not required to satisfy the criteria for regional emissions analysis ofthe precursor. In the future, the SIP must explicitly state that no regional emissions analysis ofa particular pollutant orprecursor is necessary for attainment, and therefore is not necessary for conformity.

All highway and transit related source categories that contribute to the nonattainment problem should be identified and included in the motor vehicle emissions budget, including exhaust, evaporative, and reentrained dust emissions (including emissions from antiskid and deicing materials, where treated as mobile source emissions by the SIP). States vary in whether they treat vehicle refueling emissions asmobile or stationary area

sources. If the SIP is silent or ambiguous

on intent regarding refueling emissions, these emissions should not be considered to be part ofthe motor vehicle emissions budget and the regional emissions estimates for a plan, TIP or project should not include them. It is more common to include refueling emissions in a non-mobile source category, and MPOs do nothave control

over refueling emissions.

2. Emissions Budget Test

A regional analysis must estimate the emissions which would result from the transportation system ifthe transportation plan and TIP were implemented, and compare these emissions to the motor vehicle emissions budget identified in the SIP. Ifthe emissions associated with the transportation plan and TIP are greater than the motor vehicle emissions budget, the transportation plan and TIP do not conform. This may occur even

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though all transportation measures in the SIPare being properly implemented; for example, ifpopulation and VMT growth are higher than predicted when the SIP was developed, motor vehicle emissionj may exceed the SIP's budget for such omissions.

Underno circumstances may motor vehicle emissions predicted in a conformity determination exceed the motor vehicle, pollutant-specific emissions budget. Ifactual emissions of pollutants are lower than their SIP emissions budgets, or if the emissions budgets themselves are lower than actually necessary to demonstrate attainment, maintenance, or other milestones, the motor vehicle emissions budget maybe increased only ifthe State submits a SIP revision which changes the various emissions budgets. Such a SIP revision must meet all applicable Clean AirAct requirements, including those ofsection 110(1). Conformity determinations may not trade emissions among SIPbudgets for pollutants, precursors, or highway/ transit versus other sources unless a SIP revision for the specific trade is submitted and approved by EPA or the SIPestablishes mechanisms for such trading.

Today's final rule requires transportation plans and TIPsto demonstrate consistency withthe SIP's motor vehicle emissions budget by performing aregional emissions analysis. This emissions analysis must include emissions from the nonattainment or maintenance area's entire existing transportation network (as described in the rule), in addition to all proposed regionally significant Federal and non-federal highway and transit projects. The regional emissions analysis mustestimate total projected emissions for certain future years (including the attainment year), and may include the effects ofanyemission control programs which are already adopted by the enforcing jurisdiction (such asvehicle inspection and maintenance programs andreformulated gasoline and diesel fuel). Inthe transitional period, the effects of emission control programs which are committed to in the submitted SIP may alsobe included.

When performing the regional emissions analysis for the purpose of the budget test, attention mustbe paid
to the season andtimeperiod for which the SIP defines the emissions budget, and the period used by the MPO and DOTto estimate regional emissions for

a plan,TIP, orproject. For example, reasonable further progress milestones for ozoneareas are defined in the Clean AirAct based on annual emissions, but EPA interprets this to mean emissions whentemperatures, congestion levels, and otherconditions are typical ofaday during the ozone season (atypical

summer weekday), multiplied by 365 days, rather thanactual annual emissions across all seasons. Further, EPAguidance in "Procedures for Emission Inventory Preparation Volume IV:Mobile Sources" (EPA450/4-81- 026d (revised), 1992) specifies a particular way to select temperature values forthe emissions estimates. Also, SIPsmay calculate emission reductions from fleetturnover using either July 1of the milestone year, or November 15 (by interpolating between the July 1and January 1outputs ofthe emissions model). The MPO and DOT should duplicate the temperature, season, and time period inputs used in the SIP when estimating future emissions for comparison to the emissions budget, or must apply appropriate adjustments to avoid any distortion in the comparison.

Where a nonattainment area contains multiple MPOs,the control strategy SIP may either allocate emissions budgets to each metropolitan planning area, orthe MPOsmust act togetherto make a conformity determination forthe nonattainment area. Ifa metropolitan planning area includes more than one airbasin ornonattainment area, a conformity determination mustbe made foreach airbasin or nonattainment area. The conformity SIP revision must establish interagency consultation procedures which address how conformity determinations willbe made in such circumstances.

3. Locating the Motor Vehicle Emissions Budget in the SIP

Existing SIPs may notall have an explicitly labeled motorvehicle emissions budget. EPA indicated inthe General Preamble to Title I ofthe Clean Air ActAmendments of 1990 that the highway and transitvehicle related emissions included in the SIP would be considered tobe the emissions budgeL Without a clearly indicated intent in the SIP otherwise, the SIP's estimate of future highway and transit emissions used in the milestone or attainment demonstration isthe motor vehicle emissions budget.

In general, the SIP will either (1) demonstrate that once the control strategies inthe SIP are implemented, emissions from all sources will be less than the identified total emissions that would be consistent with attainment. maintenance, or other required milestone; or (2) demonstrate that emissions from all sources will result in achieving attainment priorto the attainment deadline or willresult in ambient concentrations in the attainment deadline year which are lower than necessary to demonstrate attainment. In either case,the SIP demonstration.will rely on a projection ofemissions from each source category forthe attainment year, maintenance period, or other milestone year. The projection ofmotor vehicle emissions is the motor vehicle emissions budget.

Where theestimate of emissions from all sourcesis less than required to demonstrate the milestone, attainment,

or maintenance, the SIPmay explicitly quantify the "safety margin" and include some orall ofitin the motor vehicle emissions budget forpurposes ofconformity. Where the existing SIP is unclear, the State air agency and the appropriate EPA Regional Office should be consultedthrough the interagency consultation process to define the emission budget. Unless the SIP explicitly quantifies the "safety margin" and explicitly states an intent that some
orall ofthis additional amount should be available tothe MPO and DOTin the emissions budget for conformity
purposes, the MPO may not interpret the budget to be higher than the SIP's estimate offuture highway and transit emissions.

Ifthe attainment demonstration includes projections ofemissions beyond the attainment year, these projections are notconsidered emissions budgets for the purposes of transportation conformity unless the SIP explicitly states such an intent. Whbre the attainment SIP does notestablish explicit emissions budgets for years followingthe attainment year,emissions in analysis years laterthan the attainment year mustbe consistent only with the attainment year's emissions budget.

Like the attainment SIP, the maintenance plan contains a quantitative demonstration that the NAAQS can be met fora given period of time into the future. Section 175A of the Clean AirAct requires a maintenance plan to provide for maintenance fora period often years from its approval by EPA, but the Act does not specify anyparticular milestones within this period forwhich

an analysis and demonstration mustbe made. At a minimum, the SIP should establish an emissions level that will demonstrate maintenance atthe end of the ten-year period. EPA willbe releasing more specific guidance regarding conformity to budgets in maintenance plans inthe future. For

areas that have been redesignated to attainment prior tothis rule, the MPO and DOT should work with the EPA Regional Office through the interagency 1993 / Rules and Regulations 62195.

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consultation process to interpret the maintenance plan to define an emissions budget. EPA recommends amending maintenance plang to explicitly identifythe motor vehicle emissions budget. Some moderate PM-10 nonattainment

areas may have submitted SIPs which demonstrate that the area cannot attain the PM-10 standard by the applicable attainment date. These areas have been

orwill be reclassified as serious areas under section 188(b) ofthe Clean Air Act. Such SIPswhich do not demonstrate attainment do not have budgets and are not considered control strategy SIPs for the purposes of transportation conformity. Until an attainment demonstration issubmitted, these areas must satisfythe interim period criteria in orderto demonstrate conformity.

The above discussion on locating the emissions budget in the SIPassumed a simple case inwhich the geographic boundary ofthe area to which the budget applies is the same as the nonattainment area.boundary. This is the case for ozone nonattainment areas. The Clean Air Actexplicitly defines reasonable further progress requirements in terms ofthe emissions inventory for the entire nonattainment
area, and EPA believes that thebest interpretation is that the Act also means to have the attainment budget also be defined forthe nonattainment area per
se. While ozone area SIPs may contain estirhates ofcurrent and future emissions outside the nonattainment
area, these are notbudgets for purposes ofconformity (unless the State in its conformity SIP revision chooses to go beyond the requirements ofthe rule).

For

### CO, PM-10, and NO2 nonattainment areas, there are either no Clean AirAct requirements for reasonable further progress, orthe requirements are not explicitly defined interms ofthe nonattainment area inventory as a whole. Moreover, it may be possible for a SIPto demonstrate attainment forone ofthese pollutants based on an emissions and dispersion modeling domain that is either less or

more than the nonattainment area. For example, an entire county maybe designated nonattainment for CO,but the actual area of violations and the area analyzed in the SIP may be less than the entire county. CO, PM-10, and NO2 modeling may also in some cases extend beyond the boundary ofthe designated nonattainment area, to capture the effect oftransport from surrounding areas. If the geographic domain of an attainment demonstration and its emissions estimates are less than the CO, PM-la,

or NO2 nonattainment area and the SIP does not explicitly indicate an intent otherwise, EPA believes the budget applies to that domain. The MPO and DOT should analyze emissions from the transportation plan and TIP for the same

area in a consistent manner. Ifthe modeling domain extends beyond the nonattainment area, the budget applies for the portion within the nonattainment area boundary.

4. Revisions to the Emissions Budget

The emissions budget may be revised
at any time through the standard SIP revision process, provided the SIP demonstrates that the revised emission budget will not threaten attainment and maintenance ofthe standard or any milestone inthe required timeframe.

The State may choose to revise its SIP emissions budgets in orderto reallocate emissions among sources or among pollutants andprecursors. For example, ifthe SIP isrevised to provide for greater control ofstationary source emissions, the State may choose to increase the motor vehicle emissions budget to allow corresponding growth in motor vehicle emissions (provided the resulting totalemissions are still adequate to provide for attainment/ maintenance ofthe NAAQS and to satisfy all other applicable requirements of the Clean Air Act, including section 110(1)). Such a SIP revision must be approved by EPA before it can be used forthe purposes oftransportation conformity.

In cases where a SIP submitted prior to November 24, 1993 does nothave an explicit emissions budget but quantifies

a "safetymargin" by which emissions from all sources are less than the total emissions that would be consistent with attainment, the State may submit a SIP revision which assigns some or all of this safety margin to highway and transit mobile sources for the purposes ofconformity. Such a SIPrevision, once it is endorsed bythe Governor and has been subject to a public hearing,may be used forthe purposes oftransportation conformity before It is approved by EPA. All other SIP revisions adjusting the highway and transit emissions budget mustbe approved by EPA before they are used for the purposes of transportation conformity.

EPA would allow early use ofa SIP revision which reallocates part ofthe safety marginbecause some SIPs were developed before this rule and without

awareness that in the absence ofan explicit budget, the emissions projections would be used as the emissions budget forthe purposes of conformity. Areas which submit SIPs with budgets afterthe publication of this rule will also be using the SIP's budget for conformity purposes before it is approved by EPA.:

5. Subregional Emissions Budgets

The SIP may specify emissions budgets for subareas ofthe region, provided that the SIP includes a demonstration that the subregional emissions budget, when combined with all other portions ofthe emissions inventory, will result in attainment and/

or maintenance ofthe standard. The conformity determination must demonstrate consistency with each subregional emissions budget in the SIP. EPA's General Preamble for the Implementation ofTitle Iofthe Clean Air Act Amendments of1990 discussed the possibility ofsubregional budgets (57 FR 13558, April 16, 1992).

6. Requirements for a SIPControl Strategy to Meet the Budgets

A SIP may not select a desired level offuture highway and transit emissions andrely on the requirement for conformity findings by the MPO and DOTto achieve that level ofemissions without specifying control measures which are expected to result inthat emission level and demonstrating that each measure is enforceable and has adequate resources forimplementation (see sections 110(a)(2) (A), (B), and (E) ofthe Clean Air Act). An approvable SIP
must indicate how the State expects to be able tOachieve each budgeted level (includingany subregionally budgeted level) ofemissions by the relevant date. The MPO will usually have been involved in estimating "baseline" future emissions (i.e., emissions in the absence ofany new actions to control them), and in designing and estimating benefits for
any new controls that are identified in the SIP.

Any type oftransportation action affects emissions under some conditions, and therefore the SIP's demonstration offuture emissions will in a sense rely onthe full collection of those actions that were assumed. EPA believes that all actions which the SIP relies onto reduce travel, such as plans forexpanded transit, HOV lanes, other high occupancy facilities or services, and other demand management

measures which are reflected in the emissions analysis, do require enforceable commitments from the agencies who will undertake them. Generally, inclusion inthe transportation plan and TIP in effect at the time ofSIP submittal will be sufficient evidence of adequate

resources.

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D. NO 2 andPM-1Oin theInterimPeriod
EPA proposed in the NPRM toallow

no increase in NOx and PM-10 emissions above 1990 levels in NO 2 and PM-10 nonattainment areas. As described in the preamble to the NPRM, EPA proposed this requirement rather than the build/no-build test proposed for ozone and CO areas because EPA is
not certain what degree ofVMT reduction might be needed to pass a build/no-build comparison, and because the Clean AirAct did not appear to require it. (Therequirement for contribution to annual emission reductions only refers to ozone and CO areas.)

EPA received significant public comment that a 1990 ceiling on NOx and PM-10 emissions would impose stringent VMT reduction requirements
on many areas. In particular, because PM-10 emissions from reentrained dust are closely related to VMT levels, areas with significant emissions from reentrained dust may have to freeze or decrease VMT in order to demonstrate

- emissions below 1990 levels.

Therefore, in the final rule EPA allows NO2 and PM-10 nonattainment

areas to demonstrate conformity by either keeping emissions below 1990 (or

some other baseline) levels, or by satisfying abuild/no-build test. EPA believes that either ofthese demonstrations is sufficient to assure that there is no increase in the frequency or severity ofexisting violations during the interim period which can be attributed to the transportation plan, TIP, or project itself.The build/no-build test is consistent with the interim requirements for ozone and CO areas and sufficient to ensure that the transportation plan, TIP, or project is not itselfcausing a new violation or exacerbating an existing one. EPA is retaining the option ofkeeping emissions below 1990 (or some other baseline) levels because some commenters expressed support for this approach, and EPA believes some flexibility should be allowed in the absence ofdefinitive information on the VMT reductions necessary for an area to meet either the build/no-build test or an emissions ceiling.

EPA noted in the preamble to the NPRM that there is no requirement for

a 1990 inventory in PM-10 and NO2 nonattainment areas, and invited
comment on allowing other years tobe used asthe baseline. However, Clean Air At section 172(c)(3) requires a "current" inventory ofemissions. Since this will be 1990 inmost cases, the final rule establishes 1990 asthe baseline year, unless the conformity SIPrevision defines it as the year ofthe baseline emissions inventory used in control strategy SIP development.

E.NO,, Reductionsin OzoneAreas in theInterimPeriod

The NPRM did not propose to require demonstration ofNO,, reductions in

ozone nonattaininent areas during the interim period with a build/no-build
test. EPA received significant public
comment that the Clean Air Act mandates such reductions. After reviewing the comments and the statute, EPA agrees that Clean Air Act section 176(c)(3)(A)(iii)'s reference to section 182(b)(1) requires a contribution to reductions in NO, emissions during the interim period, as that section requires reductions in both VOC and NO,, as necessary to demonstrate attainment. Therefore, the final rule requires the build/no-build test in ozone nonattainment areas to be satisfied for both VOC and NO., unless the Administrator determines under section 182(f) ofthe Clean Air Act that additional reductions ofNO,, would not contribute to attainment in any area.
F.Transportation ControlMeasures (TCMs)

1. Demonstration ofTimely Implementation

Like the proposal, the final rule will allow the "timely implementation" criterion to be satisfied even ifTCMs are behind the schedule in the SIP, i.e.,

even ifa SIP milestone for TCM implementation has already passed or the plan orTIP in question will result in a future implementation milestone being missed. EPA received comment

on both sides ofthis issue, and EPA continues to believe that this approach is a practical necessity to accommodate uncontrollable delays. However, because section 176(c)(2)(B) ofthe Clean AirAct requires "timely implementation" ofTCMs, conformity may be demonstrated when TCMs are delayed only if all obstacles to implementation have been identified and are being overcome, and ifState and local agencies with influence over approvals orfunding are giving TCMs maximum priority.

EPA believes that the determination of"timely implementation" should focus on the prospective schedule for
TCM implementation, and all past delays should be irrelevant. Therefore, it is permissible for the plan/TIP to project completion ofaTCM implementation milestone which is later than the SIP schedule ifthe lateness is due to delays which have already occurred, or due to the time reasonably required to complete remaining essential steps (such as preparation ofa NEPA document, design work, right-of-way acquisition, Federal permits, construction, etc.). It is also permissible
to allow time forobtaining state or local permits ifthe project has not yet o advanced to the point where a permit could have been applied for.

However, where implementation milestones have been missed or are projected to bemissed, agencies must demonstrate that maximum priority is being given to TCM implementation. All possible actions must be taken to shorten the time periods necessary to complete essential steps in TCM implementation-for example, by increasing the funding rate-even though the timing ofother projects may be affected. It is not permissible to have prospective discrepancies with the SIP's TCM impleinentation schedule due to lack ofprogrammed funding in theTIP, lack ofcommitment to the project by the sponsoring agency, unreasonably long periods to complete future work due to lack ofstaff or other agency resources, lack ofapproval orconsent by local governmental bodies, or failure to have applied for a permit where necessary work preliminary to such application has been completed. However, where statewide and metropolitan funding

resources and planning and management capabilities are fully consumed (withinthe flexibilities ofthe Intermodal Surface Transportation Efficiency Act (ISTEA)) with responding
to damage from natural disasters, civil unrest, orterrorist acts, TCM implementation can be determined to be timely without regard to the above, provided reasonable efforts are being made. The burden ofproofwill be on the agencies making conformity determinations to demonstrate that the
amount oftime to complete remaining implementation steps will not exceed that specified in the SIP without good
cause, and thatwhere possible, steps will be completed more rapidly than assumed in the SIP in orderto make up lost time.

The determination that obstacles to implementation are being overcome and maximum priority is being given to TCMs is a specific issue which the conformity SIPrevisions' interagency consultation procedures must address.

Considerable comment was received regarding priority for TCMs and demonstration oftimely implementation ofTCMs. In response to comments that

a part of§ 51.394 "Priority" could be interpreted to weaken timely implementation ofTCMs rather than promote it, EPA has deleted language

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which required fending decisions to promote thetimely'implementation of transportation measures inthe applicable implementation pen -to the

extent that fndsae available."

There wasalso significant comment regardingthe relationship between TCM funding and timely implementation. Some commenters suggested that TCMs should be funded before obligations

were made for any otherTIP prjects, or that TCM fundsshould in some way be

set aside.EPA is also concerned that without explicit funding protection for TCMs, it is possible that TCMs in a conforming TIP may not actuallyhave funds obligated. Timely implementation could then be demonstrated in the next TIP through additional promises to fund the TCMs in the upcoming lIPcycle, but no mechanism would force the MPO

or project sponsor to obligate funds for TCMs in that TIP cycle once it has started.

After extensive consideration ofthis issue, EPA hasconcluded that the Federal transportation funding process doesnot offer practical opportunities to control the use of appropriated funds once they are apportioned or allocated. State DOTsand MPOs need flexibility in establishing the sequence in which projects are funded, due to unpredictable events in the timingof the project implementation process. This rules out requiring all TCMs to be obligated before other projects.

Furthermore, setting aside fundsfor TCMs poses special difficulties. A setaside would in effect bea lower limit on obligations for all other projects. DOT informsEPA that it isnot authoized to reduce States' obligation limits inthis
way. In additiort, when TCMsare legitimately delayed for reasons beyondany agency's control, the obligation authority cannot be reserved. Ifa State will be unable to use its obligation authority by the end ofthe Federal fisc&l
year it must bereleased so DOT ca redistribute ittoother States that can

use it. Any obligation authoritynot used by the end of the fiscal year lapses and is not available in subsequent years. Therore, EPAbelieves it is not reasonable to impose extra controls on how MPCM and State DOTs spend Federal highway and transit funds, beyond the requirements formaximum priority for approval and funding and for timely implementation ofTCMs. The ISTEA requirements for fiscally constrained trnsportation plans and TIPs also provide assurance that fhnds

are reasonably available,to implement TCMs as well asthe other projects inthe transportation pkan and TIP. 2. SIP Revisions Due toTCM Delays The preamble to the NPRM requested

comment on whether a SIP revision should be required when a TCM falls behind its implementation schedule in the SIP. The final rule does not automatically require aSIP revision when a TCM fallsbehind the schedule in the SIP. However, plans and TIPs

cannot be found in conformity unless the "timely implementation" criterion is satisfied. Therefore, if obstacles toTCM implementation are notbeing overcome because it is impossible to do so, if State and local agencies are not giving maximum priority toTCMswhich are behind schedule, or ifthe original
sponsor or the cooperative planning
process decides not to implement the TCM or decides to replace it with another TCM, aSIP revision which

removes the TCM will be necessary before plans and TIPsmay be found in conformity. {in order tobe approved by EPA, such a SIP revision must include. substitute measures that achieve emissions reductions sufficient to meet all applicable requirements of theClean Air Act, including section 110(l).) The interagency consultation procedures established bythe conformity SIP revision must include a process to discuss whether delays in TCM implementation should be handled by submitting SIP revisions to remove or substitute TCMs.

This approach is generally consistent with thecomments EPA received on this issue. Most commenters did not favor an automatic requirement for a SIP revision in the case ofevery TCM implementation delay, although many believed that SP action mightbe appropriate in certain circumstances. Several commenters supported requiring the SIP to include substitute TCMs and funding sources which would be implemented to ensure that emission reduction goals are met ifthe implementation of other TCMs were delayed. Although the SIP may have automatic project and/or funding substitutes in the case ofTCMdelays, the final rule doesnot require this. In general, the Clean AirAct does not require individual measures to have automatic substitutesin case of nonimplementation.

3. Retrospective Analysis ofTCMs

Neither the proposal nor the final rule requires the determination oftimely implementation tobebased on retrospective analyses ofTCM effectiveness or otherwise requires MPOs or DOT to affirmatively study and determine whether each TCM had its predicted effectiveness (unless the SIP explicitly includes such a requirementy. However, the final rule does require any analysis supporting a confomity determination to reflect the latest available information regarding the effectiveness and actual implementation ofthearea's TCMs. in order tosatisfy the criterion regarding use ofthe latest planning assumptions.

EPA believes that thetransportation community should be held responsible through theconformity process for implementing TCMs which the State committedto inthe SWP. However, EPA does not believe it isappropriate to hold the transportation community responsible for achieving the emission reduction goals predicted for each TCM, especially given the difficulty in predicting TCM effectiveness or even measuring project-specific benefits once TCMs are implemented. Because any shortfall in emissions reductions is reflected in futureconformity determinations through use ofthe latest planning assumptions, and because conformity isultimately based on a comparison with an emissionsbudget, EPA believes that the conformity process adequately addresses the issue of TCM effectiveness. Shortfalls in emissions reductions from TCMs will either be offset by other measures in the transportation plan and TIP so that the
motor vehicle emissions budget is still met, orthe transportation planandTIP will not be inconformity. In addition, serious andabove ozone areas are required to track aggregate VMTand vehicle emissions under section 182(c)(5)(A) oftheClean Air Act and overall emissions under section 182(g), CO areas above 12-7 parts per million
must also track'aggregate VMT each year. Conformity determinations are required to use thelatest planning assumptions.

4. TCMs in the Absence ofaConforming Transportation Plan and TIP

Individual projects may not be funded, accepted, or approved unless there is a currently conforming transportation plan and TIP. EPA received public comment indicatingthat TCMs in the SIPshould be able to proceed even inthe absence ofa conforming transportation plan and TIP, because thecommenters considered them to be consistent with the purpose ofthe SIP.

The finalrule would not allow TCMs
to proceed without a conforming transportation plan and TIP.Clean Air Act sections 176(c](21 (C) and (13} clearly require conforming transportation plans and TIPs to existin order to find projects in conformity. EPA doesnot believe that Clean Air Act section

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176(c)(1)'s very general definition of conformity asmeaning conformity to the purpose ofthe SIP overrules this

more specific requirement. According to the finalrule, only exempt projects may proceed without a conforming plan and TIP, because these projects are emissions neutral or constitute a de minimis exception to the requirement fora conforming transportation plan and TIP to be inplace.

Although it may appear intuitively counterproductive to delay transportation projects which benefit air quality just because an area is unable to develop a conforming transportation plan and TIP, the underlying philosophy ofthe conformity requirement fortransportation plans and TIPs is that transportation actions
mustbe planned and evaluated for emissions effects in the aggregate and for the long term. Allowing project-byproject approvals in the absence ofa conforming transportation plan and TIP is contrary to this philosophy. IfTCMs proceed outside the context ofthe transportation plan and TIP, there is no

assurance that the alternatives analysis hasbeen properly conducted and that the effect ofthe TCM on the flow within the network has been properly accounted for.

Furthermore, EPA believes that because many compromises and tradeoffs among involved parties may be required to develop aconforming transportation plan and TIP or to revise the SIP so that this ispossible, it is important for all constituencies to have

a stake in theirdevelopment. Allowing TCMs to proceed without aconforming transportation plan and TIP may undermine the cooperative transportation planning process.
G. Enforceability

Several commenters remarked that project-level mitigation or coAtrol

measures which are relied upon to demonstrate conformity should be enforceable. EPA agrees that some mechanism is necessary to ensure that theproject design concept and scope (including any mitigation orcontrol measures) which is assumed in a conformity analysis is actually implemented during the construction of the project and operation of the resulting facility or service.

The final rule requires thatbefore a project may be found in conformity, there mustbe written enforceable commitments from the project sponsor and/or operator that necessary projectlevel mitigation or control measures will be implemented as part ofthe construction and operation ofthe project. Specifically, the rule refers to project-level mitigation orcontrol

measures which are identified as conditions forNEPA process completion with respect to local PM-10

or CO impacts, or which are included in the project design concept and scope which was used in the supporting plan, TIP, and/or project-level confornlity analyses asa condition formaking conformity determinations.

Normal project design elements (dimensions, lane widths, materials, etc.) arenot mitigation measures. But the mitigation measures would include, for example, construction practices to control fugitive dust.Mitigation

measures would also include certain operating policies such as differential SOV/HOV pricing strategies and highoccupancy vehicle designation, unless they are shown not to be critical to the conformity determination. For these
cases, the commitment may be eitherto

a specific operating policy, orto an interactive processto determine the operating policy which produces a certain effect (i.e., the effect assumed in the conformity analysis). For example, a project sponsor/operator could commit
to either a certain toll, or to a process of setting atoll which results in a given level ofaverage daily traffic on the facility.

Actual other projects that are assumed in a current project's conformity analysis to be completed and operational ata future date-such as parallel non-SOV service--are not considered to be mitigation or control

measures for the current project and would notrequire written commitments. The requirement to use the latest planning assumptions will

ensure that conformity analyses reflect the currentplans for implementation of such other projects. In combination with the requirement for fiscal constraint and improved metropolitan planning procedures, EPA believes this is adequate assurance that these other projects ortheir equivalent will be implemented.

WIthe regional emissions analysis supporting a plan or TIP conformity determination includes project-level mitigation orcontrol measures in a project's design concept and scope,but written commitments from the project sponsor/operator are not obtained prior
to the project-level conformity determination, the project must be considered tobe "not from a conforming plan and TIP." The project will therefore need to be included in a new regional emissions analysis which may not assume implementation ofthe mitigation or control measures.

In addition to requiring that written commitments to mitigation measures be obtained from project sponsors prior to making a positive conformity determination, the final rule also requires that project sponsors must comply with such commitments once made. Pursuant to these final rules, EPA

can enforce mitigation commitments directly against project sponsors under section 113 ofthe Clean Air Act, which authorizes EPA to enforce the provisions ofrules promulgated under the Act. Once a State conformity SIP revision requiring written commitments

to mitigation measures is approved by EPA, such commitments can also be enforced directly against project
sponsors by States and citizens under section 304 ofthe Clean AirAct, which provides for citizen enforcement of requirements under an applicable implementation plan relating to transportation control measures or air quality maintenance.

The concern was raised to EPA that direct enforcement against non-federal parties could violate the prohibition against indirect source review programs in Clean Air Act section 110(a)(5). However, EPA concludes that this prohibition is not relevant to the requirement that project sponsors comply with mitigation commitments. EPA is not promulgating a generally applicable requirement forreview ofall indirect sources. Rather, EPA is enabling Federal agencies to make positive conformity determinations under Clean AirAct section 176(c) based on voluntary commitments by project sponsors to complete mitigation

measures. Project sponsors are not

- obligated to make such commitments. Where they volunteer to do so to facilitate Federal conformity determinations, EPA isrequiring them

to live up to such commitments. Without such arequirement, EPA could

not allow positive conformity determinations based on mitigation

measures prior to actual construction of mitigation measures.

Ifat a later time (only during the budget period, which extends to or beyond the attainment date) the MPO or project sponsor believes the mitigation

measure is no longer necessary for conformity, the project operator may be relieved ofits obligation ifit shows in

a regional emissions analysis ofthe transportation plan/TIP that the emissions budget(s) can still be met without the mitigation measure, and if it shows that no hot spots will be caused or worsened by not implementing the mitigation measure. The MPO and DOT

must confirm that the conformity determinations forthe transportation plan, TIP, and project would still be 1993 / Rules and Regulations 62199

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valid ifthemitigation measure isnot implemented.

Ifthe mitigation measure was not included in the project designconcept and scope which wasmodeled for the
purpose ofthetransportation plan and TIP conformity determination, the project sponsor oroperator wouldnot have to perform aregional emissions analysis in order tobe relieved ofits obligation. The MPO and DOT could confirm that the conformity determinations forthe transportation plan andTIP are validwithout further emissions analysis. However, a hot-spot analysis would be necessary in orderto demonstrate that the project-level conformity determination is valid even without the mitigation measure.
H.TimeLimitonProject-Levetl Determinatioms

Several commenters expressed

concern that by proposing inthe "Applicability" section that projects with a completed NEPA document and

a project-level conformity determination
mayproceed unless there has been a significant change indesign concept and scope ora supplemental enviromnental documem forairquality
reasons, theproposal would have allowed too manyprojects toproceed without an updated conformity analysis. Upon reflection, EPA believes that it is appropriate to respectprior determinations forprojects which have received fial approval, provided there have beenno significant changes in project design ccept and scope and major steps havebeen taken to advance the project. However, EPAbelieves that it is reasonable torequire a new conformity determination ifthereisno ongoing activity thatwouldbe delayed during the redetermination process and if several yem haveelapsed sincethe original determination, during which emissions models andplanning assumptions mayhave changed.

EPAwants tobalancetwo conflicting goals: (1)To maintain a stable and efficient transportation planningprocess by avoiding costly reanalysis and project redesign, and (2) toprotect air quality by taking into account changes
to the real wold or to our understanding ofit (e.g., changes tothe transportation network, the planned transportation network, planning assumptions, ormodels). Byproposing
to allow projects which havefinal approval to Proced, andby proposing
torequire only one project-level conformity deterrmtion, EPA intended to avoid disrupting the implementation process for projects which are underway. To protect air quality by considering new information and changed circumstances, the NPRM relied on DOT's process forreevaluating NEPA documentsand determining if supplemental NEPA documants we necessary. However. this process does
nothave clear commltatioD procedures

orcriteria fordetermining whm supplemental analysisisnecessary.

Therefore, the final rule allows implementation tocontinue foronly those projects which have acompleted NEPA document and project-level conformity determination, andwhich have had oneofthe following major steps within thepast three years:NEPA process completion; start otfinal design; acquisition ofa significant portion of right-of-way; or approval ofthe plans, specifications andestimates. The rule would require a new finding ofprojectlevel conformity iftheState seeks DOT authorization fora newstep orphase of

aproject whichhasnothad orie ofthese major steps within the pest three years. Thus, in contrast to theproposal,

roject-level conormity determinations
ae autometically undercertain
circumstances rather than lapsing through aDOT determination thata supplemental NEPA document is necessary. DOT'sNEPA regulations requirereevaluation ofNEPA documents for projects which havenot had majoraction fortlree years; the conformity process willensure thatthe effects ofnew planning assumptions and emissionsmodels are explicitly and affirmatively considered with the benefit ofinteragency consultation.

Under the EPA/DOT interim guidance issued June 7, 1901 andunder the NPRM, projects which had received a conformity determination but hadbeen inactive for morethan threeyears were allowed tobe included in the "Baseline" (no-build)scemario,. and

were alsoincluded in the "Action" (build) scenario. Consequentl, they did
not influence the outcome ofthe build/ no-build comparison even ifthe actual effect oftheir completion would beto increase emissions. For the same

reasons that EPAbelieves such inactive projects should receive new projectlevel conformity determinations before being reactivated, EPA belives that there should be one cycle of'plan and TIP analysis in which theprojectis treated asa newly proposed project. Accordingly, therule requires thatfor the first instance aftertodayin which theMP0 andDOTapply abuild/nobuild testtothe plan and TIP,the project should appear in thebuild but
not in theno-build scenario, ifthe project remains inthe plan orTIP. In* subsequent plan and TIP conformity determinations, theprojectwill appear in both scenarios regardless ofhow muchlonger it remains inactive or whether itexperiences a new periodof inactivity.The,project'seffects will always be accountedfor in tie budget test duringthetransitional or control strategy period, aslong an the project has notbeen removed from the transportatiou pln.

Therequirement to redetermine project-level conformity isindependent ofthe requirementto include the project in the build scenario for one plan and TIP conformity determination. The project maybe considered tocome from

a currently conforming transportation plan andTIP forthe purposesofa project-level conformity determination

even if the project hasnot yet been removed from theno-build scenario This would notrlievetheMPO ofthe responsiiility toinclude the pcoject's emissions only in the build scenar in the next plan andTIP redetermination, However,the MPOand theproject sponsor should consulton whether it is desirable to approve the project before it has been analyzed with itsemissions ircluded in the build scenario only, since completing theproject might reduce options for therest ofthe transportation system.

Once a reactivated project with a lapsed project-level determination has been properly analyzed as part of aTIP, theredetermination ofproject-level conformity will. dped upon the consideration ofhot spots. Inall cases,
once aproject-level determination has lapsed, a new finding ofproject-level conformity must be made. However, undercertain circumstances, a redetermination ofconformity foc a project withrespect tohot spots maybe based on the analysis performed forthe previous conformity determination For example, ifthere have been changes since the previous analysis to the emissions models,planning assumptions, orcurrent factsor assumptions regarding the transportation network ortraffic volumes, itmay stillbepossible to demonstrate that the hot-spot criterion is satisfied by making approximate calculations andjudgments aboutthe effect ofthe latest information onthe previous analysis. Ifthe previous analysispredicts a concentration which is not close tothe ambient airquality standard and the changes in emissions models orplanning assumptions arenot significant, it may bepossib4e to demonstrate conformity without a complete reanalysis. Such decisions about models and methodologies for hot-spot analyses arethesubject of interagency consultation.

. Although EPA wants the effects of

new planning assumptions and

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emissions models to be considered in project-level redeterminations, EPA does not intend the conformity process to force the development of supplemental NEPA documents. Under NEPA, supplemental documents are not necessary for every project which has
not had major steps within three years. Supplemental NEPA documents should only be prepared when there are significant changes as defined by the responsible Federal agency. By allowing certain conformity determinations tobe made on the basis ofprevious analyses, EPA hopes that rigorous reanalyses will
not need to be performed in allcases.
I.InteragencyConsultation

1.Minimum Standards

Like the proposal, the final rule requires the conformity SIP revision to establish detailed interagency consultation procedures. The rule lists topics which the procedures must address, such as frequency ofmeetings, without establishing minimum standards. The conformity SIPrevision shall determine such specifics and identify the ageficies to be involved in the interagency consultation processin particular, the local transportation agencies (such as county-level implementing agencies) and local air agencies. Commenters suggested examples ofspecific requirements Statesv
may choose to include, such as consultation on the unified planning workprogram; early notification announcing the initiation ofmajor work efforts; establishment ofoversight committees involving all significant, interested parties; forms of
announcement ofcomment periods; interagency notice ofpublic hearings; specific consultation requirements for plans and TIPs which DOTreturns to the MPO orState DOT for additional conformity findings; and availability of theMPO's summary and analysis of
comments. Because EPA believes that each State should have the flexibility to design the most effective and appropriate consultation process, EPA is not specifically requiring States to include these measures. However, EPA
encourages adoption ofextensive, effective consultation procedures that will resolve problems as early in the
process as possible and that will facilitate the development ofapproaches
to maximize airquality and mobility.

Until theconformity SIP revision is approved by EPA, the consultation requirements ofthe final rule may be satisfied ifreasonable opportunity for interagency consultation is provided. 2. Consequences ofFailure to Follow Consultation Procedures

The preamble to the notice of proposed rulemaking asked for

comment on what should be the
consequences offailure to follow the consultation procedures established in the conformity SIPrevision. The final rule establishes as a criterion for determining conformity that theMIPO

must follow the consultation procedures established by the SIP. Thus, failure to follow the consultation procedures established in the conformity SIP revision would be a violation ofthe SIP and would also undermine the validity ofthe conformity determination. The final rule's approach is consistent with the majority ofcommenters, who believed that the validity ofa conformity determination should depend on proper consultation procedures and that each State and participating agencies should jointly develop their own legally enforceable State conformity procedures.

3. Role of State AirAgencies in Conformity Determinations

EPA received many comments regarding the role ofState air agencies in determining conformity. EPA believes that a well-defined conflict resolution process provides security to all parties and thus facilitates the informal negotiation and collaboration which is essential to cooperative planning. A well-defined process will also expedite the resolution of disagreements and help prevent the transportation planning process from falling behind schedule ifconsensus is

not achieved.

Therefore, the final rule provides that conflicts among State agencies and between State agencies and MPOs must be escalated to the Governor ifthey

cannot be resolved by State agency heads. The State air agency may delay

an MPO or State DOT's conformity determination ifinteragency consultation has been pursued to the level ofthe head orchair ofboth agencies, and if the airagency escalates unsolved issues to the Governor within 14 calendar days. Once the State air
agency has appealed, the Governor's

concurrence must be obtained for the final conformity determination. Ifno appeal is made during the 14-day waiting period after the StateDOT or MPO has notified the State air agency head ofthe resolution ofits comments, the MPO or StateDOT may finalize its conformity determination. The Governor may delegate his orher role in the process, but not to the head or staff ofthe State or local air agency, State DOT, State transportation commissions

orboards, orMPO. The start ofthe 14- day clock and the form(s) ofescalation

are to be defined in the consultation procedures established by the SIP revision.

EPA is authorized to address consultation procedures by Clean Air Act section 176(c)(4)(B)(i), and EPA believes that this conflict resolution
process is necessary to ensure a meaningful consultation process.

Although the rule does not specify a

concurrence role for State air agencies,

a State may choose to provide one when it establishes consultation procedures in its conformity SIPrevision.

4. EPA Role in Conformity Determinations

The proposal solicited comment on whether EPA should be required to

concur on conformity determinations or

on the choice of models and methodologies. The final rule does not require EPA concurrence, and the Clean Air Act gives nodirect authority to do

so. However, the consultation procedures in the conformity SIP revision must address a process for response to the significant comments of involved agencies, including EPA.

5. Interagency Consultation Requirements in DOT's Metropolitan Planning Regulations

In addition to the consultation requirements established by the conformity SIP revision, DOT's metropolitan planning regulations (23 CFRpart 450) impose consultation requirements on the MPOs. These regulations specifically require in nonattainment and maintenance areas

an agreement between the MPO and the regional air quality agency which describes their respective roles and responsibilities for air quality-related transportation planning. Furthermore, these regulations require that in cases where the metropolitan planning area does not include the entire nonattainment or maintenance area, there must be an agreement between the State DOT, State air agency, other affected local agencies, and theMPO describing the process for cooperative planning and analysis for all projects outside the metropolitan planning area but within the nonattainment or maintenance area. This agreement must indicate how the total transportationrelated emissions from the nonattainment or maintenance area, including areas both within and outside the metropolitan planning area, will be treated for the purposes of determining conformity.

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1.FrequencyofConformity Determinations

1. Grace Periods Following Triggers for Redetermination

Several comments were received regarding the 18-month grace period for redetermination of the transportation plan following the promulgation ofthe final rule or EPA approval of certain SIP revisions. Some commenters expressed the need for longer ormore flexible
grace periods, while others believed that the grace periods should be shorter in order to rapidly accommodate new requirements. EPA continues to believe that 18 months is an appropriate balance between the need for conformity determinations to reflect updated information and the need to maintain a stable transportation planning process. Often (ifnot always) the emissions budget in a newlyapproved SIP will have already been used to demonstrate conformity of the" existing plan and TIP months earlier through the "transitional period" requirements ofthe final rule, making the 18-month trigger redundant for budget purposes, although still important for assessing timely implementation ofTCMs.

It should be emphasized that any new conformity determination following promulgation ofthe final rule or approval ofa SIPrevision involving the motor vehicle emissions budget or TCMs must be made according to the

new requirements or the new SIP provisions. The 18-month time period is only a grace period before the conformity status ofexisting plans must be re-evaluatedin the context of the new requirements. DOT must make conformity determinations on existing plans according to the requirements of today's rule within 18 months, or the conformity status ofexisting plans will lapse, and no further conformity determinations on projects may be made. MPOs must act before DOT. These determinations may coincide with the periodic adoption ofa new transportation plan or TIP, or with a transportation plan and TIP determination otherwise required by the rule (for example, one made to show conformity to a submitted emissions budget).

It should also be emphasized that any conformity determination made after the effective date ofthe final rule must be made according to the requirements of the final rule, even ifthe conformity SIP revision has not yet been approved. Once the conformity SIP -revisionhas been approved, conformity determinations must also follow the requirements it establishes..The 18- month time period before transportation plans must have a new conformity determination satisfying the requirements ofthe final rule is not in any waytied to the deadline for submission ofaconformity SIP revision.

2. TIP Amendments

The NPRM proposed that each TIP amendment requires a conformity determination, unlessthe amendment merely adds or deletes exempt projects. The final rule requires notification to other agencies ofsuch plan and TIP revisions to be an interagency consultation procedure which must be established in the conformity SIP revision. Notification is not expected to

occur before the fact, unless the conformity SIP revision requires it.

Some commenters expressed concern that not every TIP amendment involves regionally significant projects or changes in project design concept and scope which are significant. EPA believes that in such cases, no new regional emissions analysis would be required ifthe MPO and DOT make a finding that the previous analysis is still valid. That is, ifthe only changes to the TIP involve either projects which are not regionally significant and which
were not or could not be modeled in a regional emissions analysis, or changes to project design concept and scope which are not significant, the MPO or DOT could document this and use data from the previous regional emissions analysis to demonstrate satisfaction of the criteria which involve regional analysis. EPA said in the preamble to the NPRM that when a conformity determination is based on a previous analysis and no new transportation or air quality modeling is otherwise required, EPA would not require new modeling solely to incorporate revised planning assumptions (although use of the latest information is always recommended). Therefore, EPA believes that conformity determinations on minor TIP amendments do not necessarily require new regional emissions analysis, although a positive conformity finding must be made and the regional emissions criteria must be satisfied by documenting the appropriateness of relying on the previous analysis.

One commenter also stated that fullblown conformity determinations should not be required ifa project is moved between TIP years, but its completion date is still within the same year, or changes by morethan a year but
not enough to affect a milestone year. Under DOT'smetropolitan transportation planning regulations, moving a project from the second or third year ofthe TIP does not require a TIP amendment, and therefore, a conformity determination would not be required. When a project in the first year' ofthe TIP is delayed, the DOT regulations allow a project to be moved up from the second or third year using the ISTEA project selection procedures

orother project selection procedures agreed to by the MPO, State, and transit operator. Furthermore, EPA believes that for conformity determinations on TIP amendments, the demonstration of timely implementation ofTCMs should focus on thechanges to the TIP which impact TCM implementation. Anew status report on implementation'of TCMs is not necessarily required for TIP amendments; the status report from the previous conformity determination may be relied on ifby its nature the TIP amendment does not affect TCM implementation.

3.SIP Revisions as Triggers

Some commenters also stated that a full-blown conformity determination should not be required every time EPA approves a SIP revision which adds, deletes, or modifies a TCM. In order to be approved, such a SIPrevision would have to demonstrate that the added, deleted, or modified TCM is still consistent with attainment, maintenance, or other Clean Air Act milestones. EPA believes that an MPO

orDOT could rely on the regional analysis used in the SIP revision to make its conformity determination, if the MPO or DOT makes a finding that the SIP analysis meets this rule's requirements for how regional emissions analyses are performed.

In the preamble to the NPRM, EPA requested comment on whether the trigger for conformity redetermination following a SIP revision should be submission ofthe SIP revision to EPA,

or EPA approval ofthe SIP revision. EPA received significant comment advocating each of these approaches. In general, the final rule follows the NPRM's approach ofusing EPA approval ofthe SIP revision as the triggering event. Section 176(c) ofthe Clean Air Act refers to conformity to the "applicable implementation plan," and the applicable implementation plan is a SIP which is approved by EPA.

In the context of the interim and transitional period requirements, the final rule does establish a regional emissions test which requires consistency -withthe motor vehicle emissions budget in the submitted SIP, even before it is approved. EPA requires

use ofa submitted SIP in this case because EPA believes a SIP emissions budget, even ifit is not yet approved, is

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the bestway to determine "contribution to annual emissions reductions consistent with sections 182(b)(1) and 187(a)(7)," in the absence ofan approved SIP, as required by section 176(c)(3)(a)iii) of the Clean Air Act. Even in this case,EPA doesnot consider the submitted control strategy SIP, or any other SIP which is notyet approved, to be an "applicable implementation plan."

Although EPA is in most cases not adopting the option oftriggering conformity determinations with SIP submission, EPA believes the final rule's interim and transitional period criteria and procedures doaddress the

concern ofmany commenters that the State's control strategy should be used

as soon as possible for the purposes of conformity.

4. Additional Triggers

EPA believes the proposed triggers achieve an appropriate balance between. maintaining thestability ofthe transportation planning process and considering new information as expeditiously aspossible. Some
commenters supported additional triggers, such as changes in assumptions about assumed transit ridership (dueto changes in fare structure or the transit network), funding availability, or land

use scenarios. EPA believes that these changes are unpredictable, and using them as triggers fornew conformity determinations would be disruptive to the transportation planning process. However, the final rule requires such changes to be explicitly recognized in all future conformity determinations, in orderto satisfy the criterion which requires use ofthe latest planning assumptions.

5. Lapsing ofTransportation Plan and TIP Conformity Determinations

The final rule clarifies that if transportation plan and TIP conformity determinations arenot made within the three-yeartimeframe for periodic redetermination or within the grace period following a trigger, the conforming status ofthe transportation plan and TIP will lapse. In the absence ofa conforming transportation plan and TIP, no new project-level conformity determinations may be made. Also, although non-federal projects donot require conformity determinations, recipients ofFederal highway and transit funds may not approve or adopt regionally significant non-federal projects in the absence of aconforming transportation plan and TIP (see section IV.L. ofthis preamble). Thus, without a conforming transportation plan and TIP, only the following projects may proceed: projects which are exempted by the conformity rule; projects which have completed all transportation plan, TIP, andproject conformity determinations; and non-federal projects -whichare not regionally significant or which donot involve recipients of Federal funds.

K.FiscalConstraint

The NPRM included language from ISTEA on fiscal constraint for transportation plans and TIPs. EPA received several comments on this issue. In response to one comment, EPA has clarified that only transportation plans and TIPs which are fiscally constrained according to the requirements of DOT's metropolitan planning regulations (whichimplement ISTEA) maybe found to conform.

Several other comments concerned how the ISTEA language on fiscal constraint should be interpreted. EPA believes that the conformity requirements on fiscal constraint must be consistent with those that DOT establishes, andreferences DOT's metropolitan planning regulations at 23 CFR part 450 on this subject.

The metropolitan planning regulations require the transportation plan to include a financial plan that demonstrates the consistency of proposed transportation investments with already available and projected

sources ofrevenue. Thefinancial plan shall compare the estimated revenue from existing and proposed funding

sourcesthat can reasonably be expected to be available for transportation uses, and the estimated costs ofconstructing, maintaining and operating the total (existing plus planned) transportation system over the period ofthe plan.The estimated revenue by existing revenue

source (local, State, Federal,and private) available for transportation projects shallbe determined and any shortfalls identified. Proposed new

revenues and/or revenue sources to

cover shortfalls shall be identified, including strategies for ensuring their availability forproposed investments. Existing and proposed revenues shall

cover all forecasted capital, operating, and maintenance costs. Cost and

revenue projections shallbe based on data reflecting the existing situation and historical trends. Fornonattainment and maintenance areas, the financial plan shall address the specific financial strategies required toensure the implementation ofprojects and programs toreach air quality compliance.

The metropolitan planning regulations at 23 CFR 450 also require the TIPto be financially constrained and include a financial plan that demonstrates which projects can be implemented using current sources and which projects are tobe implemented using proposed new sources (while the existing transportation isbeing adequately operated and maintained). Only projects for which construction and operating funds can reasonably be expected to be available may be included. In the case ofnew funding
sources, strategies forensuring their availability shall be identified. In developing the financial analysis, the
MPOshall take into account all projects and strategies funded undertitle 23 U.S.C. and the Federal Transit Act, other Federal funds, local sources, State assistance, and private participation. In nonattainment and maintenance areas, projects included in the first two years oftheTIP must be limited to those for which funds are available or committed.

"Available" funds means funds derived from an existing source offunds dedicated to or historically used for transportation purposes which the financial plan (inthe TIP approved by the MPO and the Governor) shows to be available to fund projects. In the case of State funds which are not dedicated to or historically used fortransportation
purposes, only those funds that the Governor has control ofmay be considered "committed" funds. In this

case, approval ofthe TIP by the Governor will be considered a commitment offunds. For local or private sources of funding not dedicated
to or historically used for transportation
purposes (including donations of property), a commitment in writing/ letter ofintent by the responsible official orbody having control ofthe funds will constitute a commitment. Where the use of State, local orprivate funds not dedicated to or historically used for transportation purposes is proposed and a commitment as described above cannot be made, this funding source should be treated as a

new funding source and must be demonstrated to be a "reasonably available new source."

With respect to Federal funding

sources, "available" or "committed" shallbe taken to mean authorized and/

or appropriated funds the financial plan shows to be available to the area. Where the transportation plan orTIP period extends beyond the current authorization period for Federal
program funds, "available" funds may include an extrapolation based on current/past authorizations ofFederal funds that are distributed by formula. For Federal funds that are distributed on

a discretionary basis, including Section 3 and "demo funding," any funding 1993 / Rules and Regulations 62203

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beyond that currently authorized and targeted to thearea should betreated as

a new source and Xnustbe demonstrated
to be a "reasonably available new source."

For periods beyond years 1and 2of the TIPin nonattainment and maintenance areas, for TIPs in other
areas, and forthe transportation plan, funding mustbe "reasonably available," but need notbe currently available or committed. Hence, new funding sources may alsobe considered. New funding

sources are revenue sources that do not currently exist orthat require some steps (legal, executive, legislative, etc.) before ajurisdiction, agency, or private party can commit such revenues to transportation. Simply identifying new funding sources without identifying strategies for ensuring their availability will not be acceptable. Under the regulations, the financial plan must identify strategies forensuring their availability. It is expected that the strategies, particularly for new funding sources requiring legislation, voter approval or multi-agency actions, would include a specific plan of action that describes the stepsthat will be taken to

ensure that the funds will be available within the timeframe shown in the financial plan.

The plan ofaction should provide information such as how the support of the public, elected officials, business community, and special interests will be obtained, e.g., comprehensive and continuing program to make the public and others aware ofthe need for new

revenue sources and the consequences ofnot providing them. Past experience (includinghistorical data) with obtaining this type offunding, e.g.,

success in obtaining legislative and/or voter approval fornew bond issues, tax increases, special appropriations of funds, etc. should be included. Where efforts are already underway to obtain a
new revenue source, information such

as the amount ofsupport (and/or opposition) forthe measure(s) by the public, elected officials, business community, and special interests should beyprovided.

For innovative financing techniques,

the plan of action should identify the specific actions that are necessary to implement these techniques, including the responsible parties, steps (including the timetable) to be taken to complete the actions and extent of commitment by the responsible parties for the
necessary actions.

Following are examples ofspecific

cases where new funding sources should not generally be considered to be "reasonably available": (1)Past efforts
toenact new revenue sources have generally notbeen successful; (2)the
extent ofcurrent support by the public, elected officials, business community, and/or special interests indicates
passage ofa pending funding measure is doubtful; or (3) there is no specific plan of action for securing the funding source and/or other information that demonstrates a strong likelihood that funds willbe secured.

Since the financial plans willbe included in the metropolitan transportation plans and TIPs, the public and other interested parties will have an opportunity to review and
comment on the financial plans through the public involvement process required under the metropolitan planning regulations. Similarly, agencies involved in the conformity process will have an opportunity to review and
comment on the financial plans through the interagency consultation procedures established by the conformity SIP revision, which must contain a process for circulating draft documents (including plans and TIPs) forcomment prior to approval.

L.Non-federalProjects

The NPRM proposed that non-federal projects (i.e., projects which receive no Federal funding and require no Federal approval but which are adopted or approved by an entity that receives Federal transportation funds forother projects) do notrequire conformity determinations. However, to ensure that the transportation sector overall contributes to emissions reductions in the interim period as required, and because Federal and non- federal projects eventually share the same SIP
motor vehicle emissions budget, the NPRM proposed to require the regional emissions analyses for conformity determinations on transportation plans and TIPs to include allknown regionally significant non-federal projects. The final rule retainsthese two features but differs from the proposal as described below.

1. Requirements For Adoption or Approval ofProjects By Recipients of Funds Designated Under Title 23 U.S.C.

or the Federal Transit Act

EPA received significant public
comment on the issue of conformity's applicability to non-federal projects. The final rule does not require nonfederal projects to have a conformity determination (i.e., a finding that the project satisfies all the rule's criteria and procedures, including hot-spot analysis and regional analysis). EPA continues to believe, as described in the NPRM, that the better reading ofthe Clean Air Act does not apply all ofthese aspects of conformity to non-federal projects.

However, upon consideration of public comments, EPA believes that the NPRM's solitary requirement to account for known regionally significant nonfederal projects does not fully comply with the best reading ofClean AirAct Section 176(c)(2)(C). Section* 176(c)(2)(C) says explicitly that "a transportation project may be adopted

orapproved by a metropolitan planning organization or any recipient of funds designated under title 23 U.S.C. orthe Urban Mass Transportation Act * * * only if it comes from a conforming transportation plan and TIP," or (to paraphrase) ifa regional emissions analysis demonstrates that the plan and TIP would still conform if the project

were included.

EPA has decided that "transportation project" in Section 176(c)(2)(C) ofthe Clean Air Act is best interpreted as meaning any transportation project, rather than only Federally funded or approved projects. The statutory language does not limit the phrase "transportation project" in any way. Accordingly, the final rule requires that before adopting or approving a regionally significant non-federal transportation project, recipients oftitle 23 U.S.C. or Federal Transit Act funds must determine either that the project

was included in a conforming plan and TIP, or was included in the original regional emissions analysis supporting the plan or TIP's adoption, orthat a new regional emissions analysis including the plan, TIP, and project demonstrates that the plan and TIP would still conform if the project were implemented.

DOT would have no responsibility for ensuring that recipients ofFederal funds make the proper determinations before they adopt or approve regionally significant non-federal projects. However, failure ofa recipient of Federal funds to determine that a regionally significant non-federal project is included in a conforming plan and TIP (or regional emissions analysis ofa plan and TIP) would be a violation ofthe SIP and ofthe Clean Air Act Section 176(c)(2)(C).

EPA's interpretation of "transportation project" to mean any transportation project rather than only Federally funded or approved projects,

can be applied to every other use of "transportation project" throughout Section 176(c),,without contradicting any aspect ofEPA'srule and without requiring conformity determinations on such projects. This is because section 176(c)(1) ofthe Clean Air Act, which defines conformity, requires conformity

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determinations only for transportation projects which are adopted, accepted, or funded by an MPO or DOT.

Although Section 176(c)(2)(C) refers

to "projects" in general, EPA is limiting its requirement regarding approval or adoption by recipients ofFederal funds

to regionally significant projects. Section 176(c)(2)(C) requires projects to either come from a conforming plan and TIP, or meet the Section 176(c)(2)(D) requirement that a regional emissions analysis demonstrate that the plan and TIP would still conform ifthe project

were implemented. By their nature, projects which are not regionally significant would meet at least the terms of Section 176(c)(2)(D), or they would fail to meet these terms by at most a de minimis amount. These projects either

cannot be incorporated into the transportation network demand model.

are emissions neutral, or their effect is implicitly captured in the modeling of regionally significant projects (through the universal practice ofassuming that the amount of off-network travel is a function ofthe travel predicted to occur

on regionally significant facilities that

are represented in the network model). Consequently, EPA is exempting from this requirement those non-federal projects which are not regionally significant.

Recipients of title 23 U.S.C. or Federal Transit Act funds include recipient agencies at any level of State, county, city, or regional government. Private landowners or developers, and

contractors or grant recipients (including local government agencies) which are only paid for services or products created by their own employees, are not considered recipients offunds. That is, ifan agency receives title 23 U.S.C. or Federal Transit Act funds and then uses the funds to pay private landowners or developers, contractors, or grant recipients, the private entities/ contractors/grant recipients are not thereby considered recipients of Federal funds for the purposes ofthis requirement, and their other non-federal projects would not be subject to this requirement. Furthermore, projects which do not involve any participation by recipients of Federal funds are not subject to this requirement.

The requirement regarding approval

or adoption ofregionally significant non-federal projects by recipients of funds does apply when recipients of funds approve regionally significant projects which they are not implementing themselves. This includes approvals to connect regionally significant privately built roads to public roads, and/or transfer of ownership to a public entity.

Although the Clean AirAct refers to adoption or approval of projects, the line separating tentative planning from actual implementation ofnon-federal projects may not always be clear. The specific step considered to be adoption

or approval may depend on what other steps exist in a recipient's process. The SIP must designate what action by each affected recipient constitutes adoption

or approval. EPA believes that adoption/ approval is never later than the execution ofa contract for site preparation or construction. Adoption/ approval will often be earlier, for example, when an elected or appointed commission or administrator takes a final action allowing or directing lowerlevel personnel to proceed.

Although MPOs do not necessarily have an adoption or approval role, ifan MPO does adopt or approve any highway or transit project, regardless of funding source, a full project-level conformity determination which satisfies all the requirements of today's rule is required.

2. Disclosure and Consultation Requirements for Non-federal Projects

Upon consideration ofpublic comment, EPA concluded that the NPRM's solitary requirement to account for known regionally significant projects does not adequately'protect against situations in which a project sponsor does not inform the MPO ofits intent to undertake a project because it anticipates objection from others in the transportation planning process. Or,a sppnsor may consider its thought processes too preliminary to constitute

an intention or plan.Also conceivable

are situations in which the MPO purposely does not include aknown project in the emissions modeling because ofthe anticipated difficulty it would cause for the transportation plan and TIP's regional emissions conformity
test. In these situations, emissions increases from non-federal projects could notbe simultaneously offset, and projects could beirreversibly committed before transportation planning participants realized the need to offset their impacts.

The final rule addresses these situations by (1)makingdisclosure of regionally significant non-federal projects a requirement ofthe conformity SIP's consultation provisions; (2) explicitly stating that disclosure is required even if the project sponsor has
not made a final decision; (3) requiring MPOs to include all disclosed or otherwise known regionally significant non-federal projects in the regional emissions analysis; (4) requiring MPOs
to specifically 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 (5) requiring recipients ofFederal funds
to determine that their regionally significant non-federal projects satisfy the requirements ofsection 176(c)(2)(C) ofthe Clean AirAct before the projects

are adopted or approved (i.e., determine that the projects are included in a conforming transportation plan or TIP

or are included in a regional emissions analysis ofthe plan and TIP). These five requirements are directly imposed as Federal regulation; they must also be established as conformity SIP provisions. Failure to observe the consultation requirements (items 1 through 4, discussed above) would be a violation ofthe SIP.

The final rule requires the conformity SIP to establish a mechanism which ensures that other recipients ofFederal funds disclose to the MPO on a regular basis their plans for construction of regionally significant non-federal projects (including projects for which alternative locations, design concept and scope, or the no-build option are still being considered). Changes in such plans must be disclosed immediately. The final rule also requires consultation between the MPO and project sponsors to determine the non-federal projects' location and design concept and scope to be used in the regional emissions analysis, particularly for projects for which the sponsor does not report a single intent because the sponsor's alternatives selection process is not yet complete. Ifthe MPO assumes a design concept and scope which is different from the sponsor's ultimate choice, the

next regional emissions analysis for a conformity determination must reflect the most recent information regarding the project's design concept and scope.
3. Response to Comments

Although EPA does not agree with the
commenters who believe the Clean Air Act requires conformity determinations for non-federal projects, EPAbelieves that the final rule addresses many of these commenters' practical concerns. Because the final rule prohibits the implementation ofregionally significant non-federal projects until their emissions impacts are accounted for in the regional emissions analysis, the integrity ofthe transportation planning
process is preserved. There is no opportunity to escape or delay the conformity implications ofa project by shifting its funding from Federal to nonfederal sources, and a formal

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mechanism will be established to ensure that plans for regionally significant nonfederal projects are disclosed to the MPO. In this way, the impacts of nonfederal projects will beconsidered at the

same timeas the impacts ofFederal projects, and Federal projects (ornonfederal projectsby other sponsors) will not be forced to offset the emissions of non-federal projects in later transportation plans and TIPs, after the non-federal projects have already been built.

Furthermore, in the absence ofa conforming transportation plan and TIP, project sponsors will not be able to adopt orapprove new regionally significant non-federal projects. This

ensures that all participants in the transportation planning process are involved in the effort to develop a conforming transportation plan and TIP, and that regionally significant nonfederal projects are not proceeding without necessary emissions offsets from othertransportation projects.

The final rule s approach is also consistent withthe comments EPA received regarding the potential burden ofmaking conformity determinations for non-federal projects. The final rule does
not impose any significant additional substantive burden on MPOs or project sponsors beyond that ofthe NPRM, because the NPRM also required the impacts ofregionally significant nonfederal projects to be accounted for in the regional emissions analysis ofthe plan and TIP. DOT'sproposed rule on metropolitan planning (58 FR 12064, March 2, 1993) requires the transportation plan to include regionally significant non-federal projects, and requires the TIPto include for informational purposes all regionally significant projects to be funded with non-federal funds.

V.Discussion ofComments

A. Applicability

1.Incomplete Data, Transitional, and "Not Classified" Areas

Because incomplete data and transitional ozone areas and CO "not classified" areas are designated nonattainment, the NPRM's conformity requirements applied to them. EPA received significant public comment that these areas should be exempt from conformity requirements.

EPA believes that section 176(c)(1)(B) ofthe Clean Air Act, which requires that

no activity may "cause or contribute to any new violation ofany standard in
any area, orincrease the frequency or severity ofanyexisting violation ofany standard in any area" requires that conformity requirements apply to all nonattainment areas. However, as with attainment areas (as described above), EPA agrees that the burden of determining conformity according to the requirements proposed in the NPRM
may outweigh the incremental protection it provides to air quality in incomplete data, transitional, and "not classified" nonattainment areas, given that these areas already may be at little risk ofexperiencing violations of ambient standards.

As described above, EPA will be issuing in the near future a supplemental notice ofproposed rulemaking which proposes criteria and procedures to apply conformity to attainment areas. EPA intends that this proposal will offer flexible, lowresource criteria and procedures for certain attainment areas which must make conformity determinations. In this supplemental proposal EPA will also consider how to amend the requirements for incomplete data, transitional, and "not classified" areas

so that the analysis requirements for these areas hore closely correspond to the potential risk ofNAAQS violations in these areas.

2. Length oftheMaintenance Period

The NPRM proposed that the maintenance period lasts indefinitely. Several commenters recommended that the maintenance period be finite. Threeyear, five-year, and twenty-year maintenance periods were suggested.

The final rule limits the length ofthe maintenance period to twenty years. " unless the applicable implementation plan specifies a longer maintenance period. Because the maintenance plan required by section 175A ofthe Clean Air Act must address twenty years, EPA believes that conformity determinations

are required for at least that time. Ifthe maintenance plan establishes emissions budgets for more than twenty years, the

area would be required to show conformity to that maintenance plan for

more than twenty years. In the absence of intent in the maintenance plan to extend the maintenance period, EPA believes it is appropriate for the maintenance period to coincide with the period addressed by the maintenance plan. Once the maintenance period ends, maintenance areas will be subject
to the forthcoming rule addressing conformity in attainment areas as applicable, and will therefore be protected from fallingback into nonattainment. 3. Statewide Transportation Plans and Statewide Transportation Improvement Programs (STIPs)

The NPRM proposed that transportation plans, TIPs, and transportation projects must be found to conform. Some commenters stated that conformity should also apply to statewide transportation plans and STIPs, which are newly required by ISTEA and DOT's statewide planning regulations at 23 CFR part 450.

The final rule requires conformity determinations only for metropolitan transportation plans and TIPs developed under 23 CFR part 450. EPA believes that STIPs are not TIPs as the latter term is meant in Clean Air Act section 176(c), and that conformity therefore does not apply to them directly. However, this exclusion does not in any way reduce the protection afforded by the conformity process. DOT's statewide planning regulations require that the Governor may not adopt a metropolitan transportation plan orTIP into the statewide transportation plan or STIP unless the metropolitan plan or TIP has been found to conform. Because not all

areas ofa State are required to perform conformity analyses, EPA believes that it is more practical to ensure conformity by making conformity determinations at the metropolitan level, before incorporation into the statewide plan or STIP, and that the Clean Air Act requires nothing more.

Furthermore, regional emissions analyses for the purposes ofconformity

are to be conducted under this rule only for each nonattainment area or area subject to a maintenance plan under Clean Air Act section 175A, not on a statewide basis.Therefore, there is no advantage to analyzing for conformity
groups of projects aggregated at the State level. EPA believes that DOT's statewide planning regulations provide adequate

assurance that the statewide plan and STIP include only projects from conforming metropolitan plans and TIPs.

4. Other Transportation Modes

The NPRM for this rule applied conformity only to actions by FHWA and FTA. EPA received some public

comment on whether the transportation conformity regulations should apply to other modes oftransportation, such as railroads, airports, and ports.

The final transportation conformity rule applies its criteria and procedures only to FHWA and FTA actions. EPA believes that the special "transportation" provisions in Clean Air Act sections 176(c)(2) and 176(c)(3) clearly are addressed only to

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transportation plans,programs, and projects developed under title 23 U.S.C. and the Federal Transit Act, which do
not address projects involving railroads, airports, and ports. However, the general conformity rule covers all other Federal actions, including those associated with railroads, airports, and ports.

As some commenters pointed out, there is no planning authorityfor these activities vested in the MPO under ISTEA. Although ISTEA emphasizes intermodal planning, MPOs have only a coordination responsibility. In general, MPOs are notcomprehensive transportation or land use agencies. Airport, rail, and shipping systems are covered by separate Federal law, and the TIP is not the appropriate tool for controlling these activities.

However, EPA also agrees with some commenters that the State may develop

an appropriate mechanism fordealing with other transportation modes, either through the transportation or general conformity process.
5. Highway and Transit Operational Actions

The NPRM's proposed definition of "transit project" specifically did not encompass transit operational actions such as route changes, service schedule adjustments, or fare changes (58 FR 3788). The NPRM also did not intend conformity to apply to changes inroad

orbridge tolls (58 FR3773). EPA invited
comment onwhat type oflimited application of conformity to these types ofactions might be appropriate and received a substantial response from the public on this issue.

The final rule doesnot consider highway and transit operational actions such as route, schedule, fare, or toll changes to be a "transportation project" subjectto conformity. However, as described inthe NPRM, any changes of this sort mustbe included in the background modeling assumptions for subsequent conformity determinations. The finalrule further clarifies this by requiring that changes to transit operating policies and assumed transit ridership be documented in the conformity determination in order to demonstrate use ofthe latest planning assumptions.

Although EPA acknowledges that certain operational actions maybe significant, EPA was unable toidentify

a defensible threshold above which conformity determinations should be required or triggered, nor a legal rationale forrequiring conformity review of such activities. EPA believes that it is not practical or appropriate for all operational actions to befound to conform before they are implemented,

or forthese actions to trigger conformity determinations. As described in the preamble to the NPRM, FTA is specifically prohibited from becoming involved in local decisions such as fares, routes, and schedules, so section 176(c) does not seem to directly apply
to such actions. Furthermore, changes in such policies are frequent, and transit operators need the flexibility to respond quickly to localneeds. Requiring conformity for these types ofactions would be unnecessarily burdensome, especially because transportation models cannot measure the impacts of
most individual route and schedule changes. Using changes in operational policies to trigger new determinations of plans and TIPs also seems impractical

ecause operational changes are frequent and unpredictable.

6. Multiple Stage Projects

Some commenters requested clarification of how EPA intends to treat projects with multiple stages. The NPRM and the final rule define "highway project" to consist of all required phases necessary for implementation. NEPA requires projects to have logical termini and independent utility. Therefore, project-level conformity determinations aremade on entire projects asdefined by NEPA, not stages ofthem. NEPA termini must be included Inthe regional analysis and project-level analysis before the project
maybe found-to conform. Ifonly some ofthe project's stages are included in the conforming TIP, the project may still be found to conform provided the total project is included in the regional emissions analysis.

Hot spots mustbe addressed separately for different project phases if there is significant delaybetween them, in orderto prevent violations being caused fora period ofyears before later phases which would correct the violations are actually programmed and built.

7. Project-level Determinations'

Some commenters requested clarification on the responsibilities for project-level determinations. Section 176(c) ofthe Clean Air Act requires transportation projects which are funded or approved by FHWA or FTA
to be found to conform before they can be adopted or approved by an MPO or approved, accepted, or fundedby DOT. MPOs donot necessarily adopt or approve projects, and are not required by the Clean Air Act to make projectlevelconformity determinations unless they perform a project-level adoption or approval role.Project-level conformity determinations are clearly necessary, however, in order for DOTto fund a project. EPA anticipates that ifthe MPO does not adopt or approve a project, the project sponsor (e.g., the State DOT) will make a project-level conformity determination ofits own, or will at least perform the required analysis and recommend an affirmative determination, in orderto facilitate DOT's conformity determination. This is similar to the way NEPA analyses are conducted, and EPA expects that most project-level conformity determinations will be made aspart ofthe NEPA
process.
8. Projects Which Are NotFrom a Conforming Transportation Plan and TIP

Regional analysis.Some commenters requested clarification on how conformity determinations are made for projects in rural nonattainment areas which are not associated with a metropolitan area, and in areas which

are outside the MPO boundary but inside the boundary ofanonattainment ,or Clean Air Act section 175A maintenance plan area that is dominated by a metropolitan area ("donutareas").

The NPRM and the final rule require the conformity SIPrevision to include in its interagency consultation procedures a process involving the MPO and State DOT for cooperative planning and analysis for determining conformity ofprojects in donut areas. Because an MPO must consider in its regional analysis oftransportation plans and TIPs all highway and transit projects in the nonattainment or maintenance area, the MPO and State DOTmay choose to actually include donut area projects in the transportation plan and TIP. In such
cases, no further regional analysis of such projects wouldbe necessary.

Ifprojects in donut areas arenot specifically included in the transportation plan and TIP, the projectlevel conformity determination would have to document that such projects

were included inthe original regional emissions-analysis used to demonstrate conformity ofthe existing transportation plan andTIP. Another option isto perform a complete reanalysis in which the project is hypothetically assumed to be added to the transportation plan and TIP, and the combination istested to see if itwould satisfy all the conformity criteria for transportation plans andTIPs. Ifit would, the project may be found to conform. EPA notes that this reanalysis must use the latest planning assumptions and emissions models, which may have changed since the TIP

was adopted. Ofthe three options, EPA

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believes that all parties involved will be better served by pursuing the first or second option.

In isolated rural nonattainment areas (and otherareas which do notcontain

a metropolitan planning area and which

are not part ofa nonattainment or maintenance Metropolitan Statistical Area or Consolidated Metropolitan Statistical Area) there is no metropolitan transportation plan orTIP which requires a regional emissions analysis. The final rule provides that projects in such areas may satisfy the regional emissionsconformity test if the projects inthe nonattainment or maintenance

area which are funded orapproved by FHWA or FTAare grouped together and analyzed in a regional emissions analysis, together with all other regionally significant projects expected in the nonattainment ormaintenance

area. Projects need notbe demonstrated
to meet the regional emissions criteria

on an individual basis; rather, one regional emissions analysis may be performed which includes them all. The statewide plan and STIP will provide

one mechanism foridentifying the projects which need to be regionally analyzed. Responsibilities for conducting such analysis shall be determined through the conformity SIP, but EPA anticipates that the State DOT will be primarily responsible for conformity analyses in such areas.

In isolated rural areas, non-federal projects maybe considered to have been included in a regional emissions analysis of the transportation plan or TIP ifthey aregrouped with Federal projects in the nonattainment or maintenance area in the statewide plan and STIP forthe purposes ofa regional emissions analysis.

Interimperiod.EPA proposed that during the interim period, projects not from a conforming transportation plan

or TIPbe afforded the same opportunity
to demonstrate conformity that such projects have in the control strategy period. Specifically, projects not from a conforming transportation plan and TIP could be included ina regional emissions analysis ofthe projects together with those ofthe conforming plan and TIP in order to determine whether the plan and TIPwould still conform tothe SIP.This opportunity is provided for all projects without limitation in section 176(c}[2)(D) ofthe Clean Air Act. Some commenters indicated that this provision should not be applicable during the interim period, by which they mean the period prior to adoption (or approval) ofan emissions budget. Section 176(c)(3) ofthe Clean AirAct provides certain alternative methods for demonstrating conformity with respect to both plans and TIPs as well as projects during an interim period, defined as the period prior to the approval of the conformity SIP revision. However, the statute nowhere indicates that the provisions ofsection 176(c)(3)

are the exclusive method ofdetermining conformity during the interim period as the term is used in thisrule and by the
commenters. Section 176(c)(3) provides that during the interim period, conformity ofprojects "will be demonstrated" ifcertain tests are met. It does not saythat conformity may only be demonstrated through those tests.

EPA concludes that while projects
may take advantage ofthe provisions of section 176(c)(3) during the interim period, they may also demonstrate conformity under section 176(c)(2) where possible. Therefore, EPA is retaining in the final rulethe provisions allowing the use of project-level determinations under section 176(c)(2)(D) during the interim period, with the applicable interim criteria in the final rule substituted forthe statute's "emission reduction projections and schedules assigned to such plans and programs" as the benchmark against which conformity is measured.

9.Multiple Nonattainment Areas and MPOs

Some commenters requested clarification on how conformity determinations should be made ifa metropolitan planning area includes multiple nonattainment areas, or ifa nonattainment area includes multiple MPOs. In general, interagency relationships andresponsibilities will be established by the conformity SIP revision. If ametropolitan planning area includes more than one nonattainment

area, a conformity determination must be made for each nonattainment area. Emissions budgets established in the SIP(s) for the included nonattainment

areas maynot be combined or reallocated. Build/no-build tests must be applied separately ineach nonattainment area. Where a nonattainment area includes multiple MPOs, the control strategy SIP may either allocate emissions budgets to each metropolitan planning area, orthe MPOs must act together tomake a conformity determination forthe nonattainment area.

EPA also expects there to be agreements amongagencies on howto make conformity determinations for multistate nonattainment areas.
B.ApplicableImplementationPlans

The NPRM defined the "applicable implementation plan" to which conformity mustbe demonstrated asa SIP which has been approved by EPA or

a Federal implementation plan which has been promulgated by EPA. EPA received some comments expressing concerns that in some areas, notably in California, the approved SIP is quite outdated, although there have been relatively recent SIP submissions which EPA has notyet approved. These
commenters argued that it is most appropriate to determine conformity with the SIP submission, which represents the most recent SIPcontrol strategies, rather than the approved SIP.

The final rule retainsthe NPRM's definition of"applicable implementation plan." EPA believes that it does nothave the authority to require conformity to an implementation plan which has not been approved by EPA and therefore does not have the force ofFederal law. (Duringthe transitional period, EPA requires use ofthe submitted SIP to determine contribution to annual emission reductions, but doesnot consider the submitted SIP to bethe "applicable implementation plan" to which transportation plans, TIPs, and projects must conform.) Because EPA does not believe that SIPs approved before 1990 have motor vehicle emissions budgets which are applicable forconformity purposes, TCMs are the relevant element of an old approved SIP. Areas with outdated SIPs have been required to demonstrate timely implementation ofTCMs in the SIP at least since the June 1991 EPA/DOT interim conformity guidance. At that time, EPA urged areas to revise their SIPs toremove any TCMs which are outdated and no longer appropriate, to prevent failure to implement them from prohibiting conformity determinations. EPA continues to believe that because the statute requires that conformity be demonstrated with the approved SIP,
any outdated elements ofthat SIPwhich

areas areconcerned would prohibit conformity determinations mustbe revised through the SIPprocess. EPA will strive to expedite its action on such SIP revisions.

C. ConformitySIPRevisions

EPA requested comment in the preamble to the NPRM regarding the legal form ofthe conformity SIP revision. Commenters asserted that States should not be required to formally adopt regulations embodying the conformity procedures. EPA has reviewed this issue and concludes that the appropriate form ofthe State conformity procedures depends upon the requirements oflocal law, so long as the selected form complies with all 1993 / Rules and Regulations

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Cleam Air Act requirements for adoptia, submittal to EPA,and implementation ofSips. Clen ir ctsection 11O(al(ZXA) requires that all SIP measures be enforceable, and section 110(aX2)(E) requires that States have adequate authority underlocal law toimplement the SIP.Readtogether, these provisions requirethat the State have the authority under State low to compel compliance with theSIP conformity procedures by the persons orentities towhich they apply, in whatever form the procedures
may take.

For themost part, EPAbeieves that adopted regulations will be required at the State or locak level to enable States to require

### MPNOs, project sponsors, recipients of funds designated under title 23 U.S.C. ortheFederal Transit Act, and DOT tocomply with the requirements ofSlate conformity procedures. However, EPA understands that in some States, environmental board resoutons or air agency administrative orders could provide adequate authority. EPA will accept State conformity procedures in any form provided the State can demonstrate to EPA's satisfaction that, as amatter or State law, theState has adequate authority tocompel compliance with the requirements ofthe State conformity procedures.

Whatever the form, EPA expects the State procedures to mirror portions of the text ofEPA'srule essentially verbatim to ensure compliance,with Clean AirAct section 176(c), especialy §§ 51.392 (definitions), 51.394 (applicability), and 0 51.410 through 51.446 (criteria), except where the State chooses tomake its procecures more stringent than the EPA rule,as provided by §51.39 oft~day's rule.

EPA believes that, due to limitations

on the waiver of sovereign immunity in the Clean Air Act, ifa State wishes to apply more strinpnt conkrmity rules for the purpose ofattaining airquality, it may do soonly ifthe same requirements are imposed on nonfederal as well as Federal actions. Diffing Stateconformity rulesmay not

cause amore significant or unusual obstacle toFederal agencies than nonfederal agencies for the same type of action. Therefore, if a State determines that more stringent conformity criteria and procedures ae necessary, these requierments must be imposed on a&B simihractions whetherthe sponsoring

agency is a Federal ornon-federal entity; non-federal entities include State and loca4 agencies and private sponsms.

Ifa Stat elects to impose more . stringent conformity reqniements, they must not be so narrowly construed as to apply in practical effect only to Federal
actions. For example, ira State decides that actions ofemployers with more than 500 emphlees require conformity determinations, and the Federal government is the only employer,ofthis size in a prticular jurisdiction, then this rule would be viewed as discriminatory and woufd not be permitted. Consequently, more stringent State conformity rules must not only be, written to apply similarly te all Federal and non-federal entities, but they must be able to be implemented so,that they apply in a nondiscriminatory way in practice. Fora f 01 discussion of the issue ofState authority to impose more stringent conformity requirements, see the preamble tothe general conformity final rule ("Determining Conformity of General Federal Actions to State or Federal Implementation Plans!).

Somecommenters requested clarification on whetherattainment
areas, which are not subject tothe final rule, are required to submit conformity SIPrevisions within 12 monthsofthe promulgation ofthe final rule. The final rule doesnot require attainment areasto submit conformity SP revisions. However, as indicated in the preamble section "Discussion ofMajerIssues," EPA intends to issue a supplementary notice ofproposed rulemaking which would,propose criteria and procedures

to apply conformity to attainment areas. EPA intends torequiteconformity SIP revisions for attainment mreaswithin 12 months following promulgation ofa final rule establishing the criteria and procedures applying conformity to attainment areas.

This final rule does require a conformity SIP revision within 12 months following an attainment area's redesignation tononattairment.

D. Public Participation

The NPRM referenced DOT's then as yet unreleased metropolitan planning regulations implementing ISM for public participation requirements Until those regalations becare effective, the NPRM proposed torequire agencies to publish their proposed public participation procedures and allow 45 days for written comments. The NPRM also proposed to require MPQs to
prepare a summary and analysis of written and oral comments before taking finalactiow on comformity determinations, and torequire additional opportunity forpublic

comment ifthetransportation phn or TIP tobe submitted to DOT is significamty different from the one made available for publiccomment.

EPA received substantial pubKc comment on theissue of public participation. Ahhough some
commenter supported the NPRM's approach, some commenter betieved that the conformity nle should establish minimum pubtic participation requirements. Thesecmnmenters suggested a range ofminimum requirements, including comment periods, public hearings, and analysis of significant comments

EPA believes that tofaciitate cooperative air quality¢transpovtakion planning, the pmlic parkicipation requirements in the comformity rule

must be consistent withthepublic participation procedures in.the transportation planning process. Furthermore, EPA believes thatDOT's metropolitan planning regulatioans are the appropriate mechanism for pubaic participation requirements because they address the development ofthe transportation plan md TIP themselves,

notjust the conformity determinations.

The metropolitan planning regulations require the metropolitan transportation planning process,in general to include a proactive public involvement process that provides complete information, timely public notice, full public access to key decisions, andsupports early and continuing public involvement in developing transportation plans and TIPs. The regulations require a minimum public comment period of45 days before the pubhc involvement
process is initially adopted or revised. In serious and above nonattainment

areas, the regulations require a public
comment period ofat least 3Qdays before approval ofplans, TIPs, and major amendments. In nonattainment

area transportation management areas (TMAsl, at least one formal public meeting mustbe herdannually on the development ofthe transportation plan and the TIP.The regulations also require a summary and analysis of

comments and additional opportunities forcomment after significant changes,

as proposed by the conformity NPRM. Publicinvolvement processes must be periodically reviewed by the MPO for effectiveness, andDOT wil) review the .procedures during certification reviews and as otherwise necessary.

The NPRM and the final rule require public participation on project-level conformity determinations only as otherwise required by law (e.g., as part ofthe NEPA process. EPA and DOT expect that project-level conformity determinations will be made as part of theNEPA process.

Because DOw s metropolitan planning regulations require MPOs to establish and publish theirpublic participation procedures, and the conformity rule

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not require public participation procedures to be part ofthe applicable implementation plan.

E. PlanContent

1.Plan Specificity

The NPRM proposed to require transportation plans adopted after January 1, 1995 in serious and above

ozone and COnonattainment areas to specifically describe the transportation system in certain horizon years; in sufficient detail to use atransportation network demand model. EPA received public comment that this provision requires too much specificity for a transportation plan. In particular,
commenters were concerned that there is such uncertainty in 20-year forecasts that the plan and TIP will always be inconsistent in the out-years. Furthermore, some commenters stated that it is difficult to select "best guess" alternatives priorto corridor analyses, and doing so may prejudge alternatives.

The final rule retains the requirements for plan content and separate regional analysis requirements for "specific" plans, as proposed in the NPRM. EPA recognizes the limitations oflong-range planning, and agrees that the long-range transportation plan should be a flexible planning document which does not foreclose consideration ofalternatives. However, EPA wants the conformity demonstration for a transportation plan to show that the area

can develop and model a transportation strategy that is consistent with the SIP's required emission reductions for milestone years, the attainment year, and maintenance in the following years. This demonstrates that an area has developed one transportation system scenario which is consistent with the SIP, and that the area is implementing those activities which must begin now in order to achieve atransportation system consistent with the SIP. The area is free to later choose different alternatives, provided the new transportation plan demonstrates that the new transportation system scenario is also consistent with the SIP (i.e., the revised transportation plan is found to conform).

EPA is emphasizing project-specific transportation plans for serious and above ozone and CO areas, because state-of-the-art transportation network demand modeling requires project detail
to the extent that a regionally significant project affects the speed-capacity relationship, the connectivity ofthe network, and significant alternatives to the use ofsingle-occupant vehicles. EPA recognizes that detailed descriptions of projects in the later years ofthe transportation plan represent assumptions about those future projects, and expects that project descriptions will be modified to reflect information from corridor analyses as areas periodically update their transportation plans. At the time of the project-level conformity determination, if the project's design concept and scope is significantly different from that in the currently conforming transportation plan and TIP, new regional analysis including the project is required.

As EPA explained in the preamble to the NPRM, the transportation system
must be analyzed in the context ofthe transportation plan, because the TIP's timeframe is too short to account for everything in the years the SIP's emissions budgets are addressing. To show that a budget for a future year will be met. it will be necessary to account for all facilities and services expected to be operational in that year, even ifthey

are not yet in the TIP because they do

not yet need tobe started. Where a specific plan is not required by this rule,

one may be otherwise needed to meet the requirements ofISTEA. Wherever a non-specific plan is permissible under both the Clean Air Act and ISTEA, the TIP must show conformity to all future emission budgets, taking into account those projects included in theTIP, any other projects specifically included in the transportation plan, and regionally significant non-federal projects.

2. Timeframe ofthe Transportation Plan

Several commenters requested that transportation plans be required to

cover at least 20 years. The NPRM proposed to require regional emissions analyses to estimate emissions in the last year of the transportation plan's forecast period.

ISTEA requires the metropolitan transportation plan to address a period of at least 20 years. The requirement for

a 20-year forecast period is covered in the DOT metropolitan planning regulations.

F. Relationship of

Planand TIP ConformityWith theNational EnvironmentalPolicy Act (NEPA) Process

EPA received comments suggesting that transportation plans and TIPs should be subject to NEPA. DOT's metropolitan planning regulations already require an analysis of major transportation investments. Under this provision, an appropriate range of alternatives would be analyzed for various factors, including social, economic, and environmental effects. Pending completion ofthe analysis, either one particular alternative version of the project orthe no-build alternative for thecorridor in which the major investment is located would be evaluated as part of the plan and TIP conformity analysis. This corridor/ subarea analysis ofalternatives serves as input to the draft NEPA document.

No Federal approval action is taken

on the transportation plan orTIP, and there is no specific Federal commitment
to fund projects in the plan or TIP. Furthermore, since the financial plans for the plans and TIPs must include all

sources offunds, including State, local, and private sources, it is likely that some ofthe projects included will never be proposed for Federal funding. In view ofthis, it isnot appropriate to extend the NEPA process to transportation plans and TIPs. In any case, doing so would be an action under NEPA, not the Clean Air Act, and is beyond the scope ofthis rulemaking.

G.LatestPlanning Assumptions
EPA proposed that conformity determinations must use the latest planning assumptions. In response to public comment, the final rule explicitly requires key assumptions to be specified and included in the draft documents and supporting materials used during the interagency and public consultation
process.

Some commenters also expressed

concern that conformity determinations
may be using assumptions which are different from the SIP assumptions, because they are more recent. It should be expected that conformity determinations will deviate from the SIP's assumptions regarding VMT growth, demographics, trip generation, etc., because the conformity determinations are required by Cleah AirAct section 176(c)(1) to use the most recent planning assumptions. The final rule does not require, as a commenter suggested, that the conformity determination require an assessment of the degree to which key assumptions in the transportation modeling process are deviating from those used in the SIP, and if the deviations are significant, require an evaluation ofthe impact of the deviation on the area's ability to reach the SIP's emissions target. EPA is not requiring this process because the conformity determinations themselves

are intended to demonstrate that given the most recent planning assumptions and emissions models, the SIP's emissions reductions will bemet. However, States may require such a process in their conformity SIP revisions. 62210 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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The final rule does requirethat ambient temperatures be consistent with those usedin the SIP,and allows other factors assumed in the SIP,such asthe fraction oftravel in ahot stabilized engine mode, to bemodified ina conformity determination only under certain conditions.

H. LatestE~nssions Model

EPA proposed to require a new version ofthe motorvehicle emissions model tobeusedinany conformity analysis begun three months after its release, unless EPA and DOT announce

anextension of the graceperiod inthe Federal Registe.

EPA received comments stating that the grace period was both too longand too short, andrequesting clarification on how the grace period would be extended. EPA andDOT willconsider extending the grace period ifthe effects ofthe new emissions model are so significant that previous SIP demonstrations of what emission levels

areconsistent with attainment would be substantially affecud. In such cases, States should have an opportunity to revise theirSiPs before UPOs must use the model's new emission factors. EPA encourages all agecies to inform EPA ofthe impacts ofnow emissions models in their areas,and EPAmay pause to seek suchinputbefor determining the length of the grace period.

EPAis concerned that theproposal would have considered analyses begun before a new model isreleased orduring the grace period to satisfy the "latest emissions model" criterion indefinitely. Therefore, the final rule provides that a final environmental document may " continue to use the previous versipn of the motor vehicle emissions model provided no more than three years have passed since the draft was issued.

MOBILESa internally bearing the release date ofMarch 26, 1993, Including "MOBIE Information Sheet #2: Estimating IdleEmission Factors Using MOBILE5," is hereby announced by EPA tobethelatestmotor vehicle emissionsmodel outside California. There will be a one-year grace period priorto requireduseofthismodel for CO hot-spot orregional analyses for conformity determinations, beginning November 24, 1993. Future r isions andtheir grace periods willbe announced in theFederalRegister. EPA also hereby announces thatin California,EMFAC7Fis thelatestmotor vehicle emissions model, and thethreemonth grace period foruse of this model begins November 24, 1993. L TCMs , The NPRM proposed torequie timely implementation ofthose TC]U in the SIP which arel ible fortitle 23 U.&C.

or Federal Transit Actfunding, Some.
commentrs stated thatall TCM& should

meet the timely implementation test. regardless oftheir source of funding The final rule retainsthe provisions of theNPRMJ

Clean Air Act section 176(c)(21(B) requires TPs toprovide fortimely implementation ofTCMs. but doesnot define TCMs. The statute is therefore ambiguous with respect to which rCMs

must be implemented, andEPA may take any reasonable interpretatm of the definition ofTCMs. Chevron, v.NRDC, 467 U.S. 837 L1984). Since plans and TIPs can at the most "*provide for" only those pte*cts which reeligible for Federal funding, it is reasonable to define thoseTC s required to be implemented by Clean Air Act section 176(c](2)B) tobeonly those SIP TCMs that ae eligible forFederal funding.
]. RegionalEmissionsAnalysis

1. Regionally Significant Projects

The NPRM defined "regionally significant" to mean a facility with an arterial orhigher functional classification, plus any other facility that serves regional travelneeds (such

as access to and from the area outside ofthe region; tomajor activity centers in the region; or to transportation terminals) andwould normally be included ir the modeling for the transportation network.

EPA received comments indicating that "regionally significant" should be

more clearly defined, perhaps by a quantifiable threshold. Some

commenters believed that "regionally significant" should be definedby the State or air quality agency, that the definition should include only freeways, or that the definition should be based upon air quality impact

The finalrule includes a definition of "regionally significant project" which is substantially similarto that in the NPRM. EPA has been unable to determine a quantifiable threshold that would consistently and appropriately reflect the concept of "regionally significant" and believes it is appropriate to allow flexibility and professional judgment inthe definition of "regionally significant."

In response tocomment that "arterial" isnot a DOT functional classification, thefinal rule specifies that regionally significant includes, at a minimum, all principal arterials. Although EPA believes that some minor arterials are regionally significant, EPA believes that requiring all minor arterials to bemodeled an anetwork model could involve a significant change in current modeling practice. Therefore, the final rule makes the determination ofregionally significant projects atopic ofinteragency consultation, and allows the definition ofregionally significant to beexpanded through this process.The interagency consultation process must specifically address which minorarterials are also regionally significant.

Some commenters pointed out that the NPRM's definition of"regionally significant" reliedon highway terminology, and itWas not clear that transit projects were also coveredby the definition. Therefore,the final rulealso defines anyfixed guideway transit system orextension that offers an alternative to regional highway travel to beregionally significant.

2. Prects Included in the Reginal -EmissionsAnalysis

EPA proposed criteria which required regional emissions analysis ofprojects in the transportation plan and TIPand all other regionally significant projects expected inthe nonattainment or maintenance area. Some commenters expressed concern about projects im the transportation plan and TIP which cannot normally be modeled witha transportation network demand model. The final rule clarifies that emissions from projects which are not regionally significant,but which have oraffect vehicle travel, maybe estimated in accordance withreasonable professional practice. Forexample, theregional emissions analysis may assume that VMT on local streets notrepresented in the network modelis a certain percentage ofnetwork VMT, without explicitly consideringthe new local
streets. In addition toprojects that are not regionally significant, the benefits of TCfsthat cannot be analyzed through the modeling process maybe estimated in accordance with reasonable professional practice.

EPA proposed thatthe regional emissions analysis could not include for emissions reduction credit any TC s which have been delayedbeyond the schedule in the SIP,until implementation has been assured. In
response to public comment, the final rule clarifies that ifaTCM has been partiallyImplemented and it can be demonstrated that it is providing quantifiable emission reduction benefits, the regional analysis may include that emission reduction credit.

The final rule also clarifies that during the control strategy and maintenance periods, control programs 1993 t Rules and Regulatlon&6=11

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which are external to the transportation system itself(e.g:, tailpipe or evaporative emission standards, limits

on gasoline volatility, inspection and maintenance programs, oxygenated or reformulated gasoline or diesel fuel)
may be assumed in the regional emissions analysis only ifthe program has been adopted by a State or local government, ifan opt-in to a Federallyenforced program has been approved by EPA, if EPA has promulgated the program (ifthe control program is a Federal responsibility, such astailpipe standards), or ifthe Clean Air Act requires the program without need for individual State action and without any discretionary authority for EPA to set its stringency, determine its effective date,

or notimplement the program.

The build/no-build test may assume the above programs, butthe same assumptions mustbe made in both the "build" and "no build" case. During the transitional period, control measures or programs which are committed to in a SIP submission which is not yet approved by EPA may be assumed for emission reduction credit when demonstrating consistency with the SIP submission's motor vehicle emissions budget.

3. Modeling Procedures

EPA proposed several attributes which a transportation network demand model must possess. In some cases, EPA specifically did not require certain attributes unless the necessary information was available. Some
commenters believed thatEPA should commit to review the attributes which

were not specifically required. EPA intends to continue to review progress intransportation modeling, and the public can also petition for future rulemaking.

Some commenters expressed concern that the cumulative effect ofnonregionally significant projects is not accounted for in the regional emissions analysis. The NPRM and the finalrule specifically say that reasonable methods shall be used to estimate vehicle travel

on off-network roadways. EPA believes that one such method would be to consider VMT onnon-regionally significant facilities to be some percentage of network VMT. The rule requires documentation of allkey assumptions used inemissions analyses, so there willbe opportunity forpublic review ofhow vehicle travel is considered.

EPA asked for comment on whether serious PM-10 nonattainment areas should be required to use transportation network demand models, as required for serious and above ozone and CO areas. Comments were received on both sides ofthe issue. The final rule does not require network models in PM-10 areas, because EPA believes that the resources

-involved in such modeling efforts may often exceed the benefits in PM-10

areas. In many PM-10 areas, regional PM-10 emissions are due to construction-related fugitive dust and re-entrained dust, for which transportation network demand models may not offer special advantages. Agencies inPM- 10 areas must consult with each other on how to model PM10 emissions.

4.Build/no-build Test

Based on comments received on the interim period regional emissions test, EPA believes it is important to clarify that because both the "build" and "nobuild" scenarios must make the same assumptions regarding fleet turnover, inspection and maintenance programs, reformulated gasoline, etc., emission reductions from these programs and control measures are factored out and the emission reductions from the transportation plans andprograms themselves are isolated.

K.Hot-spotCriteria andAnalysis
EPA proposed to require projects to demonstrate that they eliminate or reduce the severity and number of localized COviolations in CO nonattainment areas. In response to comment, EPA has clarified in the final rule that this criterion applies in the project area. That is, a project is responsible for eliminating orreducing CO violations in the area substantially affected by the project. Ifthere are no localized CO violations and would not be any in the project area, the project satisfies this criterion.

Some commenters also requested clarification onthe hot-spot criteria. EPA intends that the hot-spot analysis
compare concentrations with and without the project based onmodeling ofconditions in the analysis year. The hot-spot analysis is intended to assess possible violations due to the project in combination with changes in
background levels over time. Estimation ofbackground concentrations may take into account the effectiveness of anticipated control measures in the SIP ifthey are already enforceable and creditable in the SIP.

EPA proposed to allow the hot-spot criteria to be satisfied without quantitative hot-spot analysis ifa qualitative demonstration can be made based on consideration oflocal factors. EPA requested comment on cutoffs on project size, geography, or other. characteristics above which quantitative modeling is always required. EPA's November 1992 "Guideline for Modeling Carbon Monoxide from Roadway Intersections" requires for the
purposes of SIP development the quantitative modeling ofall intersections that are Level-of-Service (LOS) D,E, or For that will change to LOS D, E,or Fbecause ofincreased traffic volumes related to a new project in the vicinity. EPA's guidance also requires modeling ofthe top three intersections in the area based on highest traffic volume and the top three intersections based on the worstLOS.

Therefore, the final rule requires that projects involving oraffecting any such intersections must be quantitatively modeled using that EPA guidance. The final rule would still allow qualitative analysis forprojects at other locations if it clearly demonstrates satisfaction of the hot-spot criteria.

EPA also requested comment on when quantitative PM-10 hot-spot modeling is required. The comments EPA received were generally consistent with the approach discussed in the preamble
to the NPRM. Therefore, although the hot-spot criterion in general allows either qualitative or quantitative demonstrations (as discussed above), the final rule explicitly requires quantitative PM-10 hot-spot modeling for projects at siteswithin the area substantially affected by the project at which violations have been verified by monitoring, and at sites which have essentially identical roadway and vehicle emissions and dispersion characteristics (including sites near one at which a violation has been monitored). These sites shallbe identified through interagency consultation. In PM-10 nonattainment and maintenance areas, new or expanded bus terminals and transfer points and commuter rail terminals which increase the number ofdiesel vehicles congregating at a single location will generally require quantitative hot-spot analysis, except in

cases where it can be demonstrated, based on appropriate dispersion modeling for projects of similar size, configuration, and activity levels, that there is no threat ofa violation ofthe PM-10 standard. Conformity determinations on bus purchases (for replacements or minor expansions of the existing fleet) would not have to consider potentialPM-10 hot-spot violations, as discussed in the preamble
to the NPRM, because the incremental improvement inemissions spread over the service area ofa metropolitan transit operator is considered to be ade minimis impact on air quality. Moreover, FrA has no control over how 1993 / Rules and Regulations

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### Federal Register I Vol. 58, No. 225 I Wednesday, November 24, 1993 I Rules and Regulations 

### 62213

these new, cleaner buses are to be deployed in local operations.

Several commenters were concerned about the technical capability to perform PM-10 hot-spot analysis. EPA will be releasing technical guidance on how to use existing modeling tools to perform PM-10 hot-spot analysis. The requirements for quantitative PM-10 hot-spot analysis will not take effect until the Federal Register has announced availability ofthis guidance. Also, FTA plans to issue guidance shortly on PM-10 hot-spot analysis for several common types oftransit projects. This guidance will help project
sponsors determine when quantitative hot-spot analysis is needed and how to perform the analysis.

EPA also requested comment on how
to define "new" violations as opposed
to relocated violations. Commenters did
not propose any such clarification, and

no language on this subject hasbeen added to the final rule. EPA continues
to believe that a seemingly new violation may be considered to be a relocation and reduction ofan existing violation only ifit were in the area substantially affected by theproject and ifthe predicted design value for the "new" site would be less than the design value at the "old" site without the project-that is, ifthere would be a net air quality benefit.

Although no comment wasreceived

on the subject, problems may arise with respect to projects which dispersion modeling predicts to have a range ofair quality effects in the "area substantially affected by the project." Aproject may, for example, reduce existing concentrations at several receptors while increasing concentrations at others.

EPA plans to issue guidance which would clarify the concept of "the area substantially affected by the project" and allow conformity demonstrations to distinguish between new and relocated violations. For example, while EPA believes that a "new" violation within the same intersection as an existing violation could be considered a relocation, whether a new violation miles from the existing violation should likewise be considered to be "relocated"

as a result ofchanged traffic patterns is

a question EPA will seekto address in this post-rule guidance. Interested parties are invited to provide their views to EPA for consideration.

L. ExemptProjects

EPA proposed a list ofprojects which, because they had no emissions impact,

were considered to be neutral or de minimis and therefore should be exempt from conformity requirements. EPA received no comments opposing an exempt project list, but received a number ofcomments suggesting both additions and deletions to it.

EPA agrees with commenters that emergency truck pullovers, directional and informationalsigns, and transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities) are emissions neutral, and the final rule exempts these types of projects. Transportation enhancement activities are defined by ISTEA as "provision of facilities for pedestrians and bicycles, acquisition of scenic easements and scenic or historic sites, scenic orhistoric highway programs, landscaping and other scenic beautification, historic preservation, rehabilitation and operation ofhistoric transportation buildings, structures or facilities (including historic railroad facilities and canals), preservation of abandoned railway corridors (including theconversion and use thereoffor pedestrian orbicycle trails), control and removal ofoutdoor advertising, archaeological planning and research, and mitigation of water pollution due to highway runoff."

The final rule also exempts repair of damage from natural disasters, civil unrest, orterrorist acts, except for projects involving substantial functional, locational, or capacity changes. Finally, the final rule also exempts specific activities which do not involve or lead directly to construction, such asplanning and technical studies, grants for training and research programs, planning activities conducted pursuant to titles 23 and 49 U.S.C., and Federal-aid systemsrevisions. These activities do not contribute to emissions, and they do not fall under the definition ofconstruction or a project under 23 U.S.C. 101(a).

Because intersection signalization projects which are systemwide may have regional emissions impacts, EPA has clarified that only intersection signalization projects at individual intersections are exempt from regional emissions analysis. As proposed in the NPRM, however, all intersection signalization projects in CO and PM-10

areas are required to have a determination regarding their localized air quality impacts.

The final rule clarifies that in PM-10 nonattainment and maintenance areas, rehabilitation ofbusesand purchase of

new buses to replace existing vehicles

orfor minor expansions ofthe fleet are exempt projects only if they are in compliance with the SIP's control

measures involving such projects (if any). For example, if the SIP specifies that new buses will be alternatively fueled, purchases of diesel buses would
not be exempt.

EPA agrees with commenters that deletion ofridesharing and vanpooling promotion activities would have emissions impacts. However, deletion of these activities would not be exempt under the NPRM or final rule because it is not "continuation ofridesharing and vanpooling promotion activities at current levels."

Some commenters asserted that operating assistance to transit agencies should not be exempt, EPAbelieves that operating assistance should remain exempt because FTA has no control

over how operating assistance is used locally, and because increases or decreases in operating assistance at the Federal level may be balanced by new

sources ofrevenue at the State and local level. To the extent that the local cooperative planning process influences the level ofoperating assistance, the increase or decrease in operating assistance is necessarily offset by changes in capital assistance for transit in the same metropolitan area. Therefore, the net effect on financing for transit should be neutral. However, the final rule does require conformity determinations to use and document the latest assumptions regarding transit operating policies and assumed transit ridership.

A number ofcommenters proposed exempting other types ofprojects from the conformity requirements, notably travel demand management actions whose air quality effects cannot be accurately assessed in a regional modeling context. The objective in implementing a program orproject involving travel demand management is
to achieve measurable reductions in congestion and vehicle emissions within a corridor or at a specific site; thus, it is not appropriate to exempt such programs or projects from conformity requirements. The final rule does state that ifthe effects ofthese projects cannot be discerned through traditional regional travel demand modeling, other accepted methods of quantifying their effects are encouraged.

Some commenters requested clarification ofprojects on the exempt list. EPA intends that intersection charinelization include left-turn/rightturn slots and continuous left turn lanes, as well as those lanes/movements that are physically separated. Advance land acquisitions (23 CFR part 712 or 23 CFR part 771) are a parcel or limited number ofparcels which are acquired to protect a property from imminent development and increased costs which would tend to limit a choice of Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62213

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transportation alternatives, or are acquired to alleviate particular hardship
to a property owner at his orher request. This is only allowed in
emergency or extraordinary cases, and only after the State department of transportation has given official notice
to the public that a preferred highway

ortransit location has been selected, held a public hearing, or provided an opportunity for apublic hearing.

VI. Environmental and Health Benefits

This rule will help ensure that the implementation plan achieves itsgoal of attaining air quality standards. The environmental and health benefits of attaining the national ambient air quality standards are attributable to the strategies contained in the implementation plan rather than to this rule directly.

VII. Economic Impact

The primary impact ofthis rule involvesthe increased requirements for MPOs to perform regional transportation and emissions modeling and document the regional air quality impacts of transportation plans and programs. Because conformity requirements have existed in some form since 1977, the framework for consultation and TCM tracking has already been established.

The impact ofthisrule on MPOs may vary widely depending on the pollutant for which an area is in nonattainment, the classification ofthe nonattainment

area, the population ofthe area, and the technical capabilities already developed in the area.

ADOT survey in September 1992 of MPOs in 98 ozone nonattainment areas indicated that during Phase Iof the interim period, most MPOs are spending less than $50,000 for a conformity determination on the transportation plan and TIP. Ofthe 68 MPOs responding, 76% are spending less than $50,000, 21%are spending between $50,001 and $100,000, and 3% are spendingbetween $100,001-250,000. MPOs serving populations over one million had clearly higher conformity
costs than MPOs serving smaller populations.

Conformity determinations are required whenever atransportation plan

orTIP is adopted oramended. DOT's metropolitan planning regulations at 23 CFR part 450 require transportation plans to be reviewed and updated at least every three years in nonattainment and maintenance areas, and they require TIPs to be updated at least every two years.

The conformity rule also requires periodic redetermination ofconformity for transportation plans and TIPs at least every three years. However, because DOT's metropolitan planning regulations require new transportation plans and TIPs at least that often, the conformity rule's provisions for periodic redetermination should not impose any

new burden.

Finally, the conformity rule requires a conformity determination for the transportation plan within 18 months after EPA approves a SIP revision which affect TCMs orthe motor vehicle emissions budget.

Transportation projects also require conformity determinations. In ozone and NO 2nonattainment areas, the conformity requirements are satisfied provided the project is included in a current, conforming transportation plan and TIP. Ifthe project is not included in thetransportation plan and TIP, a regional emissions analysis including the transportation plan, TIP, and project
must be performed. In CO and PM-10 nonattainment areas, project-level conformity determinations also require

a hot-spot analysis. This analysis of localized impacts is performed as part of the existing NEPA process.

There are approximately 300 ozone, CO. N02, and PM-10 nonattainment

areas. Because some areas are in nonattainment for more than one pollutant, there are about 250 individual nonattainment areas which are required
to perform conformity determinations. EPA expects that areas will determine conformity for TIPs annually, and in general, areas will determine conformity for transportation plans once every three years.

Ifit is assumed thatthe ozone areas surveyed by DOT in September 1992 are representative ofall nonattainment

areas, the estimated total annual conformity costs forthenation's transportation plans and TIPs is $16,625,000. This is a preliminary estimate based on the requirements contained in the interim conformity guidance EPA and DOT are solicity further information from MPO's which will beused in the preparation ofthe information collection request (see VIII. B.Reporting and Recordkeeping Requirements) subsequent to the publication ofthis rule.

These estimates do not necessarily reflect the costs which will result from this final rule. On one hand, these may be overestimates ofthe costs, because determinations will probably become less expensive as the MPOs gain experience. For example, for future determinations it may be possible to perform the modeling with fewer runs. On theother hand, these estimates do
not reflect the more specific requirements ofthis rule and may therefore underestimate the cost of determinations in thecontrol strategy period. EPA welcomes reports from MPOs on the costs of making conformity determinations on plans and TIPs according to the requirements of this rule.

Because ISTEA and other CAA provisions also directly orindirectly require increased modeling, it is difficult to entirely separate the costs attributable to the conformity requirements alone. For example, ISTEA assigns more responsibility to the MPOs and shifts the planning focus to intermodalism and congestion management. This will require more sophisticated transportation modeling. The VMT tracking and forecasting requirements in sections 182 and 187 of the CAA will also promote the use of transportation demand network models in some nonattainment areas.

In addition, although the conformity requirements may prompt additional data collection and model development, these costs cannot be solely attributed to conformity. It is an ongoing responsibility ofMPOs to review and upgrade their analysis capabilities to reflect the most recentunderstanding of travel demand and transportation forecasting. Resource constraints during the 1980's prevented many MPOs from updating their analysis procedures, so conformity is in many cases simply raising the priority ofmodeling improvements.

Metropolitan planning is eligible for funds under ISTEA. In addition, EPA has attempted to minimize the costs of conformity in several ways. First, EPA is establishing flexible methodological requirements for regional analyses in

areas which do not use network models in orderto accommodate the varying technical capabilities ofMPOs. In addition, by designating projects which

are exempt from conformity determinations or regional analyses, EPA is allowing project sponsors to

conserve theiranalysis resources. Finally, EPA has attempted to minimize the frequency ofconformity redetermination by requiring periodic redetermination only every three years (which is the longest period allowed by the Clean AirAct), by limiting the number oftriggers for redetermination, and by allowing grace periods before the

use ofnew emissions models and following an area's reclassification.

VIII. Administrative Requirements

A. AdministrativeDesignation

Executive Order 12866

Under Executive Order 12866, (58 FR 51735 (October 4, 1493)) the Agency

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must determine whether the regulatory action is "significant" and therefore subjectto OMB review and the requirements ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
toresult in a rule that may:

(1)Have an annual effect on the
economy of$100 million ormore or adversely affect in a material way the
economy, a sector ofthe economy, productivity, competition, jobs, the environment, public health orsafety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken * orplanned by another agency;

(3) Materially alter the budgetary impact ofentitlements, grants, user fees,

or loan programs or the rights and obligations ofrecipients thereof; or

(4) Raise novel regal or policy issues arising out oflegal mandates, the President's priorities, or the principles
set forth in the Executive Order.

Pursuant to the terms ofExecutive Order 12866, it has been determined that this rule is a "significant regulatory action". As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations willbe documented inthe public record.

B.Reportingand Recordkeeping Requirements

This rule does notcontain any information collection requirements from EPA which require approval by the Office ofManagement and Budget (OMB) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 etseq.DOT will be preparing an information collection request subsequent to the publication ofthisrule.

C.Regulatory Flexibility Act
The Regulatory Flexibility Act of1980 requires federal agencies to identify potentially adverse impacts offederal regulations upon small entities.In instances where significant impacts are possible on a substantial number of these entities, agencies are required to perform a Regulatory Flexibility Analysis (RFA).

EPA has determined that today's regulations will not have a significant impact on a substantial numberof small entities.This regulation willaffect Federal agencies and metropolitan planning organizations, which by definition are designated only for metropolitan areas with a population of
at least 50,000.

Recipients oftitle 23 U.S.C. or Federal Transit Act funds must determine that theirhighway and transit projects are included in a conforming transportation * plan and TIP, or aregional emissions analysis including the project, transportation plan, and TIP must demonstrate that the transportation plan and TIP would still conform if the project were implemented. Because MPOs are responsible for performing regional emissions analysis which includes all such projects, and because DOT's metropolitan planning regulations at 23 CFRpart 450 already require such projects to be included in the transportation plan, and in the TIP for informational purposes, this requirement does not pose a significant burden for small entities.

Potential delays in highway construction that may result from the need to make positive conformity determinations as required by this rule could appear to adversely affect small entities that may be relying upon future highway construction to provide them with certain benefits. However, any such delays would merely preserve the
status quo, and would not limit any benefits currently available to small entities.

Therefore, as required under section 605 ofthe Regulatory Flexibility Act, 5 U.S.C. 601 etseq., Icertify that this regulation does nothave a significant impact ona substantial number of small entities.

List ofSubjects

40 CFRPart 51
Environmental protection, Administrative practice andprocedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

40CFRPart 93
Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Ozone.

Dated: November 15, 1993. Carol M. Browner, Administrator.

Forthe reasons setout inthe preamble, title 40, chapter I ofthe Code of Federal Regulations is amended as follows:

PART 51--[AMENDED]

1. The authority citation for part 51 continues to read as follows:

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

2. Part 51 is amended by adding a
new subpart Tto read as follows: SubpartT-Conformity to State or Federal Implementation Plans ofTransportation Plans, Programs, and Projects Developed, Funded or Approved Under Title 23 U.S.C.

or the Federal Transit Act

Sec. 51.390 Purpose. 51.392 Definitions. 51.394 Applicability. 51.396 Implementation plan revision. 51.398 Priority. 51.400 Frequency ofconformity determinations. 51.402 Consultation. 51.404 Content oftransportation plans. 51.406 Relationship oftransportation plan and TIPconformity with the NEPA

process. 51.408 Fiscal constraints for transportation plans and TIPs. 51.410 Criteria and procedures for determining conformity oftransportation plans, programs, andprojects: General. 51.412 Criteria and procedures: Latest planning assumptions. 51.414 Criteria and procedures: Latest emissions model. 51.416 Criteria andprocedures: Consultation. 51.418 Criteria and procedures: Timely implementation ofTCMs. 51.420 Criteria and procedures: Currently conforming transportation plan and TIP. 51.422 Criteria andprocedures: Projects from a plan and TIP. 51.424 Criteria andprocedures: Localized COand PM1 oviolations (hotspots). 51.426 Criteria and procedures: Compliance -ith PMto control measures. 51.428 Criteria andprocedures: Motor vehicle emissions budget (transportation plan). 51)430 Criteria and procedures: Motor vehicle emissions budget (TIP). 51.432 Criteria andprocedures: Motor vehicle emissions budget (project not from aplan and TIP). 51.434 Criteria and procedures: Localized COviolations (hot spots)in the interim period. 51.436 Criteria andprocedures: Interim period reductions in ozone and CO areas (transportation plan). 51.438 Criteria andprocedures: Interim period reductions in ozozre and CO areas (TIP). 51.440 Criteria andprocedures: Interim period reductions for ozone and CO

areas (project not from a plan and TIP). 51.442 Criteria and procedures: Interim period reductions for PMo and NO 2
areas (transportation plan). 51.444 Criteria and procedures: Interim period reductions for PMo and NO2
areas (TIP). 51.446 Criteria andprocedures: Interim period reductions for PMio and NO2 areas (project not from a plan and TIP). 51.448 Transition from the interim period to the control strategy period. 51.450 Requirements for adoption or approval ofprojects by other recipients offunds designated under title 23 U.S.C.

orthe Federal Transit Act. 51.452 Procedures for determining regional transportation-related emissions. 1993 / Rules and Regulations 62215

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Sec. 51.454 Procedures fordetermining localized CO and PM1oconcentrations (hot-spot analysis). 51.456 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission). 51.458 Enforceability ofdesign concept and scope andproject-level mitigation and control measures. 51.460 Exempt projects. 51.462 Projects exempt from regional emissions analyses. 51.464 Special provisions for nonattainment

areas which are not required to demonstrate reasonable further progress and attainment.

Subpart T-Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Projects Developed, Funded or Approved Under Title23 U.S.C. orthe Federal Transit Act

§51.390 Purpose.

The purpose ofthis subpart is to implement section 176(c) ofthe Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the related requirements of23 U.S.C. 109(j), with respect to the conformity of transportation plans, programs, and projects which are developed, funded,

or approved by the United States Department of Transportation (DOT), and by metropolitan planning organizations (MPOs) or other recipients offunds under title 23 U.S.C. orthe Federal Transit Act (49 U.S.C. 1601 et seq.). This subpart sets forth policy, criteria, and procedures for demonstrating and assuring conformity ofsuch activities to an applicable implementation plan developed pursuant to section 110 and Part D of the CAA.

§51.392 Definitions.

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

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

CAA means the Clean Air Act, as amended.

Causeorcontributeto anew 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 ofthe 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 ofa new violation
ofa standard in such area. Controlstrategyimplementation plan revisionis the applicable implementation plan which contains specific strategies for controlling the emissions ofand reducing ambient levels ofpollutants in order to satisfy CAA requirements for demonstrations of reasonable further progress and attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and 192(b), for nitrogen dioxide).

Controlstrategy periodwith respect to particulate matter lessthan 10microns in diameter {PMo), carbon monoxide (CO), nitrogen dioxide (NO 2 ), and/or

ozone precursors (volatile organic compounds and oxides ofnitrogen),

means that period oftime after EPA approves control strategy implementation plan revisions containing strategies forcontrolling PM10, NO2,CO, and/or ozone, as appropriate. This period ends when a State submits and EPA approves a request under section 107(d) ofthe CAA forredesignation to an attainment area.

Designconceptmeansthe type of facility identifiedbythe project, e.g., freeway, expressway, arterial highway, grade-separated highway, reserved rightof-way rail transit,mixed-traffic rail transit, exclusive busway, etc.

Designscopemeans the design aspects which will affect the proposed facility's impact onregional emissions, usually as they relate to vehicle or person carrying capacity and control, e.g., number oflanes or tracks to be constructed or added, length ofproject, signalization, access control including approximate number and location of interchanges, preferential treatment for high-occupancy vehicles, etc.

DOTmeans the United States Department of Transportation.

EPA means the Environmental Protection Agency.

FHWA means the Federal Highway Administration ofDOT.

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

FTA means the Federal Transit Administration ofDOT.

Forecast periodwith respect to a transportation plan is the period covered by the transportation plan pursuant to 23 CFRpart 450.

Highway projectis an undertaking to implement or modify a highway facility

or highway-related program. Such an undertaking consists ofall required phases necessary for implementation. For analytical purposes, it must be defined sufficiently to:

(1) Connect logical termini and be of sufficient length to address environmental matters on abroad 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.

Horizonyearis a year for which the transportation-plan describes the envisioned transportation system according to §51.404.

Hot-spotanalysisis an estimation of likely future localized CO and PM1o pollutant concentrations and a comparison ofthose concentrations to the national ambient air quality standards. Pollutant concentrations to be estimated should bebased on the total emissionsburden which may result from the implementation ofa single, specific project, summed together with future background concentrations (which can be estimated using the ratio offuture to current traffic multiplied by the ratio offuture to
current emission factors) expected in the area. The total concentration must be estimated and analyzed at appropriate receptor locations in the

area substantially affected by the project. Hot-spot analysis assesses impacts on a scale smaller than the entire nonattainment ormaintenance

area, including, for example, congested roadway intersections and highways or transit terminals, and uses an air quality dispersion model to determine the effects ofemissions on air quality.

Incompletedataareameans any

ozone nonattainment area which EPA has classified, in 40 CFR part 81, as an incomplete data area.

Increasethe frequency orseverity

means to cause a location or region to exceed a standard more often or to cause

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## 1 Rules and Regulations 62217

aviolation at agreater concentration than previously existed and/or would otherwise exist during the future period in question, ifthe project were not implemented.

ISTEA means theIntermodal Surface Transportation Efficiency Act of 1991.

Maintenanceareameans any geographic region oftheUnited States previously designated nonattainment pursuant to theCAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement to develop a maintenance plan under section 175A ofthe CAA, asamended.

Maintenance period with respectto a pollutant orpollutant precursor means that period oftimebeginning when a State submits andEPA approves a request under section 107(d) ofthe CAA for redesignation to an attainment area, and lasting for20 years,unless the applicable implementation plan specifies that themaintenance period shall lastformore than 20 years.

Metropolitan planningorganization (MPO) isthat organization designated as being responsible, together with the State, forconducting the continuing, cooperative, and comprehensive planning process under 23 U.S.C. 134 and 49 U.S.C. 1607. Itis the forum for cooperative transportation decisionmaking.

Milestonehas the meaning given in section 182igl)( and section 189(c) of theCAA. A milestone consists ofan emissions level and the date on which it is required to be achieved.

Motorvehicleemissionsbudgetis that portion ofthe total allowableemissions defined in a revision to the applicable implementation plan (or in an implementation plan revision which

was endorsed by the Governor or hisor her designee, subjectto apublic hearing, and submitted toEPA, but not yet approved by EPA) for a certain date for the puipose ofmeeting reasonable further progress milestones or attainment ormaintenance * demonstrations, for any criteria pollutant or its precursors, allocated by the applicable implementation plan to highway and transit vehicles. The applicable implementation plan for an

ozone nonattainment areamay also designate amotor vehicleemissions budget for oxides of nitrogen (NO.) for

a reasonable further progress milestone
yeariftheapplicable implementation plan demonstrates that this NO. budget will be achieved with measures inthe implementation plan (asan implementation plan mustdo for VOC milestone requirements). The applicable implementation plan foran ozone nonattainment area includesa NOx budget ifNOx reductionsare being substituted forreductions in volatile organic compounds in milestone years required forreasonable further progress.

Nationalambientairquality standards (NAAQS) are those standards established pursuant to section 109 of theCAA.

NEPAmeans the National Environmental Policy Act of 

### 1969, as amended (42U.S.C. 4321 et seq).

NEPA process completion,for the
purposes ofthis subpart, with respect to FHWA orFTA, means the point at whichthere is a specific action to make

a determination that a project is categorically excluded, to make a Finding ofNo Significant Impact, or to issue a record ofdecision on aFinal Environmental Impact Statement under NEPA.

Nonattainmentareameans any geographic region ofthe United States which hasbeen designated as nonattainment under § 107 ofthe CAA for any pollutant forwhich a national ambient air quality standard exists.

Notclassifiedareameans any carbon monoxide nonattainment area which EPA has-notclassified aseither moderate or serious.

PhaseII ofthe interim periodwith respect toapollutant orpollutant
precursor means that period oftime after the effective date of thisrule, lasting untilthe earlier ofthe following:

(1)Submission toEPA ofthe relevant control strategy implementation plan revisions which have been endorsed by theGovernor (orhis or herdesignee) and havebeen subject to a public hearing, or (2) Thedatethat theClean Air Act requires relevantcontrol strategy implementation plans to be submitted to EPA,provided EPA has notified the State,MPO, and DOTofthe State's failure to submit any such plans. The precise end ofPhase H ofthe interim period is defined in §51.448.

Projectmeans a highway projector transitproject.

Recipientoffunds designated under title23 U.S.C. ortheFederalTransit Act

means any agency at any level ofState, county, city,or regional government that routinely receives title 23 U.S.C. or Federal TransitAct funds to construct FHWA/FTA projects, operate FHWA/ FTAprojects or equipment, purchase equipment, orundertake other services

oroperations via contracts or agreements. This definition does not include private landowners or developers, or contractors orentities thatare only paid forservices or products created bytheirown employees.

Regionallysignificant projectmeans a transportation project (other than an exempt protect) that is on a facility which serves regional transportation needs(such asaccess to and fromthe

area outside oftheregion, major activity
centers in the region,major planned developments such as new retail malls, sports complexes, etc., or transportation terminals as well as mostterminals themselves) and would normally be included in the modeling ofa metropolitan area's transportation network, including at a minimumall principal arterial highways and all fixed guideway transit facilities that offer an alternative toregional highway travel.

Ruraltransport ozone nonattainment

areameans an ozQne nonattainment

area that does not include, and is not adjacent to, any part ofa Metropolitan Statistical Area or,where one exists, a Consolidated Metropolitan Statistical Area (as defined by the United States Bureau ofthe Census) and is classified underClean Air Actsection 182(h) as a rural transport area.

Standard means a national ambient air quality standard.

Submarginal areameans any ozone nonattainment area which EPA has classified as submarginal in 40CFR part 81.Transitis mass transportation bybus,' rail, or other conveyance which provides general orspecial service to the public on aregularand continuing basis. It does not include schoolbuses

orcharter or sightseeing services.

Transitproject is an undertaking to implement ormodify atransit facility or transit-related program; purchase transit vehicles or equipment; or provide financialassistance for transit operations. It does not include actions that are solelywithin thejurisdiction of local transit agencies, such as changes in routes, schedules, or fares. It may consist ofseveral phases. For analytical
purposes, it mustbe defined inclusively enough to:

(1)Connect logical termini and be of sufficient length to address environmental matters on abroad 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

13) Not restrictconsideration of alternatives for otherreasonably foreseeable transportation improvements. Transitional areameans any ozone nonattainment area which EPAhas classified as transitional in40 CFR part 81.

Transitional periodwithrespect to a pollutant or pollutant precursor means thatperiod oftime which begins after submission to EPA ofthe relevant Federal Register I Vol. 58, No. 225 / Wednesday, November 24., 1993 / Rules and Regulations 62217

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control strategy implementation plan which has been endorsed by the Governor (orhis or her designee) and has been subject to a public hearing. The transitional period lasts until EPA takes final approval ordisapproval action on the control strategy implementation plan submission or finds it to be incomplete. The precise beginning and end of the transitional period is defined in §51.448.

Transportationcontrolmeasure (TCM) is any measure that isspecifically identified and committed to in the applicable implementation plan that is either one ofthe types listed in §108 of the CAA, or any other measure for the
purpose ofreducing 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 ofthis subpart.

Transportationimprovement program (TIP)means a staged, multiyear, intermodal program oftransportation projects covering a metropolitan planning area which is consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR part 450. Transportation planmeans the official intermodal metropolitan transportation plan that is developed through the metropolitan planning process for themetropolitan planning

area, developed pursuant to 23 CFR part 450.

. Transportation projectis a highway project ora transit project.

§51.394 Applicability.

(a) Action applicability. (1)Except as provided for in paragraph (c)ofthis section or §51.460, conformity determinations are required for:

(i)The adoption, acceptance, approval

or support oftransportation plans developed pursuant to 23 CFR part 450

or 49 CFR part 613 by an MPO orDOT;

(ii) The adoption, acceptance, approval or support ofTIPs developed pursuant to 23 CFRpart 450 or 49 CFR part 613 by an MPO orDOT; and

(iii) The approval, funding, or implementation ofFHWA/FTA projects. (2) Conformity determinations are not required under thisrule for individual projects which are notFHWA/FTA projects. However, §51.450 applies to such projects ifthey areregionally significant.

(b) Geographic applicability. (1)The provisions.ofthis subpart shall apply in all nonattainment and maintenance

areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan.

(2) The provisions ofthis subpart apply with respect to emissions ofthe following criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, and particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM O).

(3) The provisions ofthis subpart apply with respect to emissions ofthe following precursor pollutants:

(i) Volatile organic compounds and nitrogen oxides in ozone areas (unless the Administrator determines under section 182(n ofthe CAA that additional reductions ofNOx would not contribute
to attainment);

(ii) Nitrogen oxides in nitrogen dioxide areas; and

(iii) Volatile organic compounds, nitrogen oxides, and PMIO in PMIO areas if:(A) During the interim period, the EPA Regional Administrator or the director ofthe State air agency has made

a finding that transportation-related
precursor emissions within the nonattainment area are a significant contributor to the PMI) nonattainment problem and has so notified the MPO and DOT; or

(B) During the transitional, control strategy, and maintenance periods, the applicable implementation plan (or implementation plan submission) establishes abudget for such emissions

as part ofthe reasonable further
progress, attainment ormaintenance strategy.

(c) Limitations.(1) Projects subject to this regulation for which the NEPA
prqcess and a conformity determination have been completed by FHWA or FTA
may proceed toward implementation without further conformity determinations ifone ofthe following major steps has occurred within the past three years: NEPA process completion;

start offinal design; acquisition ofa significant portion ofthe right-of-way; or approval ofthe plans, specifications and estimates. All phases of such projects which were considered in the conformity determination are also included, ifthose phases were for the
purpose offunding, final design, rightof-way acquisition, construction, or any combination ofthese phases.

(2) A new conformity determination for the project will be required ifthere 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 past three years.
§51.396 Implementation plan revision.

(a) States with areas subject to this rule must submit to the EPA and DOT

a revision to their implementation plan which contains criteria and procedures forDOT, MPOs and other State or local agencies to assess the conformity of transportation plans, programs, and projects, consistent with these regulations. This revision is to be submitted by November 25, 1994 (or within 12 months ofan area's redesignation from attainment to nonattainment, ifthe State has not previously submitted such a revision). EPA will provide DOT with a 30-day
comment period before taking action to approve or disapprove the submission. A State's conformity provisions may contain criteria and procedures more stringent than the requirements described in these regulations only if the State's conformity provisions apply equally to non-federal as well asFederal entities.

(b)The Federal conformity rules under this subpart and 40 CFR part 93, in addition to any existing applicable State requirements, establish the conformity criteria and procedures necessary to meet the requirements of Clean AirAct section 176(c) until such time as the required conformity implementation plan revision is approved by EPA. Following EPA approval ofthe State conformity provisions (ora portion thereof) in a revision to the applicable implementation plan, the approved (or approved portion ofthe) State criteria and procedures would govern conformity determinations and the Federal conformity regulations contained in 40 CFR part 93 would apply only for the portion, ifany, ofthe State's conformity provisions that isnot approved by EPA. In addition, any previously applicable implementation plan requirements relating to conformity remain enforceable until the State revises its applicable implementation plan to specifically remove them and that revision is approved by EPA.

(c)Tobe approvable by EPA, the implementation plan revision submitted
to EPA and DOTunder this section shall address all requirements ofthis subpart in a manner which gives them full legal effect. In particular, the revision shall incorporate the provisions ofthe following sections ofthis subpart in verbatim form, except insofar as needed
to give effect to a stated intent in the revision to establish criteria and procedures more stringent than the requirements stated in these sections:

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§§ 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 51.412, 51.414,51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 51.430, 51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444. 51.446, 51.448, 51.450, 51.460, and 51.462.

§51M8 Priority.

When assisting or approving any action with air quality-related
consequences, FHWA and FTA shall give priority totheimplementation of those transportation portions ofan applicable implementation plan prepared to attain and maintain the NAAQS. Thispriority shallbe consistent with statutory requirements for allocation offunds among States or other jurisdictions. §51.400 Frequency of conformity detenrminaons.

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



### (b) Transportation plans.(1)Each

newtransportation planmust be found to conform before the transportation plan is approved by theMPO or accepted by DOT.

(2)All transportation plan revisions
mustbe found to conform before the transportation plan revisions are approved by MPO or accepted by DOT, unless the revision merely adds or deletes exempt projects listed in §51.460. The conformity determination
must bebased on the transportation plan andthe revision taken as awhole.

(3)Conformity ofexisting transportation plans mustbe redetermined within 18 months ofthe following, orthe existing conformity determination will lapse:

(i) November 24, 1993; (ii)EPA approval ofan implementation plan revision which:

(A)Establishes orrevises a transportation-related emissions budget (asrequired byCAA sections 175A(a), 182(b)(1), 182(c)(2)(A), 182(cXZXB), 187(a)(7), 189(aX1)(B)f and 189(b)(1XA); and sections 192(a) and 192(b), for nitrogen dioxide); or

(B) Adds, deletes,orchanges TCMs; and

(iii)EPApromulgation ofan implementation plan which establishes

orrevises atransportation-related emissions budget or adds, deletes, or changes ToCs. (4) Inany case, conformity determinationsmust bemade no less frequently thanevery three years,or the existing conformity determination will lapse. (c) Transportation improvement
programs. (1)A new TIP mustbe found
to conform before the TIPis approved by theMPO or accepted byDOT.

(2) A TIP amendment requires a new conformity determination for theentire TIPbefore the amendment is approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listedin § 51.460.

(3)After an MPOadopts anew or revised transportation plan, conformity
mustberedetermined by the MPO and DOTwithin sixmonths from the date of adoption ofthe plan, unless the newor revised planmerely adds or deletes exempt projects listed in § 51.460. Otherwise, the existing conformity determination forthe TIP willlapse.

(4).In any case,conformity determinations mustbemade no less frequently than every three years or the existing conformity determination will lapse.

id) Projects. FHWA/FTA projects
mustbe foundto conform before they

are adopted, accepted, approved, or funded. Conformity must be redetermined for anyFHWA/FTA project ifnone ofthe following major steps has occurred within the past three
years: NEPA process completion; start of final design; acquisition ofa significant portion ofthe right-of-way; or approval ofthe plans, specifications and estimates.
§51.402 Consultation.

(a) General. The implementation plan revision required under § 51.396 shall include procedures forinteragency consultation (Federal, State, and local) and resolution ofconflicts.

(1)The implementation plan revision shall include procedures to be undertaken byMPOs, State departments of transportation, and DOTwith State and local airquality agencies and EPA before making conformity determinations, andby State and local air agencies andEPA withMPOs, State departments of transportation, and DOT in developing applicable implementation plans.

(2) Before the implementation plan revision is approvedby EPA, MPOsand State departments oftransportation before making conformity determinations must provide reasonable opportunity for consultation with State air agencies, local airquality and transportation agencies, DOT, andEPA, including consultation on the issues described in paragraph (c)(1) ofthis section. b)Interagency consultation procedures: General factors.(1)States shall providein the implementation plan well-defined consultation procedures whereby representatives of the

### MPOs, State and local airquality planning agencies, State and local transportation agencies, and other organizationswith responsibilities for developing, submitting, or implementing provisions ofan implementation plan required by the CAA mustconsult with each other and with local or regional offices ofEPA, FHWA, and FTA on the development of the implementation plan,the transportation plan.the TIP, and associated conformity determinations.

(2) Interagency consultation procedures shall include at a minimum the general factors listedbelow and the specific processes in paragraph fc) of this section: i)The roles andresponsibilities assigned to each agency at each stage in the implementation plandevelopment
process and the transportation planning
process, including technical meetings;

(ii) Theorganizational level of regular consultation; iii) A process for circulating (or providing ready access tol draft documents and supporting materials for
commentbefore formal adoption or publication;

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

(v) A process forresponding to the significant comments ofinvolved agencies; and

(vi)A process for the development of

a list of theTCMswhich are inthe applicable implementation plan.

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

(1)A process involving the MPO, State and local air qualityplanning agencies, State and local transportation agencies, EPA,andDOT forthe following.

(i)Evaluating and choosing amodel (or models)and associated methods and assumptions tobeused inhot-spot analyses andregional emissions analyses; (ii) Determining which minorarterials. and other transportation projects should be considered "regionally significant" for thepurposes of regional emissions analysis (in addition tothose functionally classified as principal arterial orhigher or fixed guideway systems orextensions thatoffer an alternative to regional highway travel), and which projects should be considered to have a significant change in designconcept and scope from the transportation plan or TIP; 

### Federal Registe / Vol. 58,

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(iii) Evaluating whether projects otherwise exempted from meeting the requirements ofthis subpart (see §§ 51.460 and 51.462) should be treated

as non-exempt incases where potential adverse emissions impacts may exist for
any reason;

(iv) Making a determination, as required by §51.418(c)(1), whether past obstacles to implementation ofTCMs which arebehind the schedule established in the applicable implementation plan have been identified and arebeing overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval or funding forTCMs. This
process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs

or substitute TCMs orother emission reduction measures;

(v) Identifying, as required by §51.454(d), projects located at sites in PM~o 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 PMto hot-spot analysis; and

(vi) Notification oftransportation plan

or TIPrevisions oramendments which merely add or delete exempt projects listed in §51.460. (2) A process involving the MPO and State andlocal air quality planning agencies and transportation agencies for the following:

(i)Evaluating events which will trigger new conformity determinations in addition to those triggering events established in §51.400; and

(ii) Consulting on emissions analysis for transportation activities which cross theborders ofMPOs ornonattainment

areas or airbasins.

(3) Where the metropolitan planning

area does notinclude the entire nonattainment ormaintenance area, a process involving theMPO and the State department oftransportation for cooperative planning and analysis for purposes ofdetermining conformity of all projects outside the metropolitan

area and within the nonattainment or maintenance area.

(4) A process to ensure that plans for construction ofregionally significant projects which arenot FHWA/FTA projects (includingprojects forwhich alternative locations, design concept and scope, or the no-build option are still being considered), including those by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to ensure that any changes to those plans are immediately disclosed;

(5)A processinvolving the MPO and other recipients of funds designated under title 23 U.S.C. orthe Federal Transit Act for assuming the location and design concept and scope of projects which are disclosed to the MPO

as required by paragraph (c)(4) of this section but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of §51.452.

(6) A process for consulting on the design, schedule, and funding of research and data collectioit efforts and regional transportation model development by the MPO (e.g., household/travel transportation surveys).

(7)A process (including Federal agencies) for providing final documents (including applicable implementation plans and implementation plan revisions) and supporting information to each agency after approval or adoption.

(d)Resolvingconflicts.Conflicts
among State agencies or between State agencies and an MPO shallbe escalated
to the Governor ifthey cannot be resolved by the heads ofthe involved agencies. The State air agency has 14 calendar days to appeal to the Governor after the State DOT orMPO has notified the State air agency head ofthe resolution ofhis or hercomments. The implementation plan revision required by § 51.396 shall define the procedures for starting ofthe 14-day clock. Ifthe State air agency appeals to the Governor, the final conformity determination must have the

concurrence ofthe Governor. Ifthe State air agency does not appeal to the Governor within 14 days, theMPO or State department oftransportation may proceed with the final conformity determination. The Governor may delegate his or her role inthis process, but not to the head orstaff ofthe State

or local air agency, State department of transportation, State transportation commission or board, or an MPO.

(e)Public consultation procedures. Affected agencies making conformity determinations ontransportation plans,
programs, and projects shall establish a proactive public involvement process which provides opportunity for public review and comment priorto taking formal action on a conformity determination for alltransportation plans and TIPs, consistent with the requirements of23 CFRpart 450. In addition, these agencies must specifically address in writing all public
comments that known plans for a regionally significant project which is
notreceiving FHWA orFTA funding or approval have notbeen properly reflected inthe emissions analysis supporting a proposed conformity finding for a transportation plan orTIP. These agencies shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. 

### §51.404 Content oftransportation plans.

(a) Transportation plansadoptedafter January 1, 1995 inserious,severe,or extreme ozonenonattainmentareasand

- in seriouscarbonmonoxide nonattainmentareas. The transportation plan must specifically describe the transportation system envisioned for certain future years which shallbe called horizon years. (1)The agency or organization developing the transportation plan may choose any years to behorizon years, subject to the following restrictions:

(i)Horizon years maybe no more than 10 years apart.

10 The irst* horizon year may be no

more than 10 years from thebase year used to validate the transportation demand planningmodel.

(iii) Ifthe attainment year is in the time span ofthe transportation plan, the attainment year mustbe a horizon year.

(iv) The last horizon year must be the last year ofthe transportation plan's forecast period.

(2) Forthese horizon years: (i) The transportation plan shall Suantify and document the emographic and employment factors influencing expected transportation demand, including land use forecasts, in accordance with implementation plan provisions and § 51.402;

(ii) The highway and transit system shall be described interms ofthe 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 shallbe 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 ofits design concept and design scope to allow modeling of travel times undervarious traffic volumes, consistent with the modeling methods for area-wide transportation analysis in use bythe MPO. Transit facilities, equipment, and services envisioned for the future shall be identified in terms ofdesign concept,

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design scope, and operating policies sufficiently to allow modeling oftheir transit ridership. The description of additions and modifications to the transportation network shall also be sufficiently specific to show that there is areasonable relationship between expected land use and the envisioned transportation system; and

(il Other future transportation policies, requirements, services, and activities, including intermodal activities, shall be described. (b) Moderate areas reclassifiedto serious. Ozone or CO nonattainment

areas which are reclassified from moderate to serious must meet the requirements ofparagraph (a)ofthis section within two years from the date of reclassification. (c) Transportation plansfor other

areas. Transportation plans for other

areas must meet the requirements of paragraph (a)ofthis sectionat least to the extent it has been the previous practice ofthe 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 §§ 51.410 through 51.446.

(d) Savings. The requirements ofthis section supplement other requirements ofapplicable law or regulation governing the format orcontent of transportation plans. 

### §51.406 Relationship oftransportation plan andTIPconformitywith the NEPA process.

The degree of specificity required in the transportation plan and the specific travel network assumed for air quality modeling do not precludethe consideration ofalternatives inthe NEPA process or other project development studies. Should the NEPA process result inaproject with design concept and scope significantly different from that in the transportation plan orTIP, the project must meet the criteria in §§ 51.410 through 51.446 for projects not from aTIP before NEPA
process completion. §

51.408 Fiscal constraints for transportation plansandTIPs.

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

§51.410 Criteria and procedures for determining conformity oftransportation plans, programs,and projects: General.

(a)In order tobe found to conform, each transportation plan, program, and FHWA/FTA project must satisfy the applicablecriteria and procedures in §§ 51.412 through 51.446 as listed in Table I in paragraph (b) ofthis section, and must comply with all applicable conformity requirements of implementation plans and of court orders for the area which pertain specificallyto conformity determination requirements. The criteria for making conformity determinations differ based

on the action under review (transportation plans, TIPs, and FHWA/ FTA projects), the time period in which the conformity determination is made, and the relevant pollutant.

(b) The following table indicates the criteria and procedures in §§ 51.412 through 51.446 which apply for each action in each time period.

TABLE 1.- CONFORMITY CRITERIA

Action I Criteria

All Periods

Transportation Plan

... §§51.412, 51.414, 51.416, 51.418(b). TIP

............................. §§51.412, 51.414, 51.416, 51.418(c). Project (From a con- §§ 51.412. 51.414,

forming plan and 51.416, 51.420, TIP). 51.422, 51.424, 51.426. Project (Not from a §§51.412, 51.414,

conforming plan 51.416, 51.418(d), and TIP). 51.420, 51.424, 51.426.

Phase II of the Interim Period

Transportation Plan

... §§51.436, 51.442.

TIP

............................. §§51.438, 51.444. Project (From a con- §51.434.

forming plan and TIP). Project (Not from a §51.434, 51.440,

conforming plan 51.446. and TIP).

Transitional Period

Transportation Plan

... §§ 51.428, 51.436, 51.442. TIP

............................. §51.430, 51.438, 51.444. Project (From.a con- §51.434.

forming plan and TIP). Project (Not from a §51.432, 51.434.

conforming plan 51.440, 51.446. and TIP). I

Control Strategy and Maintenance Periods

Transportation Plan

... §51.428. TIP

............................. §51.430. Project (From acon- No additional criteria.

forming plan and TIP). TABLE 1 .- CONFORMITY CRITERIA

### Continued

Action Criteria

Project (Not from a 951.432.

conforming plan and TIP).

51.412 The conformity determination must bebased on the latest planning assumptions. 51.414 The conformity determination must be based on the latestemission estimation model available. 51.416 The MPO must make the conformity determination according to the consultation procedures ofthis rule and the implementation plan revision required by §51.396. 51.418 The transportation plan, TIP,or FHWA/FTA project which is notfrom a conforming planand TIP must provide for the timely implementation ofTCMs fromthe applicable implementation plan. 51.420 There must be acurrently conforming transportation plan and currentlyconforming TIP at the time of project approval. 51.422 The project must come from a conforming transportation plan and program. 51.424 The FHWA/FTA project must not

cause orcontribute to any new localized COor PMioviolations or increase the frequency or severity of anyexisting CO

or PMo violations in CO and PM,0 nonattainment and maintenance areas. 51.426 The FHWA/FTA project must comply with PM,o control measures in the applicable implementation plan. 51.428 The transportation plan must be consistent with the motor vehicle emissions budget(s) in the applicable implementation planor implementation plan submission. 51.430 The TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan or implementation plan submission. 51.432 The projectwhich is not from a conforming transportation plan and conforming TIPmust be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan or implementation plan submission. 51.434 The FHWA/FTA project must eliminateor reduce the severity and number oflocalized CO violations in the

area substantially affected bythe project (in CO nonattainment areas). 51.436 The transportation plan must contribute to dmissions reductions in

ozone and CO nonattainment areas. 51.438 The TIP mustcontribute to emissions reductions in ozone and CO nonattainment areas. 51.440 The project which is notfrom a conforming transportation plan andTIP must contribute to emissions reductions in ozone and CO nonattainment areas.

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51.44z The transperfatien plan must contribute tagissiow mductions or must not increase emissions in PM 1oand NO2 nouattainment areas. 51.444 The TIP must contribute to emission reductions ormust not increase emissions in PMw and NO 2 nonattainment areas. SL44. The projectwhh isnot froma conforming transportation plan and TIP most contribute taemission reductions

or must not tncivas. emissions in PMin and NO 2 nonattainment areas.

§51.412 CdttK& aadpreeedum: Latest planning assumptleaa

(a) Theconfmomity determination, with respect Ioalt other applicable criteria in ,f51.414 through 51.446,
must be hased upon themost recent planning assumptions in force at the timeofthe conformity determination. This criterion applies during all periods. The conformity determination must satisfy the requirements of paragraphs (b)through (1)ofthis section.

(b)Assumptions must be derived from the estimates ofcurrent and future population, employment, travel, and congestion most recently developed by the MPOor other agency authorized to make such estimates amd approved by the MPO. The conformity determination must alsobe based on the latest assumptions about current and future background concentrations.

(c)The conformity determination for each transportation plan and TIP must discuss how transit operating policies (including fles and service levels) and assumed transit ridership have changed since the previous conformity determination.

(d)The conformity determination
must include reasonable assumptions about transit service and increases in transitfares and road and bridge tolls

over time.

(e) The conformity determination must usethe latestexisting information regarding the effectiveness oftheTCMs which have already been implemented.

(1)Key assumptions shall e specified and included in the draft documents and supporting materials used for the interagency and publicconsultation required by §51.402.

§51.414 Criteria and,p e dures Latest emissions model. (a) The coniarmity determination
must bebased on thelatest emission estimation mode available. This criterion appiies dering all peuiods. It is satisfied ifthemost current version of the motor vehicle emissions model specified byEPA for usmin the * preparation or revision of implementation plansin that State or

area is used for the conformity analysis. Where EMFAC is the motor vehicle emissions modM used'k preparing or revising the applicable implementation plan, new versions mustbeapproved by EPA beforethey me used in the conformity analysis.

(b) EPAwill consult with DOT to establish a grace period following the specification of any new model.

JI) The graceperiod,willbe no less than three months and no morethan 24 months after notice ofavailability is published in the Federal Regiater.

(2) The length ofthe grace period will depend on the degree of-change in the model and thescqpe ofre-planning likely to be necessary by,MOs in order
toassu conformity. Ifthe grace period will be longer than,three months, EPA will announce theappropriate grace period in theFederal Register.

(c)Conformity analyses for which the emissions analysiswas begun during the grace period orbefore the Federal Register notice ofavailability ofthe latest emission model may continue to

usethe previous version ofthe model for transportation plans and TIPs. The previous model may also be used for projects ifthe analysis was begun during the grace peiod orbefore the Federal Register notice of availability, provided nomore than three years have passed sincethe draft environmental document wasissued. §51A16 Criteriaand procedures:

Consultation.

The MPO must make the conformity determination according. to the consultation procedures in this rule and in the implementation plan revision required by §51.396, and,according to the public involvement procedures established by theMPO in compliance with 23 CFR part 450. This criterion applies during all periods. Untilthe implementation plan revision required by § 51.3-96 is approved by EPA, the conformity determination must be made according to the procedures in §§ 51.402(aH2) and 51.402(e). Once the implementation plan revision has been approved by EPA, this criterion is satisfied ifthe conformity determination is made consistent with the. implementation plan's consultation requirements.

§51.418 Criteriaandprocedures: Timely Implementation ofTCMs.

(a)Thetransportation plan, TIP,or FHWA/FTA project which is not from a conforming plan and TIMPmust provide for thetimely implementation ofTCMs fromthe applicable implemenation plan. This criterion applies during all periods. (b) For transportation plans, this criterion is satisfied ifthe following two conditions are met,

(I The transportation plan,.in describing the envisioned future transportation system, provides for the timely completion or implementation of allTCMs in the applicable implementation plan which are eligible for funding under title 23 U.S.C.- or the Federal Transit Act,,consistent with schedules included in theapplicable implementation plan.

(2) Nothing in the transportation pla interferes with the.implementation 

### of
any TCM istheapplicable implementation plan.

(c) ForTIPs,thiscriterion is satisfied. ifthe following conditions aremet:

(lIAn examination ofthe specific steps and funding sourcets) neededto fully implement each TCM indicates that TCMs which are eligible'for funding under title 23 U.S.C orthe Federal Transit Act are on or ahead of the schedule established in the applicable implementation plan, or, if such TCMs are behind'the schedule established in the applicable implementation plan, the MPG and DOT have determined that past obstacles to implementation ofthe TCMshave been identified and have been orare being overcome, and that all State and local agencies with.influence

over approvals orfunding forTCMs are giving maximum priority to approval or funding ofTCb& over other projects within their control, including projects in locations outside the nonattainment

ormaintenance area.

(2) IfTCMs in the-applicable implementation plan have previously been programmed for Federal fundingbut the funds have' notbeen obligated and the TCMs are behind the schedule inthe implementation plan,, then theTIPcannot be found to conform ifthe funds intended forthoseTCMs are reallocated to,projects hn theTIP other than TCMs, orifthere areno ether TCMs in the TIP,ifthe funds am reallocated to projects in the TIPether than projects which areeligile ffb Federal funding under ISTEA's Congestion Mitigation andAir Quality Improvement Program.

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

(d) For FHWA/FTA projects which

are not from aconforming transportation plan andTIP,this criterion is satisfied ifthe project does
not interfere with the implementation of
anyTCM in the applicable implementation plan. 1993 t Rules and: Regulations

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§51.420 Criteria and procedures: Currently conforming transportation plan andTIP.

There must be a currently conforming transportation plan and currently conforming TIPat the time ofproject approval. This criterion applies during all periods. Itis satisfied ifthe current transportation plan and TIPhave been found to conform to the applicable implementation plan by the MPO and DOT according to the procedures ofthis subpart. Only one conforming transportation plan or TIPmay exist in

an area at any time; conformity determinations of aprevious transportation plan or TIPexpire once the current plan or TIP is found to conform by DOT. The conformity determination on a transportation plan

or TIPwill also lapse ifconformity is not determined according to the frequency requirements of §51.400.
§51.422 Criteria and procedures: Projects froma plan and TIP.

(a) The project must come from a conforming plan and program. This criterion applies during all periods. If this criterion is not satisfied, the project
must satisfy all criteria inTable 1for a project not from a conforming transportation plan and TIP. A project is considered to be from a conforming transportation plan ifit meets the requirements ofparagraph (b)of this section and from a conforming program ifit meets the requirements ofparagraph (c) ofthis section.

(b)A project is considered to be from

a conforming transportation plan ifone ofthe following conditions applies:

(1)For projects which are required to be identified in the transportation plan in orderto satisfy §51.404, the project is specifically included inthe conforming transportation plan and the project's design concept and scope have
notchanged significantly from those which were described in the transportation plan, or in amanner which would significantly impact use of the facility; or

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

(c) Aproject is considered tobe from

a conforming program ifthe following conditions are met:

(1)The project is included in the conforming TIP and the design concept and scope ofthe project were adequate
at the time of the TIP conformity determination to determine its contribution to the TIP's regional emissions and have not changed significantly from thosewhich were described in the TIP, or in a manner which would significantly impact use of the facility; and

(2) Ifthe TIP describes a project design concept and scope which includes project-level emissions mitigation orcontrol measures, written commitments to implement such

measures must be obtained from the project sponsor and/or operator as required by §51.458(a) inorder for the project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes a change in the design concept and scope ofthe project. 

### §51.424 Criteria and procedures: Localized CO and PM 10violations(hot spots).

(a)The FHWA/FTA project must not cause or contribute to any new localized CO or PMmo violations or increase the frequency or severity of any existing CO

or PM 1oviolations in CO and PM~o nonattainment and maintenance areas. This criterion applies during all periods. This criterion is satisfied ifit is demonstrated that no new local violations will be created and the severity or number ofexisting violations will notbe increased as a result ofthe project.

(b) The demonstration must be performed according to the requirements of§§ 51.402(c)(1)(i) and 51.454.

(c)For projects which are not ofthe type identified by §51.454(a) or §51.454(d), this criterion maybe satisfied ifconsideration of local factors clearly demonstrates that no local violations presently exist and no new local violations will be created asa result ofthe project. Otherwise, in CO nonattainment andmaintenance areas, a quantitative demonstration must be performed according to the requirements of§ 51.454(b). §51.428 Criteria and procedures: Compliance with PM 10controlmeasures. The FHWA/FTA project must comply with PM1o control measures in the applicable implementation plan. This criterion applies during all periods. Itis satisfied ifcontrol measures (forthe
purpose of limiting PMo emissions from the construction activities and/or normal use and operation associated with the project) contained in the applicable implementation plan are included in the final plans, specifications, and estimates forthe project. 

### §51.428 Criteria and procedures: Motor vehicle emissionsbudget (transportation plan).

(a)The transportation plan must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies during the transitional period and the control strategy and maintenance periods, except as provided in S51.464. This criterion may be satisfied ifthe requirements in paragraphs (b) and (c) ofthis section are met: (b)A regional emissions analysis shall be performed as follows:

(1)The regional analysis shall estimate emissions ofany ofthe following pollutants and pollutant
precursors forwhich the area is in nonattainment or maintenance and for which the applicable implementation plan (orimplementation plan submission) establishes an emissions budget:

(i)VOC as an ozone precursor; (ii)NO. as an ozone precursor, unless the Administrator determines that additional reductions of NO. would not contribute to attainment;

(iii)CO; (iv)PM lo (and its precursors VOC and/or NO. ifthe applicable implementation plan or implementation plan submission identifies transportation-related precursor emissions within the nonattainment

area as a significant contributor to the PM ,ononattainment problem or establishes a budget for such emissions);

or(v)NO. (inNO 2nonattainment or maintenance areas);

(2) The regional emissions analysis shall estimate 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 ormaintenance area in the timeframe ofthe transportation plan;

(3) The emissions analysis methodology shall meet the requirements of§51.452;

(4) For areas with a transportation plan that meetsthe content requirements of§51.404(a), the emissions analysis shallbe performed for each horizon year. Emissions in milestone years which arebetween the horizon years may be determined by interpolation; and

(5) For areas with a transportation plan that doesnot meet the content requirements of§51.404(a), the

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### 62224Federal Reg tr 1'VoL 58, No. 225 t Wedriesday; November 24, 199'J 

### ' Rules and Regirrations
|EN UMd l-- I

emissions anelyskishaklibapedred forany years inthe time span ofthe transportation plan provided they are notmore than ten years apart and provided the analysis is performed for the last year ofthe plan's forecast period. Iftheattainment year is in the time span ofthetransportation plan, the emissionsanalysis-mustalso be performed for the attainment year. Emissions ir milestone years which are between,these analysisyears maybe determined byinterpolation.

(c) The, regiona emissions analysis shall demonstrat that for each ofthe applicable pollutants orpollutant precursosin paragraph (b)(1) ofthis section tfe emissions are lessthan or Pqual to themotor vehicle emissions budget as established inthe applicable inplementation plan orimplementation plan submission as-follows:

(1)Ifthe applicable implementation plan or implementation plan submission establishes emissions budgets for mieistone years, emissions in each milestone year are less than or equal tothe motorvehicle emissions budget establishedfor that year

(? For nonattainment areas, emissions inthe attainment year are less then or equalto the-motor vehicle emissions budget.established'inthe, applicable implementation plan or implementation plan submission for that year; J Fornonettainment areas, emissions in each analysis or horizon year after theattainment yearare less than or equal'to' the motorvehicle emissions bndtet established by the applicable implementatitn plan or implementation plan submission for the attainment year. Ifemissions budgets

are established foryears after the attainment year, emissions ineach analysis year orhorizonyear mustbe less than or equal to 

### rthmotor vehicle emissionsbudget for thatyear,if any, or themotorvehicle emissions budget for themost recent budgetyearprior tothe analysisyear orhorizon yeam,and

(4)Formaintemnce areas; emissions in each analysis orhorizon yearare less than orequal tothe motor vehifle emissions budget,establshed by the maintenance plan forthat year,ifany,

orthe emissionsbudgetforthemost recentbudget yearprior to theanalysis

orhorizon year.

151.43a CrdwWand preedwus: Motor vehicl e 1a1onbud p (TiPh

WThe TiP meatb consistent wi&th the motor vehicle emissiom bxugetfs) i& the applicable implementatim pims tmr implementation plan submisisun). This criterion,applies daigi- tkn tansitibnall period and thec ntrol strategy and maintenance,perieds, except as providedin 

### §5t.444. Thiscriterion may be satisfied; ifthe requirements i paragraphs (b)an (ie) ofthis section are met:

(b) Forareas with aconformmng transportation plan that fuliy meats the
content requirements of §51.404(a), this criterion may b. satisfied without additional regiml analysis ik

(1)Each progria yem oftheTIP is consistent with the Federal funding which muay be reasonably expected for that year, and required Stoe/local matching fimdsand funds for State/ local fundig-onLy projects are consistent with the revenue sources expected over thesame.period; and

(2) The TIP is consistent with the, conforming transportation plan,such that the regional emissions,analysis already performed for the plan applies
to the TIP also, This requires a demonstration that: (i)The TIPcontains all projects which
must be started in theTIP's timeframe in order toachieve thehighway and transit system envisioned by the transportationplan in each of its horizonyears; di) Al "tp pejots which are regionally significant are partof the specific highway ortransit system envisioned inthe transportationplan's horizon years; and

(iii) The design concept and scope of each regionally significant project in the, TIP is not significantly different from that described in the transportation plan.

(3)Ifthe requirements in paragraphs (b)(1) and (b)(2) ofthis section are not met, then:

(WTMe TEP maybe modified'to meet those requirements; or (ii)The transportation plan must be revised so OW the,requirements in paragraphs (bJI)and (b)(2) ofthis
secton are met. Oncethe revised plan has been foundto conform, this criterion is metfor,theTIP'with'no additional analysis except a. demonstration that theTIPmeets the requirements ofparagraphs ( )(T) and (b)(2) ofthis section. (c)For areas with atranspwation& plan that does not meet the content requirements of§ 51.404(a), a regional emissions,analysis must meet'allofthe followingrequirements:

(1) The regiond emissions analysis shall estimate emissions *ern theentire transportation system, inefuding aft projects-contained inde proposed T, the transportadee pban, andaffother regionally sigifikant highiway and transit projects expected in the nonattainment ormaintenance area,in, the timeframe of thetransportation plan; (2)The analysis methodology shall
meet therequirements of§ 51.452(c); and

(3) The regional analysis shall satisfy the requirements of'§J5L.428(b t1), 51.428(b)(5y, and 51.428(c).
§5tAXt Criteia and4procedree: Moftr vehicle emirastonb vdgm (prject astfrom
aplan.and TIP).

(a)The project which is not from a, conformingtransportation plan and a conformingTPmustbe consiitent with themotor vehicle mnissionsbudget(s) in the applicable implementation plan(or implementation plan submission). This criterion applies during the, transitional period and the control strategy and maintenance periods, except as provided in.§51.464 Itis satisfiedif emissions from the implementation.of the project, when considered with the emissions fromthe projects in the conforming transportation plan andTIP and all otherregionally significant projects expected in the area, do not exceed the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission).

Ah) For areas with aconforing, transportation plan thatmeets the content requirements of §51.404(a).

(1)This criterion may be satisfied, without additional regional analysis if the project is included in the conforming tamnsportation plan, even if it is not specifically included in the latest conforming TIP. Thisrequires a demonstration that- (iJ Allocating funds to the project will
not delay the implementation ofprojects inthe transportation plan orTIP which

are necessary toachieve thehighway and transit system envisioned by the transportation plan ineach ofits horizon years;

(ii)' The projectiTnotregionally significant or ispart ofthe specific highway or transit system envisioned In the transportation plan's horizon years; and

(iii) The design concept and scope of the project is not significantly different from that described' in thetransportation plan.

(2) Ifthe requirements in paragraph (b)(1) ofthis section.are net met,a regional emissionsanalysis must be performed as foHows. (i)The analysis methodology shall,
meet the requirements of §51.45Z; (R)The analysis shafestimate emissions fiom the transpofttion system, including,the proposed project and all otheriegionally significant projects expected in the nonattainment or maintenance area in thetirneframe of the transportation plan. The analysi's

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### Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62225

must include emissions from all previously approved projects which

were not from a transportation plan and TIP; and

(iii) The emissions analysis shall meet the requirements of §§ 51.428(b)(1), 51.428(b)(4), and 51.428(c).

(c) For areas with a transportation plan that does not meet the content requirements of §51.404(a), a regional emissions analysis must be performed for the project together with the conforming TIP and all other regionally significant projects expected in the nonattainment or maintenance area. This criterion may be satisfied if:

(1) The analysis methodology meets the requirements of§51.452(c);

(2) The analysis estimates emissions from the transportation system, including the proposed project, and all other regionally significant projects expected in the nonattainment or maintenance area in the timeframe of the transportation plan; and

(3) The regional analysis satisfies the requirements of§§ 51.428(b)(1), 51.428(b)(5), and 51.428(c). §51.434 Criteria and procedures: Localized CO violations(hot spots) Inthe Interimperiod.

(a) Each FHWA/FTA project must eliminate orreduce the severity and number oflocalized CO violations in the

area substantially affected by the project (in CO nonattainment areas). This criterion applies during the interim and transitional periods only. This criterion is satisfied with respect to existing localized CO violations if it is demonstrated that existing localized CO violations will be eliminated orreduced in severity and.number as a result ofthe project.

(b) The demonstration mustbe performed according to the requirements of §§ 51.402(c)(1)(i) and 51.454.

(c) For projects which are not ofthe type identified by §51.454(a), this criterion may be satisfied if consideration oflocal factors clearly demonstrates that existing CO violations will be eliminated or reduced in severity and number. Otherwise, a quantitative demonstration must be performed according to the requirements of §51.454(b).
§51.436 Criteria and procedures: Interim period reductions Inozone and CO areas (transportation plan).

(a) A transportation plan must contribute to emissions reductions in

ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in § 51.464. It applies to the net effect on emissions of all projects contained in a new or revised transportation plan. This criterion may be satisfied ifa regional emissions analysis is performed as described in paragraphs (b) through (f) ofthis section.

(b) Determine the analysis years for which emissions are to be estimated. Analysis years shall be no more than ten years apart. .The first analysis year shall be no later than the first milestone year (1995 in CO nonattainment areas and 1996 in ozone nonattainment areas). The second analysis year shall be either the attainment year for the area, orif the attainment year is the same as the firt analysis year or earlier, the second analysis year shall be at least five years beyond the first analysis year. The last
year ofthe transportation plan's forecast period shall also be an analysis year.

(c) Define the 'Baseline' scenario for each ofthe analysis years to be the future transportation system that would result from current programs, composed ,of the following (except that projects listed in §§ 51.460 and 51.462 need not be explicitly considered):

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

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

13) Completion ofall 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 three years ofthe previously conforming transportation plan and/or TIP; or have completed the NEPA process. (Forthe first conformity determination on the transportation plan after November 24, 1993, a project may not be included in the "Baseline" scenario if one of the following major steps has not occurred within the past three years: NEPA
process completion; start offinal design; acquisition ofa significant portion of the right-of-way; or approval of the plans, specifications and estimates. Such a project must be included in the "Action" scenario, as described in paragraph (d) ofthis section.)

(d) Define the 'Action' scenario for each ofthe analysis years as the transportation system that will result in that year from the implementation ofthe proposed transportation plan, TIPs adopted under it, and other expected regionally significant projects in the nonattainment area. It will include the following (except that projects listed in §§ 51.460 and 51.462 need not be explicitly considered): (1)All facilities, services, and activities in the 'Baseline' scenario:

(2) Completion ofall 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 orutilizing any Federal funding orapproval, which have been fully adopted and/or funded by the enforcing jurisdiction or sponsoring agency since the last conformity determination on the transportation plan; (4) The incremental effects ofany travel demand management programs and transportation system management activities known to theMPO, 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 on the transportation plan, but which have been modified since then to be more stringent or effective;

(5) Completion ofall expected regionally significant highway and transit projects which are not from a conforming transportation plan and IP; 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.

(e) Estimate the emissions predicted
to result in each analysis year from travel on the transportation systems defined by the 'Baseline' and 'Action' scenarios and determine the difference in regional VOC and NO, emissions (unless the Administrator determines that additional reductions of NO,, would
not contribute to attainment) between the two scenarios for ozone nonattainment areas and the difference in CO emissions between the two scenarios for CO nonattainment areas. The analysis must be performed for each ofthe analysis years according to the requirements of§ 51.452. Emissions in milestone years which are between the analysis years may be determined by interpolation. Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62225

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(f)This criterion is met if the regional VOC and NOXemisslons (forozone nonattainment areas) and CO emissions (for CO nonattainment areas) predicted in the 'Action' scenario are less than the emissions predicted from the 'Baseline' scenario in each analysis year, and if this can reasonably be expected to be
true in the periods between the first milestone year and the analysis years. The regional analysis must show that the 'Action' scenario contributes to a reduction in emissions from the 1990 emissions by any nonzero amount. §51.438 Criteria and procedures: Interim period reductions In ozone and CO areas (TIP).

(a) A TIP must contribute to emissions reductions in ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in § 51.464. It applies to thenet effect on emissions of all projects contained in a new or revised TIP. This criterion may be satisfied ifa regional emissions analysis is performed as described in paragraphs (b) through () ofthis section.

(b) Determine the analysis years for which emissions are tobe estimated. The first analysisyear shallbe no later than the first milestone year (1995 in CO nonattainment areas and 1996 in ozone nonattainment areas). The analysis years shall beno more than ten years apart. The second analysis year shall be either the attainment year for the area, orifthe attainment year is the same asthe first analysis year orearlier, the second analysis year shallbe at least five years beyond the first analysis year. The last year ofthe transportation plan's forecast period shall also be an analysis year.

(c) Define the 'Baseline' scenario as the future transportation system that would result from current programs, composed ofthe following (except that projects listed in §§ 51.460 and 51.462 need notbe explicitly considered):

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

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

(3)Completion of allregionally 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 three years ofthe previously conforming TIP; or have completed the NEPA process. (For the first conformity determination on the TIP after November 24, 1993, a project may notbe included in the "Baseline" scenario ifone ofthe following major steps has not occurred within the pastthree years: NEPA
process completion; start offinal design; acquisition ofasignificant portion of the right-of-way; or approval ofthe plans, specifications and estimates. Such a project must be included in the "Action" scenario, as described in paragraph (d) ofthis section.) (dJDefine the 'Action' scenario asthe future transportation systemthat will result from the implementation ofthe proposed TIP and other expected regionally significant projects in the nonattainment area in the timeframe of the transportation plan. It will include the following (except that projects listed in §§ 51.460 and 51.462 need not be explicitly considered):

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

(2) Completion of all TCMs and regionally significantprojects (including facilities, services, and activities) included in the proposed TIP, except that regulatory TCMs may notbe assumed to begin at a future time unless the regulation is already adopted by the enforcing jurisdiction orthe TCM Is contained in the applicable implementation plan;

(3) All travel demand management programs and transportation system management activities known to the MPO, butnot included in the applicable implementation plan orutilizing any Federal funding or approval, which have been fully adopted and/or funded by the enforcingjurisdiction or sponsoring agency since the last conformity determination on the TIP;

(4) The incremental effects ofany 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 ofthe last conformity determination on the TIP, 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 thathave clear funding sources and commitments leading toward their implementation and completion by the analysis year.

(e) Estimate the emissioni predicted
to result ineach analysis year from travel on the transportation systems defined by the 'Baseline' and 'Action' scenarios, and determine the difference in regional VOC and NO. emissions (unless the Administrator determines that additional reductions ofNO. would
not contribute to attainment) between the two scenarios forozone nonattainment areas and the difference in CO emissions between the two scenarios for CO nonattainment areas. The analysis mustbe performed foreach ofthe analysis years according to the requirements of§51.452. Emissions in milestone years which are between analysis years may be determined by interpolation.

(f)This criterion is met ifthe regional VOC and NO. emissions in ozone nonattainment areas and CO emissions in CO nonattainment areas predicted in the 'Action' scenario are less than the emissions predicted from the 'Baseline' scenario in each analysis year, and if this can reasonably be expected to be
true inthe period between the analysis
years. The regional analysis must show that the 'Action' scenario contributes to

a reduction in emissions from the 1990 emissions by any nonzero amount.

§51.440 Criteria and procedures: interim period reductionsforozone and CO areas (projectnotfrom aplan and TIP).

A Transportation project which is not from a conforming transportation plan and TIP must contribute to emissions reductions in ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in §51.464. This criterion is satisfied if aregional emissions analysis is performed which
meets the requirements of§51.436 and which includes the transportation plan and project in the 'Action' scenario. If the project which is not from a conforming transportation plan and TIP is a modification ofa 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.
151.442 Criteria and procedures: Interim period reductionsfor PM 1oand NO 2areas (transportation plan).

(a) A transportation plan must contribute to emission reductions or must notincrease emissions inPM~o and NO 2nonattainment areas. This criterion applies only during the interim and transitional periods. It applies to the net effect on emissions ofall projects contained in a new orrevised transportation plan. This criterion may be satisfied if the requirements ofeither 

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paragraph (b) or (c)of this section are met

(b) Demonstrate that implementation ofthe plan and all other regionally significant projects expected in the nonattainment area will contribute to reductions in emissions ofPM,o in a PM 1t nonattainment area (and ofeach transportation-related precursor ofPMo in PMo nonattainment areas if the EPA Regional Administrator or the director ofthe State air agency has made a finding that such precursor emissions from within the nonattainment area are

a significant contributor to the PM,0 nonattainment problem and has so notified the MPO and DOT) and ofNO. in an NO 2 nonattainment area, by performing aregional emissions analysis as follows:

(1) Determine the analysis years for which emissions are to be estimated. Analysis years shall be no more than ten years apart. The first analysis year shall be no later than 1996 (for NO 2 areas) or four years and six months following the date ofdesignation (for PMo areas). The second analysis year shall be either the attainment year for the area, or ifthe attainment year is the same as the first, analysis year or earlier, the second analysis year shall be at least five years beyond the first analysis year. The last
year ofthe transportation plan's forecast period shall also be an analysis year.

(2) Define for each of the analysis
years the "Baseline" scenario, as defined in § 51.436(c), and the "Action" scenario, as defined in § 51.436(d).

(3) Estimate the emissions predicted

to result in each analysis year from travel on the transportation systems defined by the "Baseline" and "Action" scenarios and determine the difference between the two scenarios in regional PMo emissions in a PM~o nonattainment area (and transportationrelated precursors ofPMo in PM1o nonattainment areas ifthe EPA Regional Administrator or the director ofthe State air agency has made a finding that such precursor emissions from within the nonattainment area are a significant contributor to the PM1ononattainment problem and has so notified the MPO and DOT) and in NO,, emissions in an NO 2nonattainment area. The analysis

must be performed for each ofthe analysis years according to the requirements of§ 51.452. The analysis
must address the periods between the analysis years and the periods between 1990, the first milestone year (ifany), and thefirst ofthe analysis years. Emissions in milestone years which are between the analysis years may be determined by interpolation.

(4) Demonstrate that the regional PM1o emissions and PM1o precursor emissions, wherb applicable, (for PM 1t nonattainment areas) and NO, emissions (for NO 2 nonattainment areas) predicted in the 'Action' scenario are less than the emissions predicted from the 'Baseline' scenario in each analysis
year, and that this can reasonably be expected to be true in the periods between the first milestone year (ifany) and the analysis years.

(c) Demonstrate that when the projects in the transportation plan and all other regionally significant projects expected in the nonattainment area are implemented. the transportation system's total highway and transit emissions ofPM,0 in a PM10 nonattainment area (and transportationrelated precursorsof PM,o in PM,0 nonattainment areas ifthe EPA Regional Administrator or the director ofthe State air agency has made a finding that such precursor emissions from within the nonattainment area are a significant contributor to the PMto nonattainment problem and has so notified the MPO and DOT) and ofNO,, in an NO 2 nonattainment area will not be greater than baseline levels, by performing a regional emissions analysis as follows:

(1) Determine the baseline regional emissions ofPM,0 and PM,0 precursors, where applicable (for PM10 nonattainment areas) and NO.(for NO 2 nonattainment areas) from highway and transit sources. Baseline emissions are those estimated to have occurred during calendar year 1990, unless the implementation plan revision required by § 51.396 defines the baseline emissions for aPMo 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.

(2) Estimate the emissions ofthe applicable pollutant(s) from the entire transportation system, including projects in the transportation plan and TIPand all other regionally significant projects in the nonattainment area, according to the requirements of § 51.452. Emissions shall be estimated for analysis years which are no more than ten years apart. The first analysis

year shall be no later than 1996 (for NO 2 areas) or four years and six months following the date ofdesignation (for PMo areas). The second analysis year shall be either the attainment year for the area, or if the attainment year is the

same as the first analysis year or earlier, the second analysis year shall beat least five years beyond the first analysis year. The last year ofthe transportation plan's forecast period shall also be an analysis
year. (3) Demonstrate that for each analysis
year the emissions estimated in paragraph (c)(2) ofthis section are no greater than baseline emissions ofPM,, and PM, 0 precursors, where applicable (for PMo nonattainment areas) or NO, (for NO 2 nonattainment areas) from highway and transit sources. §51.444 Criteria and procedures: Interim period reductions for PM,,oand NO 2areas (TIP).

(a) A TIP must contribute to emission reductions ormust not increase emissions in PMo and NO 2 nonattainment areas. This criterion applies only during the interim and transitional periods. It applies to the net effect on emissions ofall projects contained in a new or revised TIP. This criterion may be satisfied ifthe requirements ofeither paragraph (b) or paragraph (c) ofthis section are met.

(b) Demonstrate that implementation ofthe plan and TIP and all other regionally significant projects expected in the nonattainment area will contribute to reductions in emissions of PM,1 0 in aPM,, nonattainment area (and transportation-related precursors of PM,0 in PMo nonattainment areas ifthe EPA Regional Administrator or the director ofthe State air agency has made

a finding that such precursor emissions from within the nonattainment area are

a significant contributor to the PMo nonattainment problem and has so notified the MPO and DOT) and ofNO, in an NO 2 nonattainment area, by performing a regional emissions analysis as follows:

(1)Determine the analysis years for which emissions are to be estimated, according to the requirements of §51.442(b)(1).

(2) Define for each of the analysis
years the "Baseline" scenario, as defined in § 51.438(c), and the "Action" scenario, as defined in § 51.438(d).

(3) Estimate the emissions predicted
to result in each analysis year from travel on the transportation systems defined by the "Baseline" and "Action" scenarios as required by §51.442(b)(3), and make the demonstration required by § 51.442(b)(4).

(c) Demonstrate that when the projects in the transportation plan and TIP and all other regionally significant projects expected in the area are implemented, the transportation system's total highway and transit emissions ofPMo in a PMo nonattainment area (andtransportationrelated precursors ofPMo in PMo nonattainment areas iftheEPA Regional Administrator orthe director ofthe State air agency has made a finding that such precursor emissions from'within 1993 / Rules and Regulations 62227

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the nonattainment area are a significant contributor to the PM,0 nonattainment problem and has so notified the MPO and DOT) and of NO. in an NO2 nonattainment area will not be greater than baseline levels, by performing a regional emissions analysis as required by §51.442(c) (1)-(3).
§51.446 Criteria and procedures: Interim period reductions for PM1 0and NO2 areas (project not fromaplan and TIP).

A transportation project which is not from a conforming transportation plan and TIP must contribute to emission reductions or must not increase
emissions in PMo and NO 2 nonattainment areas. This criterion applies during the interim and transitional periods only. This criterion is met ifa regional emissions analysis is performed which meets the requirements of§ 51.442 and which includes the transportation plan and project in the 'Action' scenario. Ifthe project which is not from a conforming transportation plan and TIP is a modification ofa project currently in the transportation plan or TIP, and §51.442(b) is used to demonstrate satisfaction ofthis criterion, 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. §51.448 Transitionfrom the Interim period
tothe control strategy period..

(a)Areas whichsubmita control strategyimplementation planrevision afterNovember24, 1993. (1) The transportation plan and TIP must be demonstrated to conform according to transitional period criteria and procedures by one year from the date the Clean AirAct requires submission of such control strategy implementation plan revision. Otherwise, the conformity
status of the transportation plan and TIP will lapse, andno new project-level conformity determinations may be made.

(i)The conformity ofnew transportation plans and TIPs may be demonstrated according to Phase II interim period criteria andprocedures for 90 days following submission ofthe control strategy implementation plan revision, provided the conformity of such transportation plans and TIPs is redetermined according to transitional period criteria and procedures as required in paragraph (a)(1) of this section.

(ii) Beginning 90 days after submission ofthe control strategy implementation plan revision, new transportation plans and TIPs shall demonstrate conformityaccording to transitional period criteria and procedures.

(2) If EPAdisapproves the submitted control strategy implementation plan revision and so notifies the State, MPO, and DOT, which initiates the sanction
process under Clean AirAct sections 179 or 110(m), the conformity status of the transportation plan and TIP shall lapse 120 days after EPA's disapproval, and no new project-level conformity determinations may be made. No new transportation plan,TIP, or project may be found to conform until another control strategy implementation plan revision is submitted and conformity is demonstrated according to transitional period criteria and procedures.

(3)Notwithstanding paragraph (a)(2) ofthis section, ifEPA disapproves the submitted control strategy implementation plan revision but determines that the control strategy contained in the revision would have ,been considered approvable with respect to requirements for emission reductions if all committed measures had been submitted in enforceable form

as required by Clean Air Act section 110(a)(2)(A), the provisions ofparagraph (a)(1) ofthis section shall apply for 12 months following the date of disapproval. The conformity status of the transportation plan and TIP shall lapse 12 months following the date of disapproval unless another control strategy implementation plan revision is submitted to EPA and found to be complete.

(b)Areas which havenot submitteda controlstrategyimplementation plan revision.(1)For areas whose Clean Air Act deadline for submission ofthe control strategy implementation plan revision is after November 24, 1993, and EPA has notified the State, MPO, and DOT ofthe State's failure to submit a control strategy implementation plan revision, which initiates the sanction
process under Clean Air Act sections 179 or 110(m):

(i) No new transportation plans or TIPs may be found to conform beginning 120 days after the Clean Air Act deadline; and

(ii)The conformity statusofthe transportation plan and TIP shall lapse

one year after the Clean Air Act deadline, and no new project-level conformity determinations may be made.

(2) For areas whose Clean AirAct deadline for submission ofthe control strategy implementation plan was before November 24, 1993 and EPA has made

afinding offailure to submit acontrol strategy implementation plan revision, which initiates the sanction process under Clean.Air Act sections 179 or 110(m), the following apply unless the failure hasbeen remedied and acknowledged by a letter from the EPA Regional Administrator:

(i)No new transportation plans or TIPs may be found to conform beginning March 24, 1994; and

{ii) The conformity status ofthe transportation plan and TIP shall lapse November 25, 1994, and no new projectlevel conformity determinations may be made.

(c) Areaswhichhavenotsubmitteda complete controlstrategy implementation planrevision.(1)For

areas where EPA notifies the State, MPO, and DOTafter November 24, 1993 that the control strategy implementation plan revision submitted by the State is incomplete, which initiates the sanction
process under Clean AirAct sections 179 or lO(m), the following apply unless the failure has been remedied and acknowledged by a letter from the EPARegional Administrator:

(i)No new transportation plans or TIPs may be found to conform beginning 120 days afterEPA's incompleteness finding; and

(ii)The conformity status ofthe transportation plan and TIP shall lapse

one year after the Clean Air Act deadline, and no new project-level conformity determinations may be made.

(iii) Notwithstanding paragraphs (c)(1) (i)and (ii) ofthis section, ifEPA notes in its incompleteness finding that the submittal would have been considered complete with respect to requirements for emission reductions ifall committed

measures hadbeen submitted in enforceable form as required by Clean Air Act section 110(a)(2)(A), the provisions ofparagraph (a)(1) ofthis section shall apply for a period of 12 months following the date ofthe incompleteness determination. The conformity status ofthe transportation plan and TIP shall lapse 12months following the date ofthe incompleteness determination unless another control strategy implementation plan revision is submitted to EPA and found to be complete.

(2) For areas where EPA has determined before November 24, 1993 that the control strategy implementation plan revision is incomplete, which initiates the sanction process under Clean Air Act sections 179 or 110(m), the following apply unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator:

(i) No new transportation plans or TIPsmay be found to conform beginning March 24, 1994; and 

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(ii) The conformity status ofthe transportation plan and TIP shall lapse November 25, 1994, and no new projectlevel conformity determinations may be made.

(iii) Notwithstanding paragraphs (c)(2) (i)and (ii) ofthis section, ifEPA notes in its incompleteness finding that the submittal would have been considered complete with respect to requirements for emission reductions ifall committed

measures had been submitted in enforceable form asrequired by Clean AirAct section 110(a)(2)(A), the provisions ofparagraph (d)(1) ofthis section shall apply for aperiod of 12 months following the date ofthe incompleteness determination. The conformity status ofthe transportation plan and TIP shall lapse 12 months following the date ofthe incompleteness determination unless another control strategy implementation plan revision is submitted toEPA and found to be complete. (d Areaswhich submitteda control strategyimplementation plan before November24, 1993. (1)The transportation plan and TIP mustbe demonstrated to conform according to transitional period criteria and procedures by November 25, 1994. Otherwise, their conformity status will lapse, andno new project-level conformity determinations may be made. (i) The conformity ofnew transportation plans and TIPs may be demonstrated according to Phase II interim period criteria and procedures until February 22, 1994, provided the conformity ofsuch transportation plans and TIPs is redetermined according to transitional period criteria and procedures as required in paragraph (d)(1) ofthis section.

(ii) Beginning February 22, 1994, new transportation plans and TIPs shall "demonstrate conformity according to transitional period criteria and procedures.

(2) IfEPA has disapproved the most recent control strategy implementation plan submission, the conformity status ofthe transportation plan and TIP shall lapseMarch 24, 1994, andno new project-level conformity determinations
maybe made. No newtransportation plans, TIPs, or projects may be found to conform until another control strategy implementation plan revision is submitted andconformity is demonstrated according to transitional period criteria and procedures.

(3)Notwithstanding paragraph (d)(2). ofthis section, ifEPA has disapproved the submitted control strategy implementation plan revision but determines that the control strategy contained in the revision would have been considered approvable with respect to requirements foremission reductions if all committed measures had been submitted in enforceable form

asrequired by Clean AirAct section 110(a)(2)(A), the provisions of paragraph (d)(1) ofthis section shall apply for 12 months following November 24, 1993. The conformity status ofthe transportation plan and TIP shall lapse 12 months following November 24, 1993 unless another control strategy implementation plan revision is submitted to EPA and found to be complete.

(e) Projects.Ifthe currently conforming transportation plan and TIP have notbeen demonstrated to conform according to transitional period criteria and procedures, the requirements of paragraphs (e) (1)and (2) ofthis section
must be met.

(1)Before a FHWA/FTA project which is regionally significant and increases single-occupant vehicle capacity (a new general purpose highway on a new location or adding general purpose lanes) may be found to conform, the State air agency mustbe consulted on how theemissions which the existing transportation plan and TIP's conformity determination estimates for the "Action" scenario (as required by §§ 51.436 through 51.446)
compare to the motor vehicle emissions budget in the implementation plan submission orthe projected motor vehicle emissions budget in the implementation plan under development.

(2) In the event of unresolved disputes

on such project-level conformity determinations, the State air agency may escalate the issue to the Governor consistent with the procedure in §51.402(d), which applies forany State air agency comments on a conformity. determination.

(f) Redetermination ofconformityof the existingtransportation planandTIP accordingto the transitional period criteriaand procedures.(1)The redetermination ofthe conformity ofthe existing transportation plan and TIP according to transitional period criteria and procedures (asrequired by paragraphs (a)(1) and (d)(1) ofthis section) does not require new emissions analysis and does not have to satisfy the requirements of §§ 51.412 and 51.414 if:

(i) The control strategy implementation plan revision submitted
to EPA uses the MPO'smodeling ofthe existing transportation plan and TIP for its projections of motor vehicle emissions; and

(i) The control strategy implementation plan does not include any transportation projects which are not included in the transportation plan and TIP. (2) A redetermination of conformity as described in paragraph (f)(1) ofthis section is notconsidered a conformity determination for the purposes of §51.400(b)(4) or §51.400(c)(4) regarding" the maximum intervals between conformity determinations. Conformity
must be determined according to all the applicable criteria and procedures of § 51.410 within three years ofthe last determination which didnot rely on paragraph (0(1) ofthis section. I (g)Ozonenonattainmentareas.(1) The requirements ofparagraph (b)(1) of this section apply ifa serious orabove

ozone nonattainment area has not submitted the implementation plan revisions which Clean AirAct sections 182(c)(2)(A) and 182(c)(2)(B) requireto be submitted to EPA November 15, 1994, even if the area has submitted the implementation plan revision which Clean AirAct section 182(b)(1) requires
to be submitted to EPA November 15, 1993.

(2) The requirements of paragraph (b)(1) ofthis section apply if a moderate

ozone nonattainment area which is using photochemical dispersion modeling to demonstrate the "specific annual reductions as necessary to attain" required by Clean AirAct section 182(b)(1), and which has permission from EPAto delay submission ofsuch demonstration until November 15, 1994, does not submit such demonstration by that date. The requirements ofparagraph (b)(1) ofthis section apply inthis case even if the

area has submitted the 15% emission reduction demonstration required by Clean Air Act section 182(b)(1).

(3) The requirements ofparagraph (a) ofthis section apply when the implementation plan revisions required by Clean AirAct sections 182(c)(2)(A) and 182(c)(2)(B) are submitted.

(h)Nonattainmentareaswhich are notrequiredtodemonstratereasonable further progressandattainment. Ifan

area listed in §51.464 submits a control strategy implementation plan revision; the requirements ofparagraphs (a) and (e)ofthis section apply. Because the

areas listed in §51.464 are notrequired to demonstrate reasonable further progress and attainment and therefore

. have noClean Air Act deadline, the provisions ofparagraph (b) of this section do notapply tothese areas at any time. (i) Maintenance plans.If acontrol strategy implementation plan revision is
not submitted to EPA buta maintenance plan required by Clean AirAct section 175A is submitted to EPA, the

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requirements ofparagraph (a) or (d) of this section apply, with the maintenance plan submission treated as

a control strategy implementation plan revision" for the purposes ofthose requirements.

§51.450 Requirements foradoption or approval of projects by recipients offunds designated under title23 U.S.C. or the Federal Transit Act

No recipient offederal funds designated under title 23 U.S.C. or the Federal Transit Act shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless there is a currently conforming transportation plan and TIP consistent with the requirements of §51.420 and the requirements ofone ofthe following paragraphs (a) through (e) ofthis section

are met:

(a) The project comes from a conforming plan and program consistent with the requirements of§51.422;

(b) The project is included in the regional emissions analysis supporting the currently conforming TIP's conformity determination, even ifthe project is not strictly "included" in the TIP for the purposes ofMPO project selection or endorsement, and the project's design concept and scopehave
not changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impact use of the facility;

(c) During the control strategy or maintenance period, the project is consistent with the motor vehicle emissions budget(s) in the applicable implementation plan consistent With the requirements of §51.432;

(d) During Phase HI ofthe interim period, the project contributes to emissions reductions or does not increase emissions consistent with the requirements of§ 51.440 (in ozone and CO nonattainment areas) or § 51.446 (in PM 10 and NO 2 nonattainment areas); or (e) During the transitional period, the project satisfies the requirements ofboth paragraphs (c)and (d) ofthis section.
§51.452 Procedures fordearmining regional traneportation-relaled emissions.

(a) Generalrequirements.(1)The regional emissions analysis for the transportation plan, TIP, or project not from a conforming plan and TIP shall include all regionally significant projects expected in the nonattainment

ormaintenance area, including FHWA/ FTA projects proposed in the transportation plan and TIP and all other regionally significant projects which are disclosed to the MPOas required by §51.402. Projects which are not regionally significant are not required to be explicitly modeled, but VMT from such projects must be estimated in accordance with reasonable professional practice. Theeffects of TCMs and similar projects that are not regionally significant may also be estimated in accordance with reasonable professional practice.

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

(3) Emissions reduction credit from projects, programs, or activities which require a regulation in order to be implemented may not be included in the emissions analysis unless the regulation is already adopted by the enforcing jurisdiction. Adopted regulations are required for demand management strategies for reducing emissions which are not specifically identified in the applicable implementation plan, and for control
programs which are external to the transportation system itself, such as tailpipe or evaporative emission standards, limits on gasoline volatility, inspection and maintenance programs, and oxygenated or reformulated gasoline or diesel fuel. A regulatory
program may also be considered to be adopted ifan opt-in to a Federally enforced program has been approved by EPA, ifEPA has promulgated the
program (ifthe control program isa Federal responsibility, such as tailpipe standards), or ifthe Clean Air Act requires the program without need for individual State action and without any discretionary authority for EPA to set its stringency, delay its effective date, or not implement the program.

(4) Notwithstanding paragraph (a)(3) ofthis section, during the transitional period, control measures or programs which are committed to in an implementation plan submission as described in §§ 51.428 through 51.432, but which has not received final EPA action in the form ofa finding of incompleteness, approval, or disapproval may be assumed for emission reduction credit for the
purpose of demonstrating that the requirements of §§ 51.428 through 51.432 are satisfied.

(5) A regional emissions analysis for the purpose ofsatisfying the requirements of §§ 51.436 through 51.440 may account for the programs in paragraph (a)(4) ofthis section, but the

same assumptions about these programs shall be used for both the "Baseline" and "Action" scenarios. ) Serious,severe,andextreme ozone nonattainment areasandseriouscarbon monoxide areas afterJanuary 1, 1995. Estimates ofregional transportationrelated emissions used to support conformity determinations must be made according to procedures which
meet the requirements in paragraphs (b)(1) through (5) ofthis section.

(1) A network-based transportation demand model or models relating travel demand and transportation system performance to land-use patterns, population demographics, employment, transportation infrastructure, and transportation policies must be used to estimate travel within the metropolitan planning area ofthe nonattainment area. Such a model shall possess the following attributes:

(i) The modeling methods and the functional relationships used in the model(s) shall in all respects bein accordance with acceptable professional practice, and reasonable for purposes of emission estimation;

.

(ii) The network-based modells) must be validated against ground counts for a base year that is not more than 10 years prior to the date ofthe conformity determination. Land use, population, and other inputs must be based on the best available information and appropriate to the validation base year-,

(iii)For peak-hour or peak-period traffic assignments, a capacity sensitive assignment methodology must be used;

(iv) Zone-to-zone travel times used to distribute trips between origin and destination pairs must be in reasonable agreement with the travel times which result from the process ofassignment of trips to network links. Where use of transit currently is anticipated tobe a significant factor in satisfying transportation demand, these times should also be used for modeling mode splits;

(v) Free-flow speeds on network links shall bebased on empirical observations;

(vi) Peak and off-peak travel demand and travel times must be provided;

(vii)Trip distribution and mode choice must be sensitive to pricing. where pricing is a significant factor, if the network model is capable ofsuch determinations and the necessary information is available;

(viii) The model(s) must utilize and document a logical correspondence between the assumed scenario ofland development and use and the future transportation system for which

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emissions are being estimated. Reliance

on a formal land-use model is not specifically required but is encouraged;

(ix) A dependence oftrip generation

on the accessibility ofdestinations via the transportation system (including pricing) is strongly encouraged but not specifically required, unless the network model iscapable ofsuch determinations and the necessary information is available;

(x) A dependence ofregional economic and population growth on the accessibility ofdestinations via the transportation system is strongly encouraged but not specifically required, unless the network model is capable ofsuch determinations and the necessary information is available; and

(xi) Consideration of emissions increases from construction-related congestion is not specifically required.

(2) Highway Performance Monitoring System (HPMS)estimates ofvehicle miles traveled shall be considered the primary measure of vehicle miles traveled within the portion ofthe nonattainment or maintenance area and for the functional classes ofroadways included in HPMS, for urban areas which are sampled on a separate urban

area basis. A factor (or factors) shall be developed to reconcile and calibrate the network-based model estimates of vehicle miles traveled in the base year ofits validation to the HPMS estimates for the same period, and these factors shall be applied to model estimates of future vehicle miles traveled. In this factoring process, consideration will be given to differences in the facility
coverage ofthe HPMS and the modeled network description. Departure from these procedures is permitted with the

concurrence ofDOT and EPA.

(3) Reasonable methods shall be used
to estimate nonattainment area vehicle travel on off-network roadways within. the urban transportation planning area, and on roadways outside the urban transportation planning area.

(4)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 oftravel on each roadway segment represented in the network model.

(5)Ambient temperatures shallbe consistent with those used to establish the emissions budget in the applicable implementation plan. Factors otherthan temperatures, for example the fraction oftravel in ahot stabilized engine mode, may be modified after interagency consultation according to §51.402 if thenewer estimates 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.

(c) Areas which are not serious, severe, orextreme ozone nonattainment

areas orserious carbon monoxide areas,

orbefore January 1, 1995. (1)Procedures which satisfy some or all ofthe requirements of paragraph (a) ofthis section shall be used in all areas not subject to paragraph (a) ofthis section in which those procedures have been the previous practice ofthe MPO.

(2) Regional emissions may be estimated by methods which do not explicitly or comprehensively account for the influence ofland use and transportation infrastructure on vehicle miles traveled and traffic speeds and congestion. Such methods must account for VMT growth by extrapolating historical VMT orprojecting future VMT by considering growth in population and historical growth trends for vehicle miles travelled perperson. These methods must also consider future economic activity, transit alternatives, and transportation system policies.

(d) Projects notfrom aconforming plan and TIPin isolatedrural nonattainment and maintenance areas. This paragraph applies to any nonattainment or maintenance area or any portion thereof which does not have

a metropolitan transportation plan or TIP and whose projects are not part of the emissions analysis ofany MPO's metropolitan transportation plan orTIP (because the nonattainment or maintenance area orportion thereof does not contain a metropolitan planning area or portion ofa metropolitan planning area and is not part of aMetropolitan Statistical Area or Consolidated Metropolitan Statistical Area which is or contains a nonattainment or maintenance area).

(1)Conformity demonstrations for projects in these areas may satisfy the requirements of§§ 51.432, 51.440, and 51.446 with one regional emissions analysis which includes all the regionally significant projects inthe nonattainment ormaintenance area (or portion thereof).

(2) The requirements of §51.432 shall be satisfied according to the procedures in §51.432(c), with references to the "transportation plan" taken to mean the statewide transportation plan.

(3) The requirements of§§ 51.440 and 51.446 which reference "transportation plan" or "TIP" shallbe taken to mean those projects in the statewide transportation plan or statewide TIP which are in the nonattainment or maintenance area (orportion thereof). (4) The requirement of§ 51.450(b) shall be satisfied if:

(i) The project is included in the regional emissions analysis which includes all regionally significant highway and transportation projects in the nonattainment or maintenance area (orportion thereof) and supports the
most recent conformity determination. made according to the requirements of §§ 51.432, 51.440, or 51.446 (as modified by paragraphs (d)(2) and (d)(3) ofthis section), as appropriate for the time period and pollutant; and

(ii) The project's design concept and
scope have not changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impact use of the facility.

(e) PM,,O from construction-related fugitive dust. (1) For areas in which the implementation plan does not identify construction-related fugitive PM1 ) as a contributor to the nonattainment problem, the fugitive PMo emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.

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

§51.454 Procedures fordetermining localized CO and PMto concentrations (hotspot analysis).

(a) In the following cases, CO hot-spot analyses must be based on the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51, appendix W ("Guideline on Air Quality Models (Revised)" (1988), supplement A (1987) and supplement B (1993), EPA publication no. 450/2-78-027R), unless, after the interagency consultation
process described in § 51.402 and with the approval ofthe EPA Regional Administrator, these models, data bases, and other requirements are determined to be inappropriate:

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

(2) For those intersections at Level-ofService D, E, or F, or those that will

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change to Level-of-Service D, E. or F because of increased traffic volumes related to a new project in the vicinity;

(3) For any project involving or affecting any ofthe intersections which the applicable implementation plan identifies as the top three intersections in the nonattainment or maintenance

area based on the highest traffic volumes;

(4) For any project involving or affecting any ofthe intersections which the applicable implementation plan identifi6s as the top three intersections in the nonattainment or maintenance

area based on the worst Level-ofService; and

(5) Where use ofthe "Guideline" models is practicable and reasonable given the potential forviolations.

(b)In cases other than those described in paragraph (a) ofthis section, other quantitative methods may be used if they represent reasonable and common professional practice.

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

(d) PMo hot-spot analysis must be performed forprojects which are located

at sites at which violations have been verified by monitoring, and at sites which have essentially identical vehicle and roadway emission and dispersion characteristics (including sites near one at which a violation has been monitored). The projects which require PM,o hot-spot analysis shall be determined through the interagency consultation process required in § 51.402. In PM10 nonattainment and maintenance areas, new or expanded busand rail terminals and transfer points which increase the number of diesel vehicles congregating at a single location require hot-spot analysis. DOT
may choose to make a categorical conformity determination on bus and rail terminals ortransfer points based on appropriate modeling ofvarious terminal sizes, configurations, and activity levels. The requirements ofthis paragraph for quantitative hot-spot 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.

(e) Hot-spot analysis assumptions
must be consistent with those in the regional emissions analysis for those inputs which are required forboth analyses. (f)PMio or COmitigation orcontrol

measures shall be assumed in the hotspot analysis only where there are written commitments from the project
sponsor and/or operator to the implementation ofsuch measures, as

qired by §51.458(a).

gCO and PMo hot-spot analyses are not required to consider constructionrelated activities which cause temporary increases in emissions. Each site which is affected by construction-related activities shallbe 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.
§51.456 Using the motorvehicle emissions budget Inthe applicable Implementation plan for Implmentation plan submission).

(a) Ininterpreting an applicable implementation plan (or implementation plan submission) with respect to its motorvehicle emissions budget(s), the MI and DOTmay not infer additions tothe budget(s) that are not explicitly intended by the implementation plan (orsubmission). Unless theimplementation plan explicitly quantifies the amount by which motorvehicle emissions couldbe higher while still allowing a demonstration of compliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that some or allofthis additional
amount shouldbe available tothe MPO and DOTin the emission budget for conformity purposes, the MPO maynot interpret the budget to be higher than the implementation plan'sestimate of future emissions. This applies in particular to applicable implementation plans (orsubmissions) which demonstrate that after implementation ofcontrol measures in the implementation plan:

(1)Emissions from all sources will be less than thetotal emissions that would be consistent with arequired demonstration ofan emissions reduction milestone;

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

(3) Emissions willbe lower than needed to provide forcontinued maintenance.

(b) Ifan applicable implementation plan submitted before November 24, 1993 demonstrates that emissions from all sources willbe less than the total emissions that would be consistent with attainment and quantifies that "safety margin," the State may submit a SIP revision which assigns some or all of this safety margin to highway and transit mobile sources forthe purposes ofconformity. Such a SIP revision, once it is endorsed by the Governor and has been subject to a public hearing, may be used for the purposes oftransportation conformity before it is approved by EPA.

(c A conformity demonstration shall not trade emissions among budgets which the applicable implementation plan (orimplementation plan submission) allocates fordifferent pollutants or precursors, oramong budgets allocated to motor vehicles and other sources,without a SIPrevision or

a SIP which establishes mechanisms for such trades.

(d) Ifthe applicable implementation plan (orimplementation plan submission) estimates future emissions by geographic subarea ofthe nonattainment area, theMPO and DOT

are not required to consider this to establish subarea budgets, unless the applicable implementation plan (or implementation plan submission) explicitly indicates an intent tocreate such subarea budgets for the purposes of conformity.

(e)Ifa nonattainment area includes

more than one MPO,the SIP may establish motor vehicle emissions budgets for each MPO, orelse theMPOs
must collectively make a conformity determination for the entire nonattainment area. 

### §51.458 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 offunds designated undertitle 23 U.S.C. or the Federal Transit Act,FHWA, orFTA
must obtain from the project sponsor and/or operator written commitments to implement in the construction ofthe project and operation ofthe resulting facility or service any project-level mitigation orcontrol measures which

are identified as conditions forNEPA
process completion with respect to local PMbo or COimpacts. Before making conformity determinations written commitments must alsobe obtained for project-level mitigation or control

measures which are conditions for making conformity determinationsfora transportation plan orTIP and included in the project design concept and scope which is used in the regional emissions analysis required by §§51.428 through 51.432 and §§51.436 through 51.440 or used in the project-level hot-spot

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analysis required by §§ 51.424 and 51.434.

(b)Project sponsors voluntarily committing to mitigation measures to facilitate positiveconfenity determinations must comply withthe obligations ofsuch commitments.

(c)The Implementation plan revision required in §51.396 shall provide that written commitments to mitigation

measures mustbe obtained prior to a positive conformity determination, and that project sponsors must comply with such commitments.

(d)Duringthe control strategy and maintenance periods, iYthe MPO or project sponsorbelieves the mitigation

orcontrol measure is nolonger
necessary for conformity, the project
sponsor or operator maybe relieved of its obligation to implement the mitigation or control measure ifit can demonstrate that the requirements of §§ 51.424, 51.428, and 51.430 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under

- § 51.402. The MPO and DOT must confirm that the transportation plan and TIP still satisfy the requirements of §§ 51.428 and 51.430 andthat the project still satisfies the requirements of § 51.424, and therefore thatthe • conformity determinations 'forthe transportation plan, TIP, and project are still valid.

§51.460 Exempt projects.

Notwithstanding the other requirements ofthis subpart, highway and transit projects ofthe types listed in Table 2 are exempt from the requirement that a conformity determination bemade. Such projects
may proceed toward implementation

even in the absence ofa conforming transportation plan and TIP.A particular action ofthe type listed in Table 2 is not exempt iftheMPO in consultation with other agencies (see §51.402(c)(1)(iii)), the EPA,and the FHWA (inthe case ofe highway project)

orthe FTA (inthe case ofa transit project) concur thatft has potentially adverse emissions impacts for any

reason. States and MPOsmust easuve that exempt projects do notinterfere with TCM implementation.

TABLE 2.-EXEMPT PROJECTS

Safety RalmadWOwny crossing. Hazard elimnillon program. Safer non-Federal-aid system roads. ShouKMr inrovemeds. inreasing sight distance. Safety Improvement pia. Traffic ooWol devioes and operatingassistance other than signalizationprojects. Railroad/highwey crossing warning devices. Guardrails. median barriers, crash cushons. Pavemend resurfacki e/or reh iltation. Pavement makinrg demnstration. Emerjenoy relief (23 U.S.C. 125). Fencing. Skidteatments. Safety roadside rest areas. Adding medians. Truck chimbifg lanes outsidethe urbanized area. Lighting improvements. Widening narrow pavements or reconstucting bridges (no additional travel lanes). Emergency truck pullovers.

Mass Transit Operatingessistancete tensit agencies. Purchase ofsupport vehicles. Rehabilitaien of transitvehicles.' Purchase of office, shop,and opeaing equipmentfor existing facilities. Purchase Of operaingequpmt for vehicles (e.g., radios. fareboxes, lifts, etc.). Construction orvenovation of power,-signal,and communications systems. Constntlonof small passenger sheltersandinformation kiosks. Reconstruction or renovation oftansit buildings and structures (e.g.. rail or busbuildings, storageand maintenance facillies, stations, terminals,

and ancily strucfus). Rehabiltatlo orreconstruction of track structures,track, and track'bed Inexisting rights-of-way, Purchase of new busesand al carsto replace existing vehicles or for minor expansions ofthefleet, Construction of new bus or%ail storage/maintenance facilities categorically excluded in23 CFR part 771.
Air Quality Continuation of ide-sharing andvan-pooling promotion activhtes atcurrent levels. Bicycle andpedestrian facilities.

Other Specificactivities which do not involve or lead directly to construction, suchas: Planning and technicalstudies. Grants fortraining andresearch pregrams. Planning activitiesvooducted pursuant to titles 23 and 49 US.C. Federal-aid systems ravisionis. Engineering to assess mcial, economic, and environmental effects ofthe proposed,actionor,alternativestothat action. Noiseattenuation. Advance landaoquisitions(23 CFR part 712-or 23 CFR part 771). Acquisition of scenic easements. Plantings, landscaping, etc.

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TABLE 2.-EXEMPT 

### PROJECTS-Continued

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 substantialfunctional, locational or capac-

ity changes.

1PM,, nonattainment or maintenance areas, such projects are exempt only ifthey are incompliance with control measures inthe applicable implementation plan.

§ 51.462 Projects exempt from regional emissions analyses.

Notwithstanding the other requirements of this subpart, highway and transit projects of the types listed in Table 3 are exempt from regional emissions analysis requirements. The local effects of these projects with respect to CO or PM2 )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 is not exempt from regional emissions analysis if the MPO in consultation with other agencies (see § 51.402(c)(1)(iii)), the EPA, and the
FHWA (in the case of a highway project)

orthe FTA (in the case of a transit project) concur that it has potential regional impacts for any reason.

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.

§ 51.464 Special provisions for nonattanment areas which are not required to demonstrate reasonable further progress and attainment. (a) Application.This section applies in the following areas:

(1) Rural transport ozone nonattainment areas;

(2) Marginal ozone areas; (3) Submarginal ozone areas; (4) Transitional ozone areas; (5) Incomplete data ozone areas; (6) Moderate CO areas with a design value of12.7 ppm or less; and (7) Not classified CO areas. (b) Default conformityprocedures. The criteria and procedures in §§ 51.436 through 51.440 will remain in effect ,hroughout the control strategy period
for transportation plans, TIPs, and projects (not from a conforming plan and TIP) in lieu ofthe procedures in §§ 51.428 through 51.432, except as otherwise provided in paragraph (c) of this section.

(c)Optionalconformityprocedures. The State or MPO may voluntarily develop an attainment demonstration and corresponding motor vehicle emissions budget like those required in

areas with higher nonattainment classifications. In this case, the State must submit an implementation plan revision which contains that budget and attainment demonstration. Once EPA has approved this implementation plan revision, the procedures in §§ 51.428 through 51.432 apply in lieu of the procedures in §§ 51.436 through 51.440.

3.A new part 93 is added to read as follows:

PART 93-DETERMINING CONFORMITY OF FEDERAL ACTIONS TO STATE OR FEDERAL IMPLEMENTATION PLANS
Subpart A-Conformityto State or Federal Implementation PlansofTransportation Plans, Programs, and Projects Developed, Funded or Approved Under Title23 U.S.C.

orthe Federal TransitAct

Sec. 93.100 Purpose. 93.101 Definitions. 93.102 Applicability. 93.103 Priority. 93.104 Frequency ofconformity determinations. 93.105 Consultation. 93.106 Content oftransportation plans.

93.107 Relationship oftransportation plan and TIP conformity with the NEPA process. 93.108 Fiscal constraints for transportation plans and TIPs. 93.109 Criteria and procedures for determining conformity of transportation plans, programs, and projects: General. 93.110 Criteria and procedures: Latest planning assumptions. 93.111 Criteria and procedures: Latest emissions model. 93.112 Criteria and procedures: Consultation. 93.113 Criteria and procedures: Timely implementation ofTCMs. 93.114 Criteria and procedures: Currently conforming transportation plan and TIP. Sec. 93.115 Criteria and procedures: Projects from a plan and TIP. 93.116 Criteria and procedures: Localized CO and PM,, violations (hot spots). 93.117 Criteria and procedures: Compliance with PM,, control measures. 93.118 Criteria and procedures: Motor vehicle emissions budget (transportation plan). 93.119 Criteria and procedures: Motor vehicle emissions budget (TIP). 93.120 Criteria and procedures: Motor vehicle emissions budget (project not from a plan and TIP). 93.121 Criteria and procedures: Localized CO violations (hot spots) in the interim period. 93.122 Criteria and procedures: Interim period reductions in ozone and CO areas (transportation plan). 93.123 Criteria and procedures: Interim period reductions in ozone and CO areas (TIP). 93.124 Criteria and procedures: Interim period reductions for ozone and CO

areas (project not from a plan and TIP). 93.125 Criteria and procedures: Interim period reductions for PM, 0 and NO 2 areas (transportation plan). 93.126 Criteria and procedures: Interim period reductions for PM,, and NO 2 areas (TIP). 93.127 Criteria and procedures: Interim period reductions for PM,0 and NO2 areas (project not from a plan and TIP). 93.128 Transition from the interim period to the control strategy period. 93.129 Requirements for adoption or approval of projects by other recipients of funds designated under title 23 U.S.C. or the Federal Transit Act. 93.130 Procedures for determining regional transportation-related emissions. 93.131 Procedures for determining localized CO and PMo concentrations (hot-spot analysis). 93.132 Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission). 93.133 Enforceability ofdesign concept and
scope and project-level mitigation and control measures. 93.134 Exempt projects. 93.135 Projects exempt from regional emissions analyses. 93.136 Special provisions for nonattainment areas which are not required to demonstrate reasonable further progress and attainment. Authority: 42 U.S.C. 7401-7 6 71p.

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### 1 Wednesday, November 24, 1993 / Rules and Regulations 62235

Subpart A-Coalnnt to Stateor Federal Implementalion Plans of 

### Transp halls Planrogramsand Prodecs Developed, Fundedor Approved Under TIte23 U.&C. or the Federal Tranmil Act

§93.100 Purpose.

The purpose ofthis subpart is to implement section 176(c) oftheClean AirAct 4CAA), asameaded (42 U.S.C. 7401 etseq.),eand t related requirements of23 U.S.C. 109(j), with respect to the conformity of transportation plane, programs, and projects whidh are developed, hinded, or approved by the United States Department -ofTransportation (DOT), and by metropolitan planning organizations OMPOs) or odrer recipients of funds under title 23 U.S.C. or the Federal Transit Act (49 U.S.C 1,601 et seq.). This subpart sets forthpolicy, criteria, and procedures for demonstrating and *ssurlog conformity of such activities to an applicable implementation plan developed pursuant to section 110 and Part D of the CAA.
§QM161 Oeftnlton&

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

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

CAA means the Clean Air Act, as amended. Causeorcontributetoanew violation for a project means:

(1) To cause or contribute to a new violation of a standard in the area substantially affected by theproject or

over aregion which would otherwise
not be in violation ofthe standard during thefuture period in question, if the project were not implemented, or

(2) To contribute to a new violation in

a manner that would increase the frequencyor severityof'anew violation ofa standard in such area. Controlstrategyimplementation plan revisionis the epplicable implemenation plan which contains specific strategies foroontrolling the emissions of4nd redncing ambient levels ofpolltants in oderto satisfy CAA requirements fordemonstrations of reasonable fu'ther progress and attainment (CAA sections 182(b)(1), 182(c)(2)(A), 182(c)(H2B), 187(aH7), 189(a)(1)(B

.and 1.,gtb)(1)(A); end sections 192(a) and 192(b), for nitrogen dioxide).

Controlstrategy periodwith respect to particulate matter lessthan 10 microns in diameter (PM 30),carbon monoxide (CO), nitrogen dioxide (NO2),and/"or

ozone precursors (volatileorganic compounds and oxidesof nitrogen),

means that period oftine after EPA
approves control strategy implementation planrevisions containing strategies Torcontrolling PM 30 , NO2, CO, and/or ozone, as appropriate.This period ends when a State submits and EPA approves a request under section 1071d) ofthe CAA for redesignation toan attainment area.

Designconcept means the type of facility identified by the project, e.g., freeway, expressway, arterial highway, grade-separated highway, reserved rightof-way rail transit, mixed-traffic rail transit, exclusive busway, etc.

Designscope means the design aspects which will affectthe proposed facility's impact on regional emissions. usually as theyrelate to vehicle or person carrying capacity and ontrol,

e.g., number of lanes or tracks to be constructed or added, length ofproject, signatization, access control including approximate number and location of interchanges, preferential treatment for high-occupancy vehicles, etc.

DOTmeans theUnited States Department ofTransportation.

EPA means the Environmental Protection Agency.

FHWA means the Federal Highway Administration ofDOT.

FHWAIFTA project,for the purpose of this subpart,is any highway or transit project which isproposed to receive funding assistance and approval through theFederal-Aid Highway
program or the Federal mass transit
program. orrequires Federal Highway Administration (FHWA)or Federal Transit Administration fFTA) approval for some aspect oftheproject, such as connection to an interstate highway or deviation from applicable design standards onthe interstate system.

FTA means the Federal Transit Administration ofDOT.

Forecast periodwith respect to a transportation plan is the period covered by thetransportation plan pursuant to 23 CFR-part450.

Highwayprojectis an undertaking to implement ormodify a highway facility

or highway-related program. Such an undertaidng consists of allrequired phases necessary for implementation. For analytical purposes, it must be defined sufficiently to:

41) Connect 4ogical termini and be of sufficient length 'to address environmental matters on a bread scope; (2) Have independent utility or significance, i.e.,be usable and be a reasonable expenditure even if no additionaitranspor4ation improvements inthe area are made; and

(3) Not restrict consideration of alternatives -forotherreasonably foreseeable transportation improvements.

Horizonyear-isayear forwhich the transportation plan describes the envisioned transportation system according to §93.206.

Hot-spot analysisis an estimation -of likely future localized GO and PMm pollutant concentrations and a comparison ofthose concentrations to the national ambient airquality standards. Pollutant-oncentrations to be estimated should bebasedon the total emissions burden whichmay result from theimplementation ofa single, specific projectsummed together with future baclgroand concentrations (whichcam be estimated usingtheratio offuture to curmnt traffic multiplied by thexatio of fture to
current emission factors) expected in the area. The total concentration must be estimated and analyzed at appropriate receptor locations in the

area substantially affected by the project. Hot-spot analysis assesses impacts on a scale smaller than the entire nonattainment ormaintenance

area, including, for example, congested roadway intersections and highways or transit terminals, and uses an-air quality dispersion model -todetermine the effects ofemissions on airiquality.

Incomplete dataareameans any

ozone nonattainmentaroa which EPA has classified, in 40 CFR part 81, as an incomplete data area.

Increase the frequency orseverity

means to

- ause a location orregion to exceed a standard more often orto 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.

ISTEA means theIntermodal Surface Transportation Efficiency Act of 1991.

Maintenanoeareameans any geographic region ofthe United States previously designated nonattainment pursuant to the CAA Amendments of 1990 and subsequently redesignated to attainment subject to the requirement lo develop amaintenance plan under section 175A ofthe CAA, as amended.

Maintenance periodwith respect to a pollutant orpollutant precursor means

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that period oftime beginning when a State submits and EPA approves a request under section 107(d) ofthe CAA for redesignation to an attainment area, and lasting for 20 years, unless the applicable implementation plan specifies that the maintenance period shall last for more than 20years.

Metropolitan planningorganization (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. 1607. It is the forum for cooperative transportation decisionmaking.

Milestonehas the meaning given in sections 182(g)(1) and 189(c) ofthe CAA. A milestone consists ofan emissions level and the date on which it is required to be achieved.

Motorvehicle emissionsbudgetis that portion ofthe total allowable emissions defined in a revision to the applicable implementation plan (or in an implementation plan revision which

was endorsed by the Governor orhis or herdesignee, subject to a public hearing, and submitted to EPA, but not yet approved by EPA) for a certain date forthe purpose ofmeetingreasonable further progress milestones or attainment ormaintenance demonstrations, for any criteria pollutant or its precursors, allocated by the applicable implementation plan to highway and transit vehicles. The applicable implementation plan for an
ozone nonattainment area may also designate amotor vehicle emissions budget for oxides ofnitrogen (NOx) for

a reasonable further progress milestone
year if the applicable implementation plan demonstrates that this NOx budget will be achieved with measures in the implementation plan (as an implementation plan must do forVOC milestone requirements). The applicable implementation plan for an ozone nonattainment area includes a NOx budget ifNOx reductions are being substituted for reductions in volatile organic compounds in milestone years required for reasonable further progress.

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

NEPA means the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.).

NEPAprocesscompletion,for the
purposes ofthis subpart, with respect to FHWA or FTA, means the point at which there is a specific action to make

a determination that a project is categorically excluded, to make a Finding ofNo Significant Impact, or to issue a record ofdecision on a Final Environmental Impact Statement under NEPA.

Nonattainmentareameans any geographic region ofthe United States which has been designated as nonattainment undersection 107 ofthe CAA for any pollutant for which a national ambient air quality standard exists.

Notclassified areameans any carbon monoxide nonattainment area which EPA has not classified as either moderate or serious.

PhaseIIoftheinterim periodwith respect to a pollutant or pollutant precursor means that period oftime after the effective dateofthis rule, lasting until the earlier ofthe following: submission to EPA ofthe relevant control strategy implementation plan revisions which have been endorsed by the Governor (orhis or her designee) and have been subject to a public hearing, or the date that the Clean Air Actrequires relevant control strategy implementation plans to be submitted to EPA, provided EPA hasnotified the State, MPO, and DOTofthe State's failure to submit any such plans. The precise end ofPhase IIofthe interim period is defined in §93.128.

Projectmeans a highway project or transit project.

Recipientof funds designatedunder title23 U.S.C. ortheFederalTransit Act

means any agency at any level of State, county, city, or regional government that routinely receives title 23 U.S.C. or Federal Transit Act 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.

Regionallysignificant projectmeans a
transportation project (otherthan an exempt project) that is on a facility which serves regional transportation needs (suchas access to and from the

area outside ofthe region, major activity centers in the region, major planned developments such as new retail malls, sports complexes, etc., ortransportation terminals as well as most terminals themselves) and would normally be included in the modeling ofa metropolitan area's transportation network, including at a minimum all principal arterial highways and all fixed guideway transit facilities that offer an alternative to regional highway travel.

Ruraltransport ozonenonattainment

areameans an ozone nonattainment area that does not include, and is not adjacent to, any part ofa Metropolitan Statistical Area or,where one exists, a Consolidated Metropolitan Statistical Area (as defined by the United States Bureau ofthe Census) and is classified under Clean Air Act section 182(h) as a rural transport area. Standard means a national ambient air quality standard.

Submarginal areameans any ozone nonattainment area which EPA has classified as submarginal in 40 CFR part 81.

Transitis mass transportation by bus, rail, or other conveyance which provides general or special service to the public on a regular and continuing basis. It doesnot include school buses

or charter or'sightseeing services. Transit projectis 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 notinclude actions that are solely within the jurisdiction of local transit agencies, such as changes in routes, schedules, orfares. It may consist ofseveral phases. For analytical purposes, it mustbe 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 ifno additional transportation improvements in the area are made; and

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

Transitional areameans any ozone nonattainment area which EPA has classified as transitional in 40 CFR part 81.

Transitional period with respect to a pollutant or pollutant precursor means that period oftime which begins after submission to EPA ofthe relevant control strategy implementation plan which has been endorsed by the Governor (orhis orher designee) and has been subject to a public hearing. The transitional period lasts until EPA takes final approval ordisapproval action onthe control strategy implementation plan submission or finds it to be incomplete. The precise beginning and end ofthe transitional period is defined in §93.128. Transportation controlmeasure (TCM) is any measure that is specifically identified and committed to inthe. applicable implementation plan that is either one ofthe types listed in § 108 of the CAA, orany other measure for the 1993 / Rules and Regulations

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purpose ofreducing emissions or concentrations ofair 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 ofthis subpart.

Transportation improvementprogram (TIP)means a staged, multiyear, intermodal program oftransportation projects covering a metropolitan planning area which is consistent with the metropolitan transportation plan, and developed pursuant to 23 CFR part 450.

Transportation planmeans the official intermodal metropolitan transportation plan that is developed through the metropolitan planning
process for the metropolitan planning

area, developed pursuant to 23 CFR part 450. Transportation projectis a highway project or a transit project.
§93.102 Applicability.

(a) Action applicability. (1) Except as provided for in paragraph (c) ofthis section or §93.134, conformity determinations are required for:

(i) The adoption; acceptance, approval

or support oftransportation plans developed pursuant to 23 CFR part 450

or49 CFR part 613 by an MPO or DOT;

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

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

(2) Conformity determinations are not required under this rule for individual projects which are not FHWA/FTA projects. However, § 93.129 applies to such projects ifthey are regionally significant.

(b) Geographic applicability. (1)The provisions of this subpart shall apply in all nonattainment and maintenance

areas for transportation-related criteria pollutants for which the area is designated nonattainment or has a maintenance plan. (2) The provisions ofthis subpart 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 (PMo).

(3) The provisions ofthis subpart apply with respect to emissions ofthe following precursor pollutants:

(i) Volatile organic compounds and nitrogen oxides in ozone areas (unless the Administrator determines under section 182(f) ofthe CAAthat additional reductions ofNOx would not contribute
to attainment);

(ii) Nitrogen oxides in nitrogen dioxide areas; and (iii)Volatile organic compounds, nitrogen oxides, and PM1o in PM,0 areas if:(A)During the interim period, the EPA Regional Administrator orthe director ofthe State air agency has made

a finding that transportation-related
precursor emissions within the nonattainment area are a significant contributor to the PM,0 nonattainment problem and has so notified the MPO and DOT; or

(B)During the transitional, control strategy, arid maintenance periods, the applicable implementation plan (or implementation plan submission) establishes abudget for such emissions

aspart ofthe reasonable further
progress, attainment or maintenance strategy.

(c)Limitations.(1)Projects subject to thisregulation for which the NEPA
process and a conformity determination have been completed by FHWA or FTA
may proceed toward implementation without further conformity determinations ifone ofthe following major steps has occurred within the past three years: NEPA process completion;
start of final design; acquisition ofa significant portion ofthe right-of-way;

or approval ofthe plans, specifications and estimates. All phases of such projects which were considered in the conformity determination are also included, ifthose phases were-for the
purpose of funding, final design, rightof-way acquisition, construction, or any combination of these phases.

(2) A new conformity determination for the project willbe required ifthere is a significant change in project design concept and scope, ifa supplemental environmental document for air quality purposes is initiated, orifnomajor steps to advance the project have occurred within the past three years.
§93.103 Priority.

When assisting or approving any action with air quality-related
consequences, FHWA and FTA shall give priorityto the implementation of those transportation 'portions ofan applicable implementation plan prepared to attain and maintain the NAAQS. This priority shall be consistent with statutory requirements forallocation offunds among States or otherjurisdictions. §93.104 Frequency of conformity determlnatiohs.

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

(b) Transportation plans.(1) Each

new transportation plan must be found

to conform before the transportation plan is approved by the MPO or accepted by DOT.

(2) All transportation plan revisions
must be found to conform before the transportation plan revisions are approved by MPO or accepted by DOT, unless the revision merely adds or deletes exempt projects listed in § 93.134. The conformity determination

must be based on the transportation plan and the revision taken as a whole.

(3) Conformity of existing transportation plans must be redetermined within 18 months ofthe following, orthe existing confrmity determination will lapse:

(i) November 24, 1993; (ii)EPA approval ofan implementation plan revision which:

(A) Establishes or revises a transportation-related emissions budget (as required by CAA sections 175A(a), 182(b)(1), 182(c)(2)(A), 182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 192(a) and 192(b), for nitrogen dioxide); or (B) Adds, deletes, or changes TCMs; and (iii)EPA promulgation ofan implementation plan which establishes

orrevises a transportation-related emissions budget or adds, deletes, or changes TCMs.

(4) In any case, conformity determinations must be made no less frequently than every three years, or the existing conformity determination will lapse.

(c) Transportation improvement

programs.(1) A new TIP must be found

to conform before the TIP is approved by the MPO or accepted by DOT. (2) A TIP amendment requires a new conformity determination for the entire TIP before the amendment is approved by the MPO or accepted by DOT, unless the amendment merely adds or deletes exempt projects listed in § 93.134.

(3) After an MPO adopts anew or revised transportation plan, conformity

mustbe redetermined by the MPO and DOT within six months from the date of adoption ofthe plan, unless the new or revised plan merely adds or deletes exempt projects listed in § 93.134. Otherwise, the existing conformity determination for the TIP will lapse.

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(4) In any case, conformity determinations must be made no less frequently than every three years or the existing conformity determinatiornwill lapse.

(d) Projects.FHWA/FTA projects
must be found to conform before they

are adopted, accepted, approved, or funded. Conformity must be redetermined for any FHWA/FTA project ifnone of the following major steps has occurred within the past three
years: NEPA process completion; start of final design; acquisition ofa significant portion of the right-of-way; or approval ofthe plans, specifications and estimates. §93.105 Consultation.

(a) General.The implementation plan revision required under § 51.396 of this chapter will include procedures for interagency consultation (Federal, State. and local), and resolution ofconflicts.

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

(2) Before the implementation plan revision is approved by EPA, MPOs and State departments oftransportation before making conformity determinations must provide reasonable opportunity for consultation with State air agencies, local air quality and transportation agencies, DOT, and EPA, including consultation on the issues described in paragraph (c)(1) of this section.

(b) Interagencyconsultation procedures:General factors.(1) States will provide in the implementation plan well-defined consultation procedures whereby representatives ofthe MPOs, State and local air quality planning agencies, State and local transportation agencies, and other organizations with responsibilities for developing, submitting, or implementing provisions ofan implementation plan required by the CAA must consult with each other and with local or regional offices of EPA, FHWA, and FTA on the development ofthe implementation plan, the transportation plan, theTIP, and associated conformity determinations.

(2) Interagency consultation procedures will include at aminimum the general factors listed below and the specific processes in paragraph (c)of this section: (i) The roles and responsibilities assigned to each agency at each stage in the implementation plan development
process and the transportation planning
process, including technical meetings;

(ii) The organizational level ofregular consultation;

(iii) A process for circulating (or providing ready access to) draft documents and supporting materials for

comment before formal adoption or publication;

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

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

(vi) A process for the development of

a list of theTCMs which are in the applicable implementation plan.

(c)Interagencyconsultation procedures:Specificprocesses. Interagency consultation procedures will also include the following specific
processes:

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

. (i) Evaluating and choosing a model (or models) and associated methods and assumptions to be used in hot-spot analyses and regional emissions analyses; (ii Determining which minorarterials and other transportation projects should be considered "regionally significant" for the purposes ofregional emissions analysis (in addition to those functionally classified as principal arterial or higher or fixed guideway systems or extensions that offer an alternative to regional highway travel), and which projects should be considered to have a significant change in design concept and scope from the transportation plan or TIP;

(iii)Evaluating whether projects otherwise exempted from meeting the requirements ofthis subpart (see §§ 93.134 and 93.135) should be treated

as non-exempt in cases where potential adverse emissions impacts may exist for

any reason; iv)Making a determination, as required by § 93.113(c)(1), whether past obstacles to implementation ofTCMs which are behind the schedule established in the applicable implementation plan have been identified and are being overcome, and whether State and local agencies with influence over approvals or funding for TCMs are giving maximum priority to approval orfunding for TCMs.This
process shall also consider whether delays in TCM implementation necessitate revisions to the applicable implementation plan to remove TCMs

or substitute TCMs or other emission reduction measures;

(v) Identifying, as required by § 93.131(d), projects located at sites in PMgo 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 PM1o hot-spot analysis; and

(vi) Notification oftransportation plan

orTIP revisions or amendments which merely add or delete exempt projects listed in § 93.134.

(2) A process involving the MPO and State and local air quality planning agencies and transportation agencies for the followin&:

(i)Evaluating events which will trigger new conformity determinations in addition to those triggering events established in § 93.104; and

(ii) Consulting on emissions analysis for transportation activities which cross the borders of MPOs ornonattainment

areas or air basins.

(3) Where the metropolitan planning

area does not include the entire nonattainment or maintenance area, a process involving the MPO and the State department oftransportation for cooperative planning and analysis for
purposes ofdetermining conformity of all projects outside the metropolitan

area and within the nonattainment or maintenance area. (4)A process to ensure that plans for construction ofregionally significant projects which are not FHWA/FTA projects (including projects for which alternative locations, design concept and scope, orthe no-build option are still being considered), including those by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act, are disclosed to the MPO on a regular basis, and to ensure that any changes to those plans are immediately disclosed;

(5) A process involving the MPO and other recipients of funds designated under title 23 U.S.C. or the Federal Transit Act for assuming the location and design concept and scope of projects which are disclosed to the MPO

as required by paragraph (c)(4) of this section but whose sponsors have not yet decided these features, in sufficient detail to perform the regional emissions analysis according to the requirements of§ 93.130.

(6)A process forconsulting on the design, schedule, and funding of research and data collection efforts and regional transportation model 1993 / Rules and Regulations

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development by the MPO (e.g., household/travel transportation surveys).

(7)A process (including Federal agencies) for providing final documents (including applicable implementation plans and implementation plan revisions) and supporting information to each agency after approval or adoption.

(d) Resolvingconflicts.Conflicts among State agencies or between State agencies and an MPO shall be escalated
to the Governor ifthey cannot be resolved by the heads ofthe involved agencies. The State air agency has 14 calendar days to appeal to the Governor afterthe State DOT orMPO has notified the State air agency head ofthe resolution ofhis or her comments. The implementation plan revision required by §51.396 ofthis chapter shall define the procedures for starting ofthe 14-day clock. Ifthe State air agency appeals to the Governor, the final conformity determination must have the

concurrence ofthe Governor. Ifthe State air agency doesnot appeal to the Governor within 14 days, the MPO or State department oftransportation may proceed with the final conformity determination. The Governor may delegate his or herrole in this process, butnot to the head or staff ofthe State

or local air agency, State department of transportation, State transportation commission or board, oran MPO.

(e)Public consultationprocedures. 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 prior to taking formal action on a conformity determination for all transportation plans and TIPs, consistent with the requirements of23 CFR part 450. In addition, these agencies must specifically address in writing all public
comments that known plans for a regionally significant project which is
not receiving FHWA or FTA funding or approval have not been properly reflected in the emissions analysis supporting a proposed conformity finding fora transportation plan orTIP. These agencies shall also provide opportunity for public involvement in conformity determinations for projects where otherwise required by law. §93.106 Content of transportation plans.

(a) Transportation plansadoptedafter January1, 1995 inserious,severe, or extremeozonenonattainmentareasand in seriouscarbonmonoxide nonattainmentareas. The transportation plan must specifically describe the transportation system envisioned for certain future years which shall be called horizon years.

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

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

(ii) The first horizon year may beno
more than 10 years from the base year used to validate the transportation demand planning model.

(iii) Ifthe attainment year is in the time span ofthe transportation plan, the attainment year must be ahorizon year.

(iv) The last horizon year must be the last yearof the transportation plan's forecast period.

(2) For these horizon years: (i)The transportation plan shall quantify and document the demographic and employment factors influencing expected transportation demand, including land use forecasts, in accordance with implementation plan provisions and 

### §93.105;

(ii) The highway and transit system shall be described in terms ofthe regionally significant additions or modifications to theexisting 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 ofits 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 oftheir 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

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

(b)Moderateareasreclassifiedto serious.Ozone orCOnonattainment

areas which are reclassified from moderate to serious must meetthe requirements ofparagraph (a)ofthis section within two years from the date ofreclassification.

(c) Transportation plans forother

areas.Transportation plans for other

areas must meet the requirements of paragraph (a)of this section at least to the extent it hasbeen the previous practice ofthe 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§§ 93.109 through 93.127.

(d) Savings.The requirements ofthis section supplement other requirements of applicable law or regulation governing the format or content of transportation plans.
§93.107 Relationship of transportation plan and TIP conformity with the NEPA process.

The degree ofspecificity required in the transportation plan and the specific travel network assumed for air quality modeling do not preclude the consideration ofalternatives 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 orTIP, the project must meet the criteria in §§ 93.109 through 93.127 for projects not from aTIP before NEPA process completion.
§93.108 Fiscal constraints for transportation plans and TIPs.

Transportation plans and TIPs must be fiscally constrained consistent with DOT's metropolitan planning regulations at 23 CFR part 450 in order to be found in conformity.
§93.109 Criteria and procedures for determining conformity oftransportation plans,programs, and projects: General.

(a)In orderto be found to conform, each transportation plan, program, and FHWA/FTA project must satisfy the applicable criteria and procedures in §§ 93.110 through 93.127 as listed in Table I in paragraph (b)ofthis section, and must comply with all applicable conformity requirements of implementation plans and ofcourt orders for the area which pertain specifically to conformity determination requirements. The criteria formaking conformity determinations differ based

on the action under review (transportation plans, TIPs, and FHWA/ FTA projects), the time period in which the conformity determination is made, and the relevant pollutant.

(b)The following table indicates the criteria and procedures in 

### §§ 93.110

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through 93.127 which apply for each
through 93.127 which apply for each action in each time period.

TABLE 1.- CONFORMITY CRITERIA

Action I Criteria

All Periods

Transportation Plan

... §§93.110, 93.111.

93.112, 93.113(b). TIP

............................. §§93.110, 93.111,

93.112, 93.113(c). Project (From a con- §§93.110, 93.111,

forming plan and 93.112, 93.114, TIP). 93.115, 93.116, 93.117. Project (Not from a §§93.110, 93.111,

conforming plan 93.112, 93.113(d), and TIP). 93.114, 93.116, 93.117.

Phase Nof the Interim Period

Transportation Plan

... §§93.122, 93.125. TIP

............................. §§93.123, 93.126. Project (From a con- §93.121.

forming plan and TIP). Project (Not from a §93.121, 93.124,

conforming plan 93.127. and TIP).

Transitional Period

Transportation Plan

... §§93.118, 93.122,

93.125. TIP

.......... §§93.119, 93.123, 93.126. Project (From a con- §93.121.

forming plan and TIP). Project (Not from a §§93.120, 93.121,

conforming plan 93.124, 93.127 and TIP).

Control Strategy and Maintenance Periods

Transportation Plan

... §93,118. TIP

............................. §93119. Project (From a con- No additional criteria.

forming plan and TIP). Project (Not from a §93.120.

conforming plan and TIP).

93.110 The conformity determination must be based on the latestplanning assumptions. 93.111 The conformity determination must bebased on the latestemission estimation model available. 93.112 The MPO must make the conformity determination according to the consultation procedures of this rule and theimplementation plan revision required by § 51.396 ofthis chapter. 93.113 The transportation plan, TIP, or FHWA/FTA project which is not from a conforming plan and TIPmust provide for the timely implementation ofTCMs from the applicable implementation plan. 93.114 There mustbe a currently conforming transportation plan and currently conforming TIPat the time of project approval. 93.115 The project mustcome from a conforming transportation plan and
program. 93.116 The FHWA/FTA project must not

cause orcontribute to any new localized COor PMjo violations or increase the frequency orseverity ofany existing CO

or PM 1oviolations in COand PM~o nonattainment and maintenance areas. 93.117 The FHWA/FTA project must comply with PM1ocontrol measures in the applicable implementation plan. 93.118 The transportation plan must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan orimplementation plan submission. 93.119 The TIP must be consistent with the
motor vehicleemissions budget(s) in the applicable implementation plan or implementation plan submission. 93.120 The project.which is not from a conforming transportation plan and conforming TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan or implementation plan submission. '93.121 The FHWA/FTA project must eliminate orreduce the severity and number of localized CO violations in the

area substantially affected by the project (inCO nonattainment areas). 93.122 The transportation plan must contribute to emissions reductions in

ozone and COnonattainment areas. 93.123 The TIP must contribute to emissions reductions in ozone and CO nonattainment areas. 93.124 The project which is not from a conforming transportation plan andTIP
must contribute to emissions reductions in ozone and COnonattainment areas. 93.125 The transportation plan must contribute to emission reductions or must not increase emissions in PM1oand NO 2nonattainment areas. 93.126 The TIP must contribute to emission reductions or must not increase emissions in PM 1oand NO 2 nonattainment areas. 93.127 Theproject which is not from a conformingtransportation plan and TIP
must contribute to emission reductions
or must not increase emissions in PMIo and NO2nonattainment areas.
§93.110 Criteria and procedures: Latest planning assumptions.

(a) The conformity determination, with respect to all other applicable criteria in §§ 93.111 through 93.127,

must bebased upon the most recent planning assumptions in force at the time ofthe conformity determination. This criterion applies during all periods. The conformity determination must satisfy the requirements ofparagraphs (b) through (fJ ofthis section.

(b) Assumptions must be derived from the estimates ofcurrent and future population, employment, travel, and congestion most recently developed by the MPO or other agency authorized to make such estimates and approved by the MPO. The conformity determination
must also be based on the latest assumptions about current and future background concentrations.

(c)The conformity determination for each transportation plan and TIP must discuss how transit operating policies (including fares and service levels) and assumed transit ridership have changed since the previous conformity determination.

(d)The conformity determination must include reasonable assumptions about transit service and increases in transit fares and road and bridge tolls

over time.

(e) The conformity determination
must use the latest existing information regarding the effectiveness ofthe TCMs which have already been implemented.

(f)Key assumptions shall be specified and included in the draft documents and supporting materials used for the interagency and public consultation required by §93.105.
§93.111 Criteriaand procedures: Latest emissions model. (a)The conformity determination
must be based on the latest emission estimation model available. This criterion applies during all periods. It is satisfied ifthe most current version of the motorvehicle emissions model specified by EPA foruse in the preparation or revision of implementation plans in that State or

area is used forthe conformity analysis. Where EMFAC is the motor vehicle emissions model used in preparing or revising the applicable implementation plan, newversions mustbe approved by EPA before they are used inthe conformity analysis.

(b) EPA will consult with DOT to establish a grace period following the specification ofany-new model.

(1)The grace period willbe no less than three months and no more than 24 months afternotice of availability is published in the Federal Register.

(2) The length ofthe grace period will depend on the degree ofchange in the model and the scope ofre-planning likely to be necessary by MPOs in order
to assure conformity. Ifthe grace period willbe longer than three months, EPA will announce the appropriate grace period in the Federal Register.

(c)Conformity analysesfor which the emissions analysis was begun during the grace period or before the Federal Register notice ofavailability ofthe latest emission model may continue to

use the previous version ofthe model 62240 Federal Register / Vol. 58,

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### I Vol. 58, No. 225 

### I Wednesday, November 24, 1993 / Rules and Regulations 62241

for transportation plans and TIPs. The previous model may also be used for projects ifthe analysis was begun during the grace period or before the Federal Register notice ofavailability, provided nomore than three years have passed since the draft environmental document was issued. 

### §93.112 Criteria and procedures: Consultation.

The MPO must make the conformity determination according to the consultation procedures in thisrule and in the implementation plan revision required by § 51.396 of this chapter, and according to the public involvement procedures established by theMPO in compliance with 23 CFRpart 450. This criterion applies during all periods. Until the implementation plan revision required by §51.396 ofthischapter is approved by EPA, the conformity determination must be made according
to the procedures in 

### §§ 93.105(a)(2) and 93.105(e). Once the implementation plan revision hasbeen approved by EPA, this criterion is satisfied if the conformity determination is made consistent with the implementation vlan's consultation requirements.
§93.113 Criteria andprocedures: Timely imolementaton ofTCM&.

(a)The transportation plan, TIP, or FHWA/FTA project which is not from a conforming plan and TIP must provide forthe timely implementation ofTCMs from the applicable implementation plan. Thiscriterion applies during all periods.

(b)Fortransportation plans, this criterion is satisfied if the followingtwo conditions are met: (1)The transportation plan, in describing the envisioned future transportation system, provides forthe timely completion or implementation of all TCMs inthe applicable implementation plan which are eligible for funding under title 23 U.S.C. or the Federal Transit Act, consistent with schedules included in theapplicable implementation plan.

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

(c) ForTIPs, thiscriterion is satisfied ifthe following conditions are met:

(1)An examination ofthe 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 Act are onor ahead of the schedule established in the applicable implementation plan, or,if such TCMs are behind the schedule established in the applicable implementation plan, the MPO and DOThave determined that past obstacles to implementation ofthe TCMs have been identified and have been or arebeing overcome, and that all State and local agencies with influence

over approvals or funding forTCMs are giving maximum priority to approval or funding ofTCMs over other projects within their control, including projects in locations outside the nonattainment or maintenance area.

(2) IfTCMs in the applicable implementation plan have previously been programmed for Federal funding but the funds have notbeen obligated and the TCMs are behind the schedule in the implementation plan, then the TIP cannot be found to conform ifthe funds intended forthose TCMs are reallocated to projects in theTIP other than TCMs, or ifthere are no other TCMs in the TIP, ifthe funds are reallocated to projects in the TIP other than projects which are eligible for Federal funding under ISTEA's Congestion Mitigation and Air Quality Improvement Program.

(3) Nothing in theTIP may interfere with the implementation ofany TCM in the applicable implementation plan.

(d)For FHWA/FTA projects which

are not from a conforming transportation plan and TIP, this criterion is satisfied ifthe project does
not interfere with the implementation of
any TCM inthe applicable implementation plan. 

### §93.114 Criteriaand procedures: Currentlyconforming transportation plan and TIP.

There mustbe a currently conforming transportation plan and currently conforming TIP at the time ofproject approval. This criterion applies during all periods. Itis satisfied if the current transportation plan and TIPhave been found to conform to the applicable implementation plan by the MPO and DOT according to the procedures ofthis subpart. Only one conforming transportation plan orTIP may exist in

an area at any time; conformity determinations ofaprevious transportation plan or TIP expire once the current plan orTIPis found to conform by DOT. The conformity determination on a transportation plan

orTIP will also lapse ifconformity is
not determined according to the frequency requirements of §93.104. 

### §93.115 Criteria and procedures: Projects fromaplanand TIP.

(a)The project must come from a conforming plan and program. This criterion applies during all periods. If this criterion is not satisfied, the project
must satisfy all criteria in Table I for a project not from a conforming transportation plan and TIP. A project is considered to be from aconforming transportation plan ifitmeets the requirements ofparagraph (b) ofthis section and from aconforming program -if

it meets the requirements ofparagraph (c) ofthis section.

(b) A project is considered to be from

a conforming transportation plan ifone ofthe following conditions applies:

(1)For projects which are required to be identified inthe transportation plan in order to satisfy §93.106, the project is specifically included in the conforming transportation plan and the project's design concept and scope have
notchanged significantly from those which were described in the transportation plan, or in amanner 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 andpurpose ofthe transportation plan and will not interfere with other projects specifically included in the transportation plan.

(c)A project is considered to be from

aconforming program ifthe following econditions are met: (1)The project is included in the conforming TIP and the design concept and scope ofthe project were adequate
at the time ofthe TIP conformity determination to determine its contribution to the TIP's regional emissions and have not changed significantly from those which were described in the TIP, orin a manner which would significantly impact use of the facility; and (2) Ifthe TIP describes a project design concept and scope which includes project-level emissions mitigation orcontrol measures, written commitments toimplement such

measures must be obtained from the project sponsor and/or operator as required by §93.133(a) in order forthe project to be considered from a conforming program. Any change in these mitigation or control measures that would significantly reduce their effectiveness constitutes achange in the design concept and scope ofthe project. 

### §93.116 Criteria and procedures: Localized CO and PMo violations (hot spots).

(a)The FHWA/FTA project must not

cause or contribute to any new localized CO orPMo violations or increase the frequency or severity ofany existing CO

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or PM,,, violations in CO and PMKO nonattainment and maintenance areas. This criterion applies during all periods. This criterion is satisfied ifit is demonstrated that no new local violations will be created and the severity or number ofexisting violations will not be increased as a result ofthe project.

(b) The demonstration must be performed according to the requirements of §§ 93.105(c)(1)(i) and 93.131.

(c) Forprojects which are not ofthe type identified by § 93.131(a) or § 93.131(d), this criterion may be satisfied ifconsideration of local factors clearly demonstrates that no local violations presently exist and no new local violations will be created as a result ofthe project. Otherwise, in CO nonattainment and maintenance areas, a quantitative demonstration must be performed according to the requirements of§93.131(b).
§93.117 Criteria and procedures: Compliance with PMo control measures.

The FHWA/FTA project must comply with PM,, control measures in the applicable implementation plan. This criterion applies during all periods. It is satisfied ifcontrol measures (for the
purpose oflimiting PMo emissions from the construction activities and/or normal use and operation associated with the project) contained in the applicable implementation plan are included in the final plans, specifications, and estimates for the project.

§93.118 Criteria and procedures: Motor vehicleemissions budget (transportation plan).

(a) The transportation plan must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies during the transitional period and the control strategy and maintenance periods, except as provided in § 93.136. This criterion may be satisfied if the requirements in paragraphs (b) and (c) ofthis section are met:

(b)A regional emissions analysis shall be performed as follows:

(1) The regional analysis shall estimate emissions ofany ofthe following pollutants and pollutant
precursors for which the area is in nonattainment or maintenance and for which the applicable implementation plan (or implementation plan submission) establishes an emissions budget:

(i) VOC as an ozone precursor; (ii) NO. as an ozone precursor..unless the Administrator determines that additional reductions ofNOx would not contribute to attainment;

(iii) CO; (iv) PM 0 (and its precursors VOC and/or NO. ifthe applicable implementation plan or implementation plan submission identifies transportation-related precursor emissions within the nonattainment

area as a significant contributor to the PM10 nonattainment problem or establishes a budget for such emissions);

or(v) NO. (in NO2 nonattainment or maintenance areas);

(2) The regional emissions analysis shall estimate 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 ofthe transportation plan:

(3) The emissions analysis methodology shall meet the requirements of§ 93.130;

(4) For areas with a transportation plan that meets the content requirements of § 93.106(a). the emissions analysis shall be performed for each horizon year. Emissions in milestone years which are between the horizon years may be determined by interpolation; and

(5) For areas with a transportation plan that does not meet the content requirements of § 93.106(a), the emissions analysis shall be performed for any years in the time span ofthe transportation plan provided they are not more than ten years apart and provided the analysis is performed for the last year ofthe plan's forecast period. Ifthe attainment year is in the time span ofthe transportation plan, the emissions analysis must also be performed for the attainment year. Emissions in milestone years which are between these analysis years may be determined by interpolation.

(c) The regional emissions analysis shall demonstrate that for each ofthe applicable pollutants or pollutant
precursors in paragraph (b)(1) ofthis section the emissions are less than or equal to the motor vehicle emissions budget as established in the applicable implementation plan or implementation plan submission as follows:

(1) Ifthe applicable implementation plan or implementation plan submission establishes emissions budgets for milestone years, emissions in each milestone year are less than or equal to the motor vehicle emissions budget established for that year: (2) For nonattainment areas, emissions in the attainment year are less than or equal to the motor vehicle emissions budget established in the applicable implementation plan or implementation plan submission for that year; (3) For nonattainment areas, emissions in each analysis or horizon
year after the attainment year are less than orequal to the motor vehicle emissions budget established by the applicable implementation plan or implementation plan submission for the attainment year. Ifemissions budgets

are established for years after the attainment year, emissions in each analysis year orhorizon year must be less than or equal to the motor vehicle emissions budget for that year, ifany, or the motor vehicle emissions budget for the most recent budget year prior to the analysis year or horizon year; and

(4) For maintenance areas, emissions in each analysis or horizon year are less than or equal to the motor vehicle emissions budget established by the maintenance plan for that year, if any,

or the emissions budget for the most
recent budget year prior to the analysis

or horizon year.
§93.119 Criteria and procedures: Motor vehicleemissions budget (TIP).

(a) The TIP must be consistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies during the transitional period and the control strategy and maintenance periods, except as provided in § 93.136. This criterion may be satisfied ifthe requirements in paragraphs (b) and (c) ofthis section are met.

(b)For areas with a conforming transportation plan that fully meets the
content requirements of§ 93.106(a), this criterion may be satisfied without additional regional analysis if:

(1) Each program year ofthe TIP is consistent with the Federal funding which may bereasonably expected for that year, and required State/local matching funds and funds for State/ local funding-only projects are consistent with the revenue sources expected over the same period; and

(2) TheTIP is consistent with the conforming transportation plan such that the regional emissions analysis already performed for the plan applies
to the TIP also. This requires a demonstration that: (i) The TIP contains all projects which
must be started in theTIP's timeframe in order to achieve the highway and transit system envisioned by the 1993 / Rules and Regulations

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### I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62243

transportation plan in each ofits horizon years;

(ii) All TIP projects which are regionally significant are part ofthe specific highway ortransit system envisioned in the transportation plan's horizon years; and

(iii) The design concept and scope of each regionally significant project in the TIP is not significantly different from that described in the transportation plan.

(3) Ifthe requirements in paragraphs .(b)(1) and (b)(2) ofthis section are not met,then:

(i) The TIPmay be modified to meet those requirements; or

(ii)The transportation plan must be revised so that the requirements in paragraphs (b)(1) and (b)(2) ofthis section are met.Once the revised plan has been found to conform, this criterion is met forthe TIP with no additional analysis except a demonstration that the TIPmeets the requirements ofparagraphs (b)(1) and (b)(2) ofthis section.

(c)Forareas with a transportation plan that does not meet the content requirements ofS93.106(a), a regional emissions analysis must meet allofthe following requirements:

(1)Theregional emissions analysis shall estimate emissions from the entire transportation system, including all projects contained in the proposed TIP, the transportation plan, and all other regionally significant highway and transit projects expected in the nonattainment or maintenance area in the timeframe ofthe transportation plan;

(2)The analysis methodology shall
meet the requirements of 

### S93.130(c); and

(3)The regional analysis shall satisfy the requirements of§§ 93.118(b)(1), 93.118(b)(5), and 93.118(c.
§93.120 Criteria and procedures: Motor vehicle emissionsbudget (project not from

aplanandTIP).

(a)The project which is notfrom a conforming transportation plan and a conforming TIP must beconsistent with the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission). This criterion applies during the transitional period and the control strategy and maintenance periods, except as provided in §93.136. Itis satisfied if emissions from the implementation of the project, when considered with the emissions from the projects in the conforming transportation plan and TIP and all otherregionally significant projects expected in the area, do not exceed the motor vehicle emissions budget(s) in the applicable implementation plan (or implementation plan submission).'

(b) For areas with aconforming transportation plan that meets the content requirements of S93.106(a): (1)This criterion may be satisfied without additional regional analysis if the project is included in the conforming transportation plan, even if it is not specifically included in the latest conforming TIP. Thisrequires a demonstration that:

(i)Allocating funds to the project will
not delay the implementation ofprojects in the transportation plan or TIPwhich

are necessary to achieve thehighway and transit system envisioned by the transportation plan in each of its horizon years;

(ii) The project Is not regionally significant or ispart ofthe specific highway or transit system envisioned in the transportation plan's horizon years; and

(iii) The design concept and scope of the project is not significantly different from that described in the transportation plan.

(2) Ifthe requirements in paragraph (b)(1) ofthis section are not met, a regional emissions analysis mustbe performed as follows:

(i)The analysis methodology shall
meetthe requirements of§93.130;

(ii)The analysis shall estimate emissions from the transportation system, including the proposed project and all other regionally significant projects expected in the nonattainment

or maintenance area in the timeframe of the transportation plan. The analysis
must include emissions from all previously approved projects which

were not from a transportation plan and TIP;and

(iii) The emissions analysis shallmeet therequirements of§§ 93.118(b)(1), 93.118(b)(4), and 93.118(c).

(c)For areas with atransportation plan that does not meet the content requirements of §93.106(a), a regional emissions analysis must be performed for the project together with the conforming TIP and all other regionally significant projects expected in the nonattainment or maintenance area. This criterion may be satisfied if:

(1)The analysis methodology meets the requirements of§93.130(c);

(2) The analysis estimates emissions from the transportation system, including the proposed project, and all other regionally significant projects expected in the nonattainment or maintenance area in the timeframe of the transportation plan; and

(3) The regional analysis satisfies the requirements of§§ 93.118(b)(1), 93.118(b)(5), and 93.118(c). §93.121 Criteriaardprocedures: Localized CO violations (hotspots) In the Interim period.

(a) Each FHWA/FTA project must eliminate or reduce the severity and number oflocalized CO violations in the

area substantially affected by the project (in CO nonattainment areas). This criterion applies during the interim and transitional periods only. This criterion is satisfied with respect to existing localized CO violations ifit is demonstrated that existing localized CO violations will be eliminated or reduced in severity and number as a result ofthe project.

(b) The demonstration must be performed according to the requirements of§§ 93.105(c)(1)(i) and 93.131.

(c) For projects which are not ofthe type identified by S93.131(a), this criterion may be satisfied if consideration oflocal factors clearly demonstrates that existing CO violations will be eliminated or reduced in severity and number. Otherwise, a quantitative demonstration must be performed according to the requirements of §93.131(b).

§93.122 Criteria and procedures: Interim period reductions Inozone and CO areas (transportationplan).

(a) A transportation plan must contribute to emissions reductions in

ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in §93.136. It applies to the net effect on emissions of all projects contained in a new or revised transportation plan. This criterion may be satisfied ifa regional emissions analysis is performed as described in paragraphs (b) through (f) ofthis section.

(b) Determine the analysis years for which emissions are to be estimated. Analysis years shall be no more than ten
years apart. The first analysis year shall be no later than the first milestone year (1995 in CO nonattainment areas and 1996 in ozone nonattainment areas). The second analysis year shall be either the attainment year for the area, or if the attainment year is the same as the first analysis year or earlier, the second analysis year shall be at least five years beyond the first analysis year. The last
year ofthe transportation plan's forecast period shall also be an analysis year.

(c) Define the 'Baseline' scenario for each ofthe analysis years to be the future transportation system that would result from current programs, composed ofthe following (except that projects listed in §§ 93.134 and 93.135 need not be explicitly considered):

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(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 ofall regionally significant projects, regardless of funding source, which are currently under construction orare undergoing right-of-way acquisition (exceptfor hardship acquisition and protective buying); come from the first three years ofthe previously conforming transportation plan and/or TIP; or have completed the NEPA process. (Forthe first conformity determination on the transportation plan after November 24, 1993, a project may not be included in the "Baseline" scenario ifone ofthe following major steps has not occurred within the past three years: NEPA
process completion; start offinal design; acquisition ofa significant portion of the right-of-way; or approval ofthe plans, specifications and estimates. Such a project must be included in the "Action" scenario, asdescribed in paragraph (d)ofthis section.)

(d) Define the 'Action' scenario for each ofthe analysis years as the transportation system that will result in that year from the implementation of the proposed transportation plan, TIPs adopted under it, and other expected regionally significant projects inthe nonattainment area. It will include the following (exceptthat projects listed in §§ 93.134 and 93.135 need notbe 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 willbe operational or in effect in the analysis
year, except that regulatory TCMs may notbe 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 andtransportation 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 on the transportationplan;.

{4}pThe 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 orapproval, which

were adopted and/or fundedprior to the date ofthe last conformity determination on the transportation plan, but which have been modified since then to be more stringent or effective;

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

(6) Completion ofall expected regionally significant non-FHWA/FTA highway andtransit projects that have clear funding sources and commitments leading toward their implementation and completion by the analysis year. e} Estimate the emissions predicted
to result in each analysis year from travel on the transportation systems defined by the 'Baseline' and 'Action' scenarios and determine the difference inregional VOC and NO. emissions (unless the Administrator determines that additional reductions in NO. would
not contribute to attainment) between the two scenarios forozone nonattainment areas and the difference in CO emissions between the two scenarios forCO nonattainment areas. The analysis must be performed for each ofthe analysis years according to the requirements of§93.130. Emissions in milestone years which arebetween the analysis years may be determined by interpolation.

(f) This criterion is met ifthe regional VOC and NO. emissions (forozone nonattainment areas) and CO emissions (forCOnonattainment areas)predicted in the 'Action' scenario are lessthan the emissions predicted from the 'Baseline' scenario in each analysis year, and if this can reasonably be expected to be
true inthe periodsbetween the first milestone year and the analysis years. The regional analysis must show that the 'Action' scenario contributes to a reduction inemissions from the 1990 emissions by any nonzero amount.
§93.123 Criteria and procedures: Interim period reductions In ozone and CO areas (TIP).

(a) A TIPmust contribute to emissions reductions in ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in §93.136. It applies to the net effect on emissions of all projects contained in a new or revised TIP. This criterion may be satisfied ifa regional emissions analysis is performed as described in paragraphs (b)through (1) ofthis section. (b) Determine the analysis years for which emissions are to be estimated. The first analysis year shall be no later than the first milestone year (1995 in CO nonattainment areas and 1996 in ozone nonattainment areas). The analysis years shall be nomore than ten years apart. The second analysis year shall be either the attainment yearfor the area, or ifthe attainment year is the same as the first analysis year 6r earlier, the second analysis year shall be at least five years beyond the first analysis year. The last
year ofthe transportation plan's forecast period shall also be an analysis year.

(c)Define the 'Baseline' scenario as the future transportation system that would result from current programs, composed ofthe following (except that projects listed in §§ 93.134 and 93.135 need notbe 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 allregionally significant projects, regardless of funding source, which are currently under construction or are undergoing right-of-way acquisition (exceptfor hardship acquisition andprotective buying); come from the first three years ofthe previously conforming TIP; or have completed the NEPA process. (For the first conformity determination on the TIPafter November 24, 1993, a project maynot be included in the "Baseline" scenario ifone ofthe following major steps has not occurred within the past three years: NEPA
process completion; start offinal design; acquisition ofa significant portion of the right-of-way; orapproval ofthe plans, specifications and estimates. Such a project mustbe included inthe "Action" scenario, as described in paragraph (d) ofthis section.)

(d)Define the 'Action' scenario as the future transportation system thatwill result from the implementation ofthe proposed TIP and otherexpected regionally significant projects in the nonattainment area in the timeframe of the transportation plan.It will include the following (except that projects listed in §§ 93.134 and 93.135 need notbe explicitly considered):

(1)All facilities, services, and activities in the 'Baseline' scenario; (2) Completion of allTCMs and regionally significant projects (including facilities, services, and activities) included in the proposed TIP, except that regulatory TCMs may notbe assumed to begin at afuture time unless the regulation is already adoptedby the enforcing jurisdiction or the TCM is 62244 Federal Register / Vol. 58,

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### Federal Register / Vol. 58, No. 225 

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contained in the applicable implementation plan;

(3) All travel demand management programs and transportation system management activities known to the MPO, but notincluded inthe applicable implementation plan orutilizing any Federal funding or approval, which have been fully adopted and/or funded by the enforcingjurisdiction or sponsoring agency since the last conformity determination on the TIP;

(4) The incremental effects ofany 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 orapproval, which

were adopted and/or funded prior to the date of the last conformity determination on the TIP, but which have been modified since then to be

more stringent or effective;

(5) Completion of all expected regionally significant highway and transitprojects 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 thathave clear funding sources and commitments leading toward their implementation and completion by the analysis year.

(e)Estimate the emissions predicted
toresult in each analysis year from travel onthe transportation systems defined by the 'Baseline' and 'Action' scenarios, and determine the difference inregional VOC and NO. emissions (unless the Administrator determines that additionalreductions ofNO. would not contribute to attainment)between the two scenarios forozone nonattainment areas and the difference inCO emissions between the two scenarios for CO nonattainment areas. The analysis mustbe performed for each ofthe analysis years according to the requirements of§93.130. Emissions in milestone years which are between analysis years may be determined by interpolation.

(f)This criterion is met if the regional VOC and NO. emissions in ozone nonattainment areas and CO emissions in CO-nonattainment areas predicted in the 'Action' scenario are less than the emissions predicted from the 'Baseline' scenario in each analysis year, and if this canreasonably be expected to be
true inthe period between the analysis
years. The regional analysis must show that the 'Action' scenario contributes to

areduction in emissions from the 1990 emissions by any nonzero amount. §93.124 Criteria and procedures: Interim period reductionsforozone and CO areas (project notfrom a plan and TIP).

A transportation project which is not from a conforming transportation plan and TIP must contribute to emissions reductions in ozone and CO nonattainment areas. This criterion applies during the interim and transitional periods only, except as otherwise provided in § 93.136. This criterion is satisfied ifa regional emissions analysis is performed which

meets the requirements of §93.122 and which includes the transportation plan and project in the 'Action' scenario. If the project which is not from a conforming transportation plan and TIP is a modification ofa project currently in the plan or TIP, the 'Baseline' scenario must include the project with its original aesign concept and scope, and the 'Ac-tion' scenario must include the project with its new design concept and scope. §93.125 Criteriaand procedures: Interim period reductionsfor PM oand NO 2areas (transportation plan).

(a) A transportation plan must contribute to emission reductions or must not increase emissions in PM,o and NO 2 nonattainment areas. This criterion applies only during the interim and transitional periods. It applies to the net effect on emissions ofall projects contained in a new orrevised transportation plan. This criterion may be satisfied ifthe requirements ofeither paragraph (b) or (c) ofthis section are met.

(b) Demonstrate that implementation ofthe plan and all other regionally significant projects expected in the nonattainment area will contribute to reductions in emissions ofPM,0 in a PM,0 nonattainment area (and ofeach transportation-related precursor ofPM,o in PMo nonattainment areas ifthe EPA Regional Administrator or the director of the State air agency has made a finding that such precursor emissions from within the nonattainment area are

a significant contributor to the PM,o nonattainment problem and has so notified the MPO and DOT) and ofNO, in an NO2 nonattainment area, by performing a regional emissions analysis as follows:

(1)Determine the analysis years for which emissions are to be estimated. Analysis years shall be no more than ten
years apart. The first analysis year shall be no later than 1996 (forNO 2 areas) or four years and six months following the date of designation (forPM,0 areas). The second analysis year shall be either the attainment year for the area, or if the attainment year is the same as the first analysis year orearlier, the second analysis year shall be at least five years beyond the first analysis year. The last
year ofthe transportation plan's forecast period shall also be an analysis year.

(2) Define for each ofthe analysis
years the "Baseline" scenario, as defined in §J3.122(c), and the "Action" scenario, as defined in §93.122(d).

(3)Estimate the emissions predicted
to result ineach analysis year from travel on the transportation systems defined by the "Baseline" and "Action" scenarios and determine the difference between the two scenarios in regional PM1o emissions in aPM,o nonattainment area (andtransportationrelated precursors ofPM,o in PMo nonattainment areas ifthe EPA Regional Administrator or the director ofthe State air agency has made a findingthat such precursor emissions from within the nonattainment area are a significant contributor to the PMo nonattainment problem and has so notified theMPO and DOT)and inNO,, emissions in an NO 2 nonattainment area. The analysis mustbe performed for each ofthe analysis years according to the requirements of §93.130. The analysis must address the periods between the analysis years and the periods between 1990, the first milestone year (ifany), and the first ofthe analysis years. Emissions inmilestone years which are between the analysisyears may be determined by interpolation.

(4) Demonstrate that the regional PMo emissions and PM,0 precursor emissions, where applicable, (for PM,o nonattainment areas) andNO, emissions (for NO2 nonattainment areas) predicted in the 'Action' scenario are less than the emissions predicted from the 'Baseline' scenario ineach analysis year,and that this can reasonably be expected to be true in the periods between the first milestone year (ifany) and the analysis years.

(c)Demonstrate that when the projects in the transportation plan and, all otherregionally significant projects expected in the nonattainment area are implemented, the transportation system's total highway and transit emissions ofPMo in a PMmo nonattainment area (and transportationrelated precursors ofPM,0 in PM,0 nonattainment areas ifthe EPARegional Administrator or the director ofthe State air agency has made a finding that such precursor emissions from within the nonattainment area are a significant contributor to the PMio nonattainment problem and has so notified the MPO and DOT) and ofNO,, in an NO2 nonattainment area will not be greater than baseline levels, by performing a regional emissions analysis as follows: 1993 / Rules and Regulations 62245

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(1)Determine the baseline regional emissions ofPM10 and PMo precursors, where applicable (for PM,0 nonattainment areas) and NO. (for NO2 nonattainment areas) from highway and transit sources. Baseline emissions are those estimated to have occurred during calendar year 1990, unless the implementation plan revision required by §51.396 ofthis chapter defines the baseline emissions for a PMio area to be those occurring in a different calendar
year for which abaseline emissions inventory was developed for the
purpose ofdeveloping a control strategy implementation plan.

(2) Estimate theemissions ofthe applicable pollutant(s) from the entire transportation system, including projects in the transportation plan and TIP and all other regionally significant projects in the nonattainment area. according to the requirements of §93.130. Emissions shall beestimated for analysis years which are no more than ten years apart. The first analysis
year shall be no later than 1996 (for NO 2 areas) or four years and six months following the date ofdesignation (for PM,oareas). The second analysis year shallbe either the attainment year for the area, or ifthe attainment year is the

same asthe first analysis year or earlier, the second analysis year shall be at least five years beyond the first analysis year. The last year ofthe transportation plan's forecast period shall also be an analysis
year.

(3)Demonstrate that for each analysis
year the emissions estimated in paragraph (c)(2) ofthis section are no greaterthan baseline emissions ofPM,o and PMo precursors, where applicable (for PM, 0nonattainment areas) or NO, (for NO2 nonattainment areas) from highway and transit sources. §93.126 Criteria and procedures: Interim period reductionsfor PMo and NO 2areas (TIP).

(a)A TIP must contribute to emission reductions or must not increase
emissions in PMo and NO2 nonattainment areas. This criterion applies only during the interim and transitional periods. It applies tothe net effect on emissions of all projects contained in anew orrevised TIP. This criterion may be satisfied if the requirements ofeither paragraph (b)or paragraph (c)ofthis section are met.

(b) Demonstrate that implementation ofthe plan and TIP and all other regionally significant projects expected in the nonattainment area will contribute to reductions in emissions of PM,0in aPM1o nonattainment area (and transportation-related precursors of PM1oin PM1o nonattainment areas if the EPA Regional Administrator orthe director of the State air agency has made

a finding that such precursor emissions from within the nonattainment area are

a significant contributor to the PM,o nonattainment problem and has so notified the MPO and DOT) and of NO, in an NO 2 nonattainment area, by performing a regional emissions analysis as follows:

(1) Determine the analysis years for which emissions are to be estimated, according to the requirements of §93.125(b)(1).

(2) Define for each ofthe analysis
years the "Baseline" scenario, as defined in § 93.123(c), and the "Action" scenario, as defined in § 93.123(d).

(3) Estimate the emissions predicted

to result in each analysis year from travel on the transportation systems defined by the "Baseline" and "Action" scenarios as required by § 93.125(b)(3), and make the demonstration required by §93.125(b)(4).

(c) Demonstrate that when the projects in the transportation plan and TIP and all other regionally significant projects expected in the area are implemented, the transportation system's total highway and transit emissions ofPMo in aPMo nonattainment area (and transportationrelated precursors ofPMo in PMo nonattainment areas ifthe EPA Regional Administrator or the director ofthe State air agency has made a finding that such precursor emissions from within the nonattainment area are a significant contributor to the PM,o nonattainment problem and has so notified the MPO and DOT) and ofNO, in an NO 2 nonattainment area will not be greater than baseline levels, by performing a regional emissions analysis as required by § 93.125(c) (1) through (3).
§93.127 Criteria and procedures: Interim period reductionsfor PM,oand NO 2 areas (projectnot from a plan and TIP).

A transportation project which is not from a conforming transportation plan and TIP must contribute to emission reductions or must not increase emissions in PMo and NO 2 nonattainment areas. This criterion applies during the interim and transitional periods only. This criterion is met ifa regional emissions analysis is performed which meets the requirements of§93.125 and which includes the transportation plan and project in the 'Action' scenario. Ifthe project which is not from a conforming transportation plan and TIP is a modification ofa project currently in the transportation plan orTIP, and §93.125(b) is used to demonstrate satisfaction ofthis criterion, 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. §93.128 Transitionfrom the Interim period tothe controlstrategy period.

(a) Areas which submit a control strategy implementation plan revision after November 24, 1993. (1)The transportation plan and TIP must be demonstrated to conform according to transitional period criteria and procedures by one yearfrom the date the Clean AirAct requires submission of such control strategy implementation plan revision. Otherwise, the conformity
status ofthe transportation plan and TIP will lapse, and no new project-level conformity determinations may be made.

(i)The conformity of new transportation plans and TIPs may be demonstrated according to Phase II interim period criteria and procedures for 90 days following submission ofthe control strategy implementation plan revision, provided the conformity of such transportation plans and TIPs is redetermined according to transitional period criteria and procedures as required in paragraph (a)(1) ofthis section.

(ii) Beginning 90 days after submission ofthe control strategy implementation plan revision, new transportation plans and TIPs shall demonstrate conformity according to transitional period criteria and procedures.

(2) IfEPA disapproves the submitted control strategy implementation plan revision and so notifies the State, MPO, and DOT, which initiates the sanction
process under Clean Air Act sections 179 or 110(m), the conformity status of the transportation plan and TIP shall lapse 120 days after EPA's disapproval. and no new project-level conformity determinations may be made. No new transportation plan,TIP, or project may be found to conform until another control strategy implementation plan revision is submitted and conformity is demonstrated according to transitional period criteria and procedures.

(3)Notwithstanding paragraph (a)(2) ofthis section. ifEPA disapproves the submitted control strategy implementation plan revision but' determines that the control strategy contained in the revision would have been considered approvable with respect to requirements for emission reductions ifall committed measures hadbeen submitted in enforceable form

as required by Clean AirAct section 110(a)(2)(A), the provisions ofparagraph

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(a)(1) ofthis section shall apply for 12 months following the date of disapproval. The conformity status of the transportation plan and TIP shall lapse 12months following the date of disapproval unless another control strategy implementation plan revision is submitted to EPA and found to be complete.

(b)Areaswhichhave not submitted a controlstrategyimplementation plan revision.(1)For areas whose Clean Air Act deadline for submission ofthe control strategy implementation plan revision is after November 24, 1993 and EPA has notified the State, MPO, and DOTofthe State's failure to submit a control strategy implementation plan revision, which initiates the sanction process under Clean Air Act sections 179 or 110(m):

(i)No new transportation plans or TIPs may be found to conform beginning 120 days after the Clean Air Act deadline; and

(ii) The conformity status of the transportation plan and TIP shall lapse

one year after the Clean Air Act deadline, and no new project-level conformity determinations may be made.

(2) For areas whose Clean Air Act deadline for submission ofthe control strategy implementation plan wasbefore November 24, 1993 and EPA has made

a finding offailure to submit a control strategy implementation plan revision, which initiates the sanction process under Clean AirAct sections 179 or 110(m), the following apply unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator: (i)No new transportation plans or TIPsmay be found to conform beginning March 24, 1994; and

(ii) The conformity status ofthe transportation plan and TIP shall lapse November 25, 1994, and nonew projectlevel conformity determinations may be made.

(c)Areas whichhave notsubmitteda complete controlstrategy implementationplanrevision.(1)For

areas where EPA notifies the State, MPO, and DOT after November 24, 1993 that the control strategy implementation plan revision submitted by the State is incomplete, which initiates the sanction process under Clean Air Act sections 179 or 110(m), the following apply unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator:

(i) No new transportation plans or TIPsmay be found to conform beginning 120 days after EPA's incompleteness finding; and (ii) The conformity status ofthe transportation plan and TIP shall lapse one year after the Clean AirAct deadline, and no new project-level conformity determinations may be made.

(iii) Notwithstanding paragraphs (c)(1) (i)and (ii) ofthis section, ifEPA notes in its incompleteness finding that the submittal would have been considered complete with respect to requirements for emission reductions if all committed

measures had been submitted in enforceable form as required by Clean Air Act section 110(a)(2)(A), the provisions ofparagraph (a)(1) of this section shall apply for a period of 12 months following the date ofthe incompleteness determination. The conformity status ofthe transportation plan and TIP shall lapse 12 months followingthe date ofthe incompleteness determination unless another control strategy implementation plan revision is submitted to EPA and found to be complete.

(2)Forareas where EPA has determined before November 24, 1993 that the control strategy implementation plan revision is incomplete, which initiates the sanction process under Clean AirAct sections 179 or 110(m), the following apply unless the failure has been remedied and acknowledged by a letter from the EPA Regional Administrator:

(i)No new transportation plans or TIPs may be found to conform beginning March 24, 1994; and (ii) The conformity status ofthe transportation plan and TIP shall lapse November 25, 1994, and no new projectlevel conformity determinations may be made.

(iii)Notwithstanding paragraphs (c)(2) (i)and (ii) ofthis section, ifEPA notes in its incompleteness finding that the submittal would have been considered complete with respect to requirements for emission reductions ifall committed

measures hadbeen submitted in enforceable form as required by Clean AirAct section 110(a)(2)(A), the provisions ofparagraph (d)(1) ofthis section shall apply for a period of 12 months following the date ofthe incompleteness determination. The conformity status ofthe transportation plan and TIP shall lapse 12 months following the date ofthe incompleteness determination unless another control strategy implementation plan revision is submitted to EPA and foundto be complete.

(d)Areas whichsubmittedacontrol strategyimplementationplanbefore November24, 1993. (1) The transportation plan and TIP must be demonstrated to conform according to transitional period criteria and procedures by November 25, 1994. Otherwise, their conformity status will lapse, and no new project-level conformity determinations may be made.

(i) The conformity ofnew transportation plans and TIPs may be demonstrated according to Phase II interim period criteria and procedures until February 22,1994, provided the conformity ofsuch transportation plans and TIPs is redetermined according to transitional period criteria and procedures as required in paragraph (d)(1) ofthis section.

(ii) Beginning February 22, 1994, new transportation plans and TIPs shall demonstrate conformity according to transitional period criteria and procedures.

(2) If EPA has disapproved the most recent control strategy implementation plan submission, the conformity status ofthe transportation plan and TIP shall lapse March 24, 1994, and no new project-level conformity determinations may be made. No new transportation plans, TIPs, or projects may be found to conform until another control strategy implementation plan revision is submitted and conformity is demonstrated according to transitional period criteria and procedures.

(3)Notwithstanding paragraph (d)(2) ofthis section, ifEPA has disapproved the submitted control strategy implementation plan revision but determines that the control strategy contained in the revision would have been considered approvable with respect to requirements foremission reductions ifall committed measures had been submitted in enforceable form

asrequired by Clean Air Act § 110(a)(2)(A), the provisions of paragraph (d)(1) ofthis section shall apply for 12 months following November 24, 1993. The conformity status ofthe transportation plan and TIP shall lapse 12 months following November 24, 1993 unless another control strategy implementation plan revision is submitted to EPA and found
to be complete.

(e)Projects.Ifthe currently conforming transportation plan and TIP have not been demonstrated to conform according to transitional period criteria and procedures, the requirements of paragraphs (e) (1)and (2) ofthis section
mustbe met.

(1)Before aFHWA/FTA project which is regionally significant and increases single-occupant vehicle capacity (anew general purpose highway on a new location or adding general purpose lanes) may be found to conform, the State air agency mustbe

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consulted on how the emissions which the existing transportation plan and TIP's conformity determination estimates for the "Action" scenario (as required by §§93.122 through 93.127)
compare to the motor vehicle emissions budget in the implementation plan submission orthe projected motor vehicle emissions budget inthe implementation plan under development.

(2) Inthe event ofunresolved disputes

on such project-level conformity determinations, the State air agency may escalate the issueto theGovernor consistent with the procedure in § 93.105(d), which applies for any State air agency comments on a conformity determination.

(f)Redeterminationofconformityof the existingtransportation planand TIP accordingto the transitional period criteriaand procedures.(1)The redetermination ofthe conformity ofthe existing transportation plan and TIP according to transitional period criteria and procedures (asrequired by paragraphs (a)(1) and (d)(1) of this section) does not require new emissions analysis and does not have to satisfy the requirements of§§ 93.110 and 93.111 if:

(i) The control strategy implementation plan revision submitted
to EPA uses the 

### MPO's modeling ofthe existing transportation plan and TIP for its projections ofmotorvehicle emissions; and

(ii) The control strategy implementation plan does not include
any transportation projects which are not included inthe transportation plan and TIP.

(2) A redetermination ofconformity as described in paragraph (f)(1) ofthis section is not considered a conformity determination for the purposes of §93.104(b)(4) or §93.104(c)(4) regarding the maximum intervals between conformity determinations. Conformity
mustbe determined according to all the applicable criteria and procedures of §93.109 within three years ofthe last determination which did not rely on paragraph (f(1) ofthis section.

(g) Ozonenonattainmentareas.(1) The requirements ofparagraph (b)(1) of this section apply ifa serious or above

ozone nonattainment area has not submitted the implementation plan revisions which Clean AirAct sections 182(c)(2)(A) and 182(c)(2)(B) require to be submitted to EPA November 15, 1994, even ifthe area has submitted the implementation plan revision which Clean AirAct section 182(b)(1) requires to be submitted to EPA November 15, 1993.

(2)The requirements ofparagraph (b)(1) ofthis section apply ifa moderate ozone nonattainment area which is using photochemical dispersion modeling to demonstrate the "specific annual reductions asnecessary to attain" required by Clean Air Act section 182(b)(1), and which has permission from EPA to delay submission of such demonstration until November 15, 1994, does not submit such demonstration by that date.The requirements ofparagraph (b)(1) ofthis section apply in this case even ifthe

area has submitted the 15% emission reduction demonstration required by Clean AirAct section 182(b)(1).

(3) The requirements ofparagraph (a) ofthis section apply when the implementation plan revisions required by Clean Air Act sections 182(c)(2)(A) and 182(c)(2)(B) are submitted.

(b) Nonattainment areaswhichare notrequiredtodemonstrate reasonable further progressandattainment. Ifan

area listed in §93.136 submits a control strategy implementation plan revision, the requirements ofparagraphs (a) and (e)ofthis section apply. Because the

areas listed in §93.136 are notrequired
to demonstrate reasonable further progress and attainment and therefore have no Clean Air Act deadline, the provisions of paragraph (b)ofthis section do not apply to these areas at any time.

(i)Maintenance plans.Ifa control strategy implementation plan revision is
not submitted to EPA buta maintenance plan required by Clean AirAct section 175A is submitted to EPA, the requirements ofparagraph (a) or (d) of this section apply, withthe maintenance plan submission treated as

a "control strategy implementation plan revision" for the purposes ofthose requirements. 

### §93.129 Requirements foradoption or approval ofprojects by other recipients of fundsdesignated under title23 U.S.C. or the Federal TransitAct

No recipient offederal funds designated under title 23 U.S.C. orthe Federal Transit Act shall adopt or approve a regionally significant highway or transit project, regardless of funding source, unless there is a currently conforming transportation plan and TIP consistent with the requirements of §93.114 and the requirements of one ofthe following paragraphs (a) through (e) ofthis section
are met:

(a)The project comes from a conforming plan and program consistent with the requirements of§ 93.115;

(b)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 ofMPO project selection or endorsement, and the project's design concept and scope have

not changed significantly from those which were included in the regional emissions analysis, or in a manner which would significantly impact use of the facility;

(c) During the control strategy or maintenance period, the project is consistent with the motor vehicle emissions budget(s) in the applicable implementation plan consistent with the requirements of § 93.120;

(d) During Phase II ofthe interim period, the,project contributes to emissions reductions or does not increase emissions consistent withthe requirements of§ 93.124 (in ozone and CO nonattainment areas) or §93.127 (in PMo and NO2 nonattainment areas); or

(e) During the transitional period, the project satisfies the requirements ofboth paragraphs (c)and (d)ofthis section.

§93.130 Procedures fordetermining regional transportation-related emissions.

(a) Generalrequirements. (1)The regional emissions analysis 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 theMPO as required by § 93.105. Projects which are not regionally significant are not required to be explicitly modeled, but VMT from such projects must be estimated in accordance with reasonable professional practice. Theeffects of TCMs and similar projects that are not regionally significant may also be estimated in accordance with reasonable professional practice.

(2) The emissions analysis may not include for emissions reduction credit

any TCMs which have been delayed beyond the scheduled date(s) until such time as implementation has been assured. Ifthe TCM has been partially implemented and it can be demonstrated that it is providing quantifiable emission reduction benefits, the emissions analysis may include that emissions reduction credit.

(3) Emissions reduction credit from projects, programs,or activities which require aregulation in order to be implemented may not be included in the emissions analysis unless the regulation is already adopted by the enforcing jurisdiction. Adopted regulations are required for demand management strategies for reducing

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emissions which are not specifically identified in theapplicable implementation plan,and for control
programs which are external tothe transportation system itself,such as tailpipe orevaporative emission standards, limits on gasoline volatility, inspection and maintenance programs, and oxygenated or reformulated gasoline or diesel fuel. A regulatory
program may also be considered to be adopted ifan opt-in to a Federally enforced program has been approved by EPA, ifEPA has promulgated the
program (ifthe control program is a Federal responsibility, such as tailpipe standards), orifthe Clean Air Act requires the program without need for individual State action and without any discretionary authority forEPA to set its stringency, delay its effective date, or not implement the program.

(4) Notwithstanding paragraph (a)(3) ofthis section, during the transitional period, control measures or programs which are committed to in an implementation plan submission as described in §§ 93.118 through 93.120, but which has notreceived finalEPA action inthe form ofa finding of incompleteness, approval, or disapproval may be assumed for emission reduction credit forthe purpose ofdemonstrating that the requirements of §§ 93.118 through 93.120 are satisfied.

(5) A regional emissions analysis for the purpose ofsatisfying the requirements of §§ 93.122 through 93.124 may account forthe programs in paragraph (a)(4) ofthis section,but the

same assumptions about theseprograms shall beused forboth the "Baseline" and "Action" scenarios.

(b) Serious,severe,andextreme ozone nonattainmentareasandseriouscarbon monoxide areasafter January1, 1995. Estimates ofregional transportationrelated emissions used to support conformity determinations mustbe made according to procedures which
meet therequirements in paragraphs (b) (1)through (5)ofthis section.

(1)A network-based transportation demand model ormodels relating travel demanD andtransportation system performance to land-use patterns, population demographics, employment, transportation infrastructure, and transportation policies must be used to estimate travel within the metropolitan planning area ofthe nonattainment area. Such a model shall possess the following attributes:

(i) The modeling methods and the functional relationships usedin the model(s) shall in allrespects be in. accordance with acceptable professional practice, andreasonable for purposes of emission estimation;

(ii) The network-based model(s) must bevalidated against ground counts for a base yearthat is not more than 10 years priortothe date ofthe conformity determination. Landuse, population, and other inputs must be based on the best available information and appropriate to the validation base year;

(iii)Forpeak-hour or peak-period traffic assignments, a capacity sensitive assignment methodology must be used;

(iv) Zone-to-zone travel timesused to distribute tripsbetween origin and destination pairs must be in reasonable agreement with the travel times which result from the process ofassignment of trips to network links. Where use of transit currently is anticipated to be a significant factor in satisfying transportation demand, these times should also beused for modeling mode splits;

(v)Free-flow speeds on network links shall be based on empirical observations;

(vi) Peak and off-peak travel demand and travel times must be provided;

(vii) Trip distribution and mode choice must be sensitive topricing, where pricing is a significant factor, if the network model is capable of such determinations and the necessary information is available;

(viii)The model(s) must utilize and document a logical correspondence between the assumed scenario ofland development and use and the future transportation system forwhich emissions are being estimated. Reliance

on a formal land-use model is not specifically required but is encouraged;

(ix) A dependence oftrip generation

on the accessibility ofdestinations via the transportation system (including pricing) is strongly encouraged but not specifically required, unless the network model is capable ofsuch determinations and the necessary information is available;

(x)A dependence ofregional economic and population growth on the accessibility ofdestinations via the transportation system is strongly encouraged but not specifically required, unless the networkmodel is capable ofsuch determinations andthe necessary information is available; and

(xi) Consideration ofemissions increases from construction-related congestion is not specifically required.



### (2) Highway Performance Monitoring System (HPMS) estimates ofvehicle miles traveled shall beconsidered the primary measure ofvehicle miles traveled within the portion ofthe nonattainment ormaintenance area and for the functional classes ofroadways included in HPMS, for urban areas which are sampled on a separate urban

areabasis. A factor (orfactors) shall be developed to reconcile and calibrate the network-based model estimates of vehicle miles traveled in the base year ofits validation to the HPMS estimates forthe same period, and these factors shallbe applied to model estimates of future vehicle miles traveled. In this factoring process, consideration will be given to differences in the facility coverage ofthe HPMS and the modeled network description. Departure from these procedures is permitted with the 'concurrence ofDOT and EPA. (3) Reasonable methods shall be used toestimate nonattainment area vehicle travel on off-network roadways within the urban transportation planning area, and on roadways outside the urban transportation planning area.

(4) 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 oftravel on each roadway segment represented in the network model.

(5) Ambient temperatures shall be consistent with those used to establish the emissions budget in the applicable implementation plan. Factors other than temperatures, for example the fraction oftravel in a hot stabilized engine mode, maybe modified after interagency consultation according to 993.105 ifthe newer estimates 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.

(c)Areaswhich arenotserious,

severe,orextremeozone nonattainment

areasorseriouscarbonmonoxideareas,

orbeforeJanuary 1, 1995. (1)Procedures which satisfy some or all ofthe requirements ofparagraph (a)ofthis section shall beused in allareas not subject to paragraph (a)of this section inwhich those procedures have been the previous practice ofthe MPO. (2) Regional emissions maybe estimated by methods which donot explicitly orcomprbhensively account forthe influence ofland use and transportation infrastructure on vehicle miles traveled and traffic speeds and congestion. Such methods must account forVMT growth by extrapolating historical VMT or projecting future VMTby considering growth in population andhistorical growth trends forvehicle miles travelled per person. These methods must alsoconsider future economic activity, transit

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alternatives, and transportation system policies.

(d) Projects notfrom a conforming plan and TIP in isolated rural nonattainment and maintenance areas. This paragraph applies to any nonattainment ormaintenance area or any portion thereofwhich does not have

a metropolitan transportation plan or TIP and whose projects are not part of the emissions analysis ofany MPO's metropolitan transportation plan orTIP (because the nonattainment or maintenance area or portion thereof does not contain a metropolitan planning area or portion ofa metropolitan planning area and is not part ofa Metropolitan Statistical Area or Consolidated Metropolitan Statistical Area which is or contains a nonattainment or maintenance area).

(1) Conformity demonstrations for projects in these areas may satisfy the requirements of§§ 93.120, 93.124, and 93.127 with one regional emissions analysis which includes all the regionally significant projects in the nonattainment or maintenance area (or portion thereofn.

(2) The requirements of § 93.120 shall be satisfied according to the procedures in § 93.120(c), with references to the "transportation plan" taken to mean the statewide transportation plan.

(3) The requirements of §§ 93.124 and 93.127 which reference "transportation plan" or "TIP" shall be taken to mean those projects in the statewide transportation plan or statewide TIP which are in the nonattainment or maintenance area (orportion thereofn.

(4) The requirement of§ 93.129(b) shall be satisfied if:

(i) The project is included in the regional emissions analysis which includes all regionally significant highway and transportation projects in the nonattainment ormaintenance area (orportion thereofn and supports the

most recent conformity determination made according to the requirements of §§ 93.120, 93.124, or93.127 (as modified by paragraphs (d)(2) and (d)(3) of this section), as appropriate for the time period and pollutant; and

(ii) The project's design concept and

scope have not changed significantly from those which were included in the regional emissions analysis, or in a

manner which would significantly impact use of the facility. *(e) PMofrom construction-related fugitive dust. (1) For areas in which the implementation plan does not identify construction-related fugitive PMo as a contributor to the nonattainment problem, the fugitive PMo emissions associated with highway and transit project construction are not required to be considered in the regional emissions analysis.

(2)In PMO nonattainment and maintenance areas with implementation plans which identify constructionrelated fugitive PM 2oas a contributor to the nonattainment problem, the regional PM 20 emissions analysis shall consider construction-related fugitive PMo and shall'account for the level of construction activity, the fugitive PM,O control measures in the applicable implementation plan, and the dustproducing capacity of the proposed activities.

§93.131 Procedures fordetermining localized COand PMioconcentrations (hotspotanalysis).

(a) In the following cases, CO hot-spot analyses must be based on the applicable air quality models, data bases, and other requirements specified in 40 CFR part 51, Appendix W ("Guideline on Air Quality Models (Revised)" (1988), supplement A (1987) and supplement B (1993), EPA publication no. 450/2-78-027R). unless, after the interagency consultation
process described in § 93.105 and with the approval ofthe EPA Regional Administrator, these models, data bases, and other requirements are determined

to be inappropriate:

(1) For projects in or affecting locations, areas, orcategories of sites which are identified in the applicable implementation plan as sites ofcurrent violation or possible current violation;

(2) For those intersections at Level-ofService D, E, orF, or those that will change to Level-of-Service D, E, or F because ofincreased traffic volumes related to a new project in the vicinity;

(3) For any project involving or affecting any ofthe intersections which the applicable implementation plan identifies as the top three intersections in the nonattainment or maintenance

area based on the highest traffic volumes;

(4) For any project involving or affecting any ofthe intersections which the applicable implementation plan identifies as the top three intersections in the nonattainment or maintenance

area based on the worst Level-ofService; and

(5) Where use ofthe "Guideline" models is practicable and reasonable given the potential for violations.

(b) In cases other than those described in paragraph (a) ofthis section, other' quantitative methods may be used if they represent reasonable and common professional practice.

(c) CO hot-spot analyses must include the entire project, and may be performed only after the major design features which will significantly impact CO concentrations have been identified. The background concentration can be estimated using the ratio offuture to current traffic multiplied by the ratio of future to current emission factors.

(d)PM,0 hot-spot analysis must be performed for projects which are located
at sites at which violations have been verified by monitoring, and at sites which have essentially identical vehicle and roadway emission and dispersion characteristics (including sites near one at which a violation has been monitored). The projects which require PM-10 hot-spot analysis shall be determined through the interagency consultation process required in §93.105. In PM-10 nonattainment and maintenance areas, new or expanded bus and rail terminals and transfer points which increase the number of diesel vehicles congregating at a single location require hot-spot analysis. DOT may choose to make a categorical conformity determination on bus and railterminals or transfer points based on appropriate modeling ofvarious terminal sizes, configurations, and activity levels.The requirements ofthis paragraph forquantitative hot-spot 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.

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

(0 PMO or CO mitigation or control

measures shall be assumed in the hotspot analysis only where there are written commitments from the project
sponsor and/or operatorto the implementation ofsuch measures, as required by §93.133(a).

(g)CO and PM,0 hot-spot analyses are not required to considerconstructionrelated 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 thp construction phase and last five years or less at any individual site.

§93.132 Usingthe motor vehicle emissions budget Inthe applicable Implementation plan (orImplementation plan submission).

(a) In interpreting an applicable implementation plan (or implementation plan submission) with respect to its motor vehicle emissions budget(s), the MPO and DOTmay not

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infer additions to the budget(s) that are not explicitly intended by the implementation plan (orsubmission). Unless the implementation plan explicitly quantifies the amount by which motor vehicle emissions could be higher while still allowing a demonstration ofcompliance with the milestone, attainment, or maintenance requirement and explicitly states an intent that some or all ofthis additional
amount should be available to the MPO and DOT inthe emission budget for conformity purposes, the MPOmay not interpret the budget to be higher than the implementation plan's estimate of future emissions. This applies in particular to applicable implementation plans (orsubmissions) which demonstrate that after implementation ofcontrol measures in the implementation plan:

(1)Emissions 

### from all sources willbe less than the total emissions that would be consistent with a required demonstration ofan emissions reduction milestone;

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

(3) Emissions willbe lower than needed toprovide for continued maintenance.

(b) Ifan applicable implementation plan submitted before November 24, 1993 demonstrates that emissions from all sources will be less than the total emissions that would be consistent with attainment and quantifies that "safety margin," the State may submit a SIP revision which assigns some or all of this safety margin to highway and transit mobile sources for the purposes of conformity. Such a SIP revision, once itis endorsed by the Governor and has been subject to a public hearing, may be used forthe purposes of transportation conformity before it is approved by EPA.

(c)A conformity demonstration shall
nottrade emissions among budgets which the applicable implementation plan (orimplementation plan submission) allocates for different gollutants or precursors, or among

udgets allocated to motor vehicles and other sources, without a SIP revision or

a SIP which establishes mechanisms for such trades.

(d) Ifthe applicable implementation plan (orimplementation plan submission) estimates future emissions by geographic subarea ofthe nonattainment area, the MPO and DOT

are not required to consider this to establish subarea budgets, unless the applicable implementation plan (or implementation plan submission) explicitly indicates an intent to create such subarea budgets forthe purposes of conformity.

(e) Ifa nonattainment area includes,

more than one MPO, the SIPmay establish motorvehicle emissions budgets for each MPO, or else the MPOs
must collectively make a conformity determination for the entire nonattainment area. 

### §93.133 Enforceability ofdesign concept and scope and project-level mitigation and control measures.

(a) Prior to determining that a transportation project is inconformity, the MPO. otherrecipient offunds designated under title 23 U.S.C. or the Federal Transit Act, FHWA, or FTA
must obtain from the project sponsor and/or operator written commitments to implement in the construction ofthe project and operation ofthe'resulting facility or service any project-level mitigation orcontrol measures which

are identified as conditions for NEPA
process completion with respect to local PM1oor CO impacts. Before making conformity determinations written commitments must also be obtained for project-level mitigation or control

measures which are conditions for making conformity determinations for a transportation plan orTIP and included inthe project design concept and scope which is used in the regional emissions analysis required by §§ 93.118 through 93.120 and §§93.122-93.124 or used in the project-level hot-spot analysis required by §§93.116 and 93.121. )Project sponsors voluntarily committing to mitigation measures to

TABLE 2.-EXEMPT PROJECTS facilitate positive conformity determinations must comply with the obligations of such commitments.

(c)The implementation plan revision required in § 51.396 ofthis chapter shall provide that written commitments to mitigation measures must beobtained prior to a positive conformity determination, and that project sponsors must comply with such commitments.

(d) Duringthe control strategy and maintenance periods, if the MPO or project sponsor believes the mitigation

or control measure is no longer
necessary forconformity, the project
sponsoror operator may be relieved of its obligation to implement the mitigation or control measure ifit can demonstrate that the requirements of §§93.116, 93.118, and 93.119 are satisfied without the mitigation or control measure, and so notifies the agencies involved in the interagency consultation process required under §93.105. The MPQ and DOTmust confirm that the transportation plan and TIP still satisfy the requirements of §§ 93.118 and 93.119 and that the project still satisfies the requirements of §93.116, and therefore that the conformity determinations forthe transportation plan, TIP, and project are still valid. §93.134 Exempt projects.

Notwithstanding the other requirements ofthis subpart, highway and transit projects ofthe types listedin Table 2 areexempt from the requirement that a conformity determination be made. Suchprojects
may proceed toward implementation

even in the absence ofa conforming transportation plan and TIP. A particular action ofthe type listed in Table 2 is not exempt if the MPO in consultation with other agencies (see §93.105(c)(1)(iii)), the EPA, and the FHWA (in the case ofahighway project)

or the FTA (inthe case ofatransit project) concur that it haspotentially adverse emissions impacts forany reason. States and MPOsmust ensure that exempt projects do notinterfere with TCMimplementation.

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 signalizationprojects. Railroadlhighway crossing warning devices. Guardrails, median barriers, crash cushions.

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### I Rules and Regulations

TABLE 2.-EXEMPT PROJECTS--Continued

Pavement resurfacing and/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 urbanizedarea. Lighting Improvements. Widening narrow pavements or reconstructing bridges (noadditional travel lanes). Emergency truck pullovers.
Mass Transit Operating assistance totransit agencies. Purchase of support vehicles. Rehabilitation of transit vehicles 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 Idosks. Reconstruction or renovation oftransit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals,

and ancillary structures). Rehabilitation or reconstruction oftrack structures, track, andtrackbed inexisting rights-of-way. Purchase of new buses and rail cars to replace existing vehicles orfor minor expansions ofthe fleet'. Construction of new bus or rail storage/maintenance facilities categorically excludedin23 CFR part 771.
Air Quality Continuation of ride-sharing and van-pooling promotion activities at current levels. Bicycle and pedestrian facilities. Other Specific activitieswhich do not involve or lead directlyto construction, suchas: Planning and technical studies. Grants for training and research programs. Planning activities conducted pursuant totitles 23 and 49 U.S.C. Federal-aid systems revisions. Engineering to assess social, economic, and environmental effects of the proposed action or altematives to that action. Noise attenuation. Advance land acquisitions (23CFR part 712 or 23 CFR part 771). 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, orterrorist acts, except projects Involving substantial functional, locational or capac-

ity changes.
' InPM 10nonattainment or maintenance areas, such projects are exempt only If they are Incompliance with control measures Inthe applicable Implementation plan.

§93.135 Projectsexempt from regional emissionssnalyses.

Notwithstanding the other requirements ofthis subpart, highway and transit projects ofthe types listed in Table 3are exempt from regional emissions analysis requirements. The local effects of these projects with respect to CO orPM1o concentrations
must be considered to determine ifa hot-spot analysis isrequired priorto making a project-level conformity determination. These projects may then proceed to the project development process even in the absence ofa conforming transportation plan and TIP. A particular action ofthe type listed in Table 3 is not exempt from regional emissions analysis ifthe MPO in consultation with other agencies (see § 93.105(c)(1)(iii)), the EPA, and the FHWA (inthe case ofa highway project) orthe FTA (inthe case of atransit project) concur that ithas potential regional impacts for any reason.

TABLE 3.-PROJECTS EXEMPT FROM

REGIONAL EMISSIONS ANALYSES

D

Intersection channelization projects. Intersection signalization projects at Individual

intersections. Interchange reconfiguration projects. Changes invertical and horizontal alignment. Truck size and weight Inspection stations. Bus terminals and transfer points.

S93.136 Special provisionsfor nonattainment areas which are not required to demonstrate reasonable furtherprogress and attainment. (a)Application.This section applies in the following areas: (1)Rural transport ozone nonattainment areas;

(2) Marginal ozone areas; (3)Submarginal ozone areas; .(4) Transitional ozone areas; (5)Incomplete data ozone areas; (6) Moderate CO areaswith a design value of 12.7 ppm or less; and

(7)Not classified CO areas. (b)Defaultconformityprocedures. The criteria and procedures in §§ 93.122 through 93.124 will remain in effect throughout the control strategy period for transportation plans, TIPs, and projects (notfrom aconforming plan andTIP) in lieu ofthe procedures in §§ 93.118 through 93.120, except as otherwise provided inparagraph (c)of this section.

(c) Optionalconformity procedures. The State orMPO may voluntarily develop an attainment demonstration

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and corresponding motor vehicle emissions budget like those required in

areas with higher nonattainment classifications. In thiscase, the State
must submit an implementation plan revision which contains that budget and through 93.120 apply in lieu ofthe attainment dimonstration. Once EPA procedures in §§93.122 through 93.124. has approved thisimplementation plan [FR Doc. 93-28616 Filed 11-23-93; 8:45 am) revision, the procedures in §§ 93.118 *wLUNG CODE 65604"

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