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 or Approved Under

Title 23 U.S.C. or the 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 is required under

section 176(c)(4) of the 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 of eliminating or reducing the

severity and number of violations of the

national ambient air quality standards

and achieving expeditious attainment of

such standards. In addition, Federal

activities may not cause or contribute 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 of highway 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 in room

M-1500 Waterside Mall (ground floor)

at the 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 1:30 p.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, Ann Arbor, MI 48105.

(313) 741-7884.

SUPPLEMENTARY INFORMATION: The

contents of this preamble are listed in

the following outline:

I. Authority

II. Summary of the Final Rule

III. Background of the Final Rule

A. History of Conformity

B. Conformity Under the Clean Air Act As

Amended in 1990

C. Interim EPA/DOT Conformity Guidance

D. Public Participation

E. Conformity of General Federal Actions

IV. Discussion of Major Issues

A. Attainment Areas

1. EPA's Position

2. Supplemental Notice of Proposed

Rulemaking

B. Interim Period

1. Background

2. Phase II of the 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 of Timely

Implementation

2. SIP Revisions Due to TCM Delays

3. Retrospective Analysis of TCMs

4. TCMs in the Absence of a 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 of Failure to Follow

Consultation Procedures

3. Role of State Air Agencies in Conformity

Determinations

4. EPA Role in Conformity Determinations

5. Interagency Consultation Requirements

in DOT's Metropolitan Planning

Regulations

J. Frequency of Conformity Determinations

1. Grace Periods Following Triggers for

Redetermination

2. TIP Amendments

3. SIP Revisions as Triggers

4. Additional Triggers

5. Lapsing of Transportation Plan and TIP

Conformity Determinations

K. Fiscal Constraint

L. Non-federal Projects

1. Requirements for Adoption or Approval

of Projects By Recipients of Funds

Designated Under Title 23 U.S.C. or the

Federal Transit Act

2. Disclosure and Consultation

Requirements for Non-Federal Projects

3. Response to Comments

V. Discussion of Comments

A. Applicability

1. Incomplete Data, Transitional, and "Not

Classified" Areas

2. Length of the Maintenance Period

3. Statewide Transportation Plans and

Statewide Transportation Improvement

Programs (STIPs)

4. Other Transportation 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 SIP Revisions

D. Public Participation

E. Plan Content

1. Plan Specificity

2. Timeframe of the Transportation Plan

F. Relationship of Plan 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 for the actions taken in this

notice is granted to EPA and DOT by

section 176(c) of the Clean Air Act as

amended (42 U.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)

must be 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

HeinOnline -- 58 Fed. Reg. 62188 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62189

rulemaking to propose criteria and

procedures for determining conformity

in attainment areas.

The provisions of this 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 Air Act section 175A (i.e., ozone.

carbon monoxide (CO), nitrogen dioxide

(NO 2), and particles with an

aerodynamic diameter of less than or

equal to a nominal 10 micrometers (PM10)). The provisions of this rule also

apply with respect to the following

precursors of those pollutants: volatile

organic compounds (VOC) and oxides of

nitrogen (NOx) in ozone areas, NOx in

NO2 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 of this 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 of this 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 or maintenance, and

according to the type of action (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 of funding

source, must either come from a

conforming transportation plan and TIP,

have been included in the regional

emissions analysis of the plan and TIP

which supports the plan or TIP's

adoption, or be included in a newly

performed regional analysis.

Transportation projects funded or

approved by FHWA or FTA 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 of time 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 SIP revision has been

submitted, approved, disapproved, or

the Clean Air Act deadline for

submission of the SIP revision has been

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 of the rule are

the same in both parts, except that the

rule does not require a conformity 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 major changes 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 (those not

requiring FHWA or FTA funding or

approval). The reader is referred to the

Discussion of Major Issues and

Discussion of Comments sections for

details on these and other issues.

III. Background of the Final Rule

A. History of Conformity

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 or provide financial

assistance for, (3) license or permit, or

(4) approve any activity which does not

conform to a [State implementation

plan] after it has been approved or

promulgated." Assurance of conformity

was an affirmative responsibility of the

head of each Federal agency. In

addition, no MPO could approve any

transportation project, program, or plan

which did not conform to a State or

Federal implementation plan.

Following enactment of the 1977

Amendments, DOT consulted with EPA

to develop conformity procedures for

programs administered by FHWA and

the Urban Mass Transportation

Administration (now FTA). The June 14,

1978 "Memorandum of Understanding

Regarding Integration of Transportation

and Air Quality Planning" provided

EPA an opportunity to jointly review

and comment on the conformity of

transportation plans and TIPs.

In April 1980, EPA published an

advance notice of proposed rulemaking

on conformity (45 FR 21590, April 1,

1980). EPA maintained that the

Congressional intent of Clean Air Act

section 176(c) was to prevent Federal

actions from causing a delay in the

attainment or maintenance of the

NAAQS. However, no further

rulemaking action was taken.

In June 1980 EPA and DOT jointly

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 of the 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 if they did not adversely affect the

transportation control measures (TCMs)

in the SIP, and if they contributed to

reasonable progress in implementing

those TCMs. A transportation project

would conform if it 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 CFR part 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 of conformity, interpreting

conformity in the context of TCMs

rather than emissions budgets or air

quality analysis. Compliance with the

conformity requirements was to be

demonstrated as part of the planning

and National Environmental Policy Act

(NEPA) processes.

B. Conformity Under the Clean Air Act

As Amended in 1990

In addition to adding specific

provisions regarding the conformity of

transportation actions, the Clean Air Act

Amendments of 1990 expand the scope

and content of the conformity

HeinOnline -- 58 Fed. Reg. 62189 1993
62190 Federal, Register / Vol. 58, No. 225 /' Wednesday, November 24, 1993 / Rules and Regulations

provisions by, defining conform-ty to an

implementation plan to mean

Conformity to- the plan's purpose of

eliminating or reducing the severity and

number of violations of the national ambient

air quality standards and achieving

expeditiou s ttahsment of such, standards;

and that suck activ ities wi1- not i1 cause or contribute to any new violation of any standards in any area; (ii) increase the

frequency or severity of any existing

violation ofany standard in, any area; or (iii)

delay timely attainment of any standard or any required interim emission reductions- or other milestones in any area.

The Clean Air Act Amendments of

1990 emphasize reconciling the

estimates of emissions from

transportation plans and. programs, with

the implementation plan,, rather than

simply providing for the

implementation of TCMs., This

integration of transportation and air

quality planning is intended to protect

the integrity of the 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 are not

undermined.

C. Interim EPA/DOT Conformity

Guidance

On June, 7, 1991,, EPA and DOT jointly

issued guidance for determining

conformity of transportation 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 of the CAA This

rule will supersede the June. 7, 1991,

interim guidance, on. its, effective date.

D. Public Participation

The Notice of Proposed Rulemaking

(NPRM) for this rule was published in.

the Federal Register on January 11,

1993 (58 FR 37681 as a proposed

amendment to 40 CFR part 51. A March

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 15 until May 1, 1993, in

order to allow comment in the context

of the NPRM for conformity of general

Federal actions (see next section). Over

300 written comments were received,

includilg comments from Governors,

State air agencies, State DOTs, MPOs

and other local transportation agencies,

local, air agencies, 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 a complete

Response to Comments document for

this rule.

Three public hearings were held on the transportation conformity NPRM

during the public comment period. In

addition, opportunity to comment on

the transportation conformity NPRM was provided at the public hearing for

the NPRM on conformity of general

Federal actions.

E. Conformity of Genera!Federal

Actions

Section 176(c) of the Clean Air Act

applies to all departments, agencies, and

instrumentalities of the 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 of all other 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 in a separate rule.

Criteria and procedures for determining

conformity of general Federal actions

were proposed in the Federal Register on March 15,1993 (58 FR 13836).

IV. Discussion of Major Issues

A. Attainment Areas

1. EPA's Position

In the NPRM . EPA indicated that the

statute was ambiguous with respect to

whether conformity applied only in

nonattainment areas, or in attainment

areas as well. EPA received significant

public comment arguing that the statute

)should be read to apply conformity also

in attainment areas, based on the

wording of Clean Air Act section

176(c)(11 and the policy merits of such

applicability. Similar comments were received arguing that conformity did not

apply in attainment areas. EPA continues to believe that the

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 policy reasons not to

apply confority in all attainment

areas, given the significant burden

associated with making conformity

determinations relative to the risk of

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 close to

nonattainment levels, for example at

85% of nonattainment levels (see

discussion below).

EPA in tends 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 in the

near future a supplemental notice of

proposed rulemaking dealing with

conformity requirements in attainment

areas. I The requirements of this final

rule will apply only in nonattainment

and maintenance areas, as proposed.

2. Supplemental Notice of Proposed

Rulemaking

While EPA will solicit comments on

other options, the supplemental notice

of proposed: 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) of attainment areas

which have exceeded 85% of the ozone,

CO. NO2, PM-i1 annual, or PM-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 of the 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% of the CO or PM-IO

standard in which motor vehicles-and

transportation project construction. do

not contribute significantly, to ambient

levels of CO or PM-1o would als be

exempt from transportation conformity

requirements, for similar reasons.

Because the merit of exempting certain

1 For PM-O. the areas which would be addressed:

in the supplemental notice are designated "unclassifiable.' The Clean Air Act Amendments of

1990 designated areas meeting certain qualifications as nonattainment for PM-10,by operation of

redesignated to nonattainment, and for

nonattainment areas to be redesignated to

attainment. This rule refers to areas redesignated to

attainment as "maintenance areas."

HeinOnline -- 58 Fed. Reg. 62190 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62191

areas from conformity requirements will

vary depending on the activities being

regulated, the general conformity rule

may propose different exemptions for

applicability of conformity 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 of transportation plans,

TIPs, and projects.

B. Interim Period

1. Background

As discussed in the NPRM, there

exists an "interim period" which lasts

until EPA approves SIPs with control

strategies demonstrating attainment and

reasonable further progress, or

maintenance. Once these control

strategy SIPs are approved, conformity

of plans and TIPs shall be demonstrated

by comparing the emissions expected

from the transportation system when the

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) of the 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 in the Clean Air Act 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 in PM10 and NO2 nonattainment areas

because Clean Air Act section

176(c)(1)(ii) clearly refers to the Federal

activity avoiding increases in the

frequency or severity of any standard.

Interim criteria for PM-10 and NO2

areas are discussed in section IV.D. of

this preamble. EPA sees no way to

ensure that activities will not contribute

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 in future years, if

it included the proposed action and all

other expected regionally significant

projects, would be less than the

emissions from the current

transportation system in future years.

EPA received substantial public

comment on the adequacy of the "build/

no-build test" as a demonstration 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, as required 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

itself expressed concern in the NPRM's

preamble that there might be long

delays before emissions budgets are

approved.

2. Phase H1 of the Interim Period

Phase I of the interim period, which

ends December 27, 1993, was covered

by the EPA/DOT joint guidance of June

7, 1991. The final rule defines Phase U

of the interim period as beginning on

December 27, 1993.

The final rule retains the criteria

which the NPRM proposed for Phase II

of the interim period. In particular,

regional analysis of transportation plans

and TIPs in ozone and CO areas will

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 for EPA 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

motor vehicles and how much to require

from stationary sources. Commenters

also expressed substantial support for

this approach. However, in order to 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 of the

control strategy SIP revision or the

Clean Air Act deadline for submission

of the control strategy SIP revision,

whichever is earlier. In contrast, the

NPRM proposed that Phase II would last

until approval of the 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 of the control

strategy SIP revision and EPA final

action on the control strategy SIP (i.e.,

full approval or disapproval). 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 MPO should 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 of the budget, because of

concern about the potential length of the

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 not loosen the

interim requirement for contribution to

annual emission reductions while

awaiting EPA approval, areas must

demonstrate satisfaction of the build/nobuild test in addition to consistency

with the submitted emissions budget.

Because it is the "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 of a control strategy SIP

revision triggers a requirement for the

transportation plan and TIP to be found

to conform according to the transitional

period criteria and procedures. For

control strategy SIP revisions which are

submitted after November 24, 1993, the

conformity of transportation plans and

TIPs must 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, if the transportation plan and

TIP have not been demonstrated to

conform according to the transitional

period criteria with n 12 months from

the Clean Air Act deadline for control

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 or which do

not involve recipients of Federal funds.

HeinOnline -- 58 Fed. Reg. 62191 1993
62192 Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

Although existing transportation

plans and TIPs remain valid for 12

months following the Clean Air Act

deadline, new transportation plans and

TIPs which ar approved more than 90

days following subrission of the

control strategy SIP revision must be

found to conform according to

transitional period criteria and

procedures. During the first 90 days

ollowing submission of the, (omtrol

strategy SIP revision, new transportation

plans and TIPs my be found to conform

according to the Phase II intesim period

criteria and procedures. However, the

conformity status of these trnsportation

plans and TIPs will lapse =a months,

from the Clean Air Act deadline for

submission if conformity is not

redetermined according to the,

transitional period criteria and

procedures..

The 90-dny period is intended to

accommodate MPOs which are close to.

completing a long-scheduled plan and

TIP adoption at the time the SIP

revision is submitted, to provide DOT

time to review and concur in those (and

any pending previous) MPO actions

which it must review, and to provide

time for all involved parties to obtain

and understand the budget implications

of the SIP revision.

The 12-month period to redetermine

conformity according to the transitional

period criteria and procedures is an

outside limit; EPA hopes that most

MPOs will revise their TIPs as necessary

and redetermine conformity even earlier

than within 12 months. A date certain

is provided (rather than starting the 12,

months.on the 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

must be redetermined according to

transitional period criteria and

procedures by November 25. 1994. or

they will lapee. Conformity

determinations on new transportation

plans and TIPs must be made accordinig

to the transitional period 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 if they are not redetermined

according to transitional period criteria

and procedures.

At any time during the transitional

period when the currently conforming

transportation plan and TIP have not yet

been found to conform according to the

transitional period criteria and

procedures, the State air agency must be

consulted regading any new regionally

significant pro*ct which would

increase sing ccpant vehicle

capacity [a new general purpose

highway on a new Wcation or adding

general purpose lanes). The State air

agency must be consulted on how the

emissions from the implementation of

the currently conforming tramportation

plan ard TIP (estimated in the "build"

scenario in the transportation plan and

TIP's conformity deiermination)

compare: to the motor vehicl, emissions

budget in the SIP, or the projeced motor

vehicle emissions budget in the SIP

under development. The State air

agency may escalate to the Governor any

unresolved disputes, as with any State

air agency comments on a conformity

determination.

Because SIPs must contain specific

measures to achieve thi planned

emissions reductions, and in the case of

transportation the MPG should have

assisted in developing these measures,

the rule's transitional period

requirements should not impose any

unanticipated or impossible burden on

the MPO. In fact, EPA anticipates that

many control strategy SIW will be

developed from an emissions analysis of

the transportation plan and TIP which

are in place at the time of SIP

submission. Where the MPs analysis

of the plan midTIP was used for the

SIPs emissions projection ard there are

no projects in the SIP which ae not

from the transportation plan and TIP,

the rule states that the bM and DOT

can determine conformity of the

transportation plan and TIP according to

the transitional criteria without new

emissions modeling mad without having

to apply the criteria for current planning

assumptions and latest emissions

models. If the MPO and DOT avail

themselves of this opion, however, the

three-year limit for full redeternmination

of the pla and TIP is not reset.

As described more completely in the

next section of this preamble, the rule

provides that a SIP submittal is

sufficient to start the transitional period

even if it includes only commitments to

implement some parts of the control

strategy. The MPO and DOT 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 fw meeting an

emission reduction orattamnment

requirement of the Clean Air Act but it

has not adopted all measures in the

strategy in an enforceable form suitable

for EPA approval. For example, certain

VOC limits for consumer products may

not have been adopted yet, or an

inspection program fordiesel trucks

aimed at PM-1 reductions may not

have been put in regulatory form yet.

However, emission reductions for these

measures may have been quantified aid

included in the total emission

reductions for the straegy.

EPA's tolerance of committed

measures when starting the transitionel

period is intended to allow the

transportation community to. proceed

with its part of the 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 is distinct from the

possibility of EPA conditionally

approving counittas under section

1104k)4). Today's rule does nt

prejudge EPA action in regard to

completeness or incompleteness

finding, approvals, conditional

approvals, partial approvals, or

disapprovals of SIP revisions..

Once EPA has approved the control

strategy SIP revision, the transitional

period ends and the control strategy

period begins. During the control

strategy period, the regkoa test fo

transportation pkms and TIPs requires

only consistency with the motor vehicle

emissions budget in the approved SIP.

Conditional approval or approval of

specific control measures without

approval of the 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, Finds Incomplete, or

Disapproves.

EPA believes it is reasonabIe to

interpret the requirement to contribtfe

to emission reductions as demanding

some greater contribution when the

State has failed to establish emission

budgets in a timely fashion, and as the

time remaining before the attainment

deadline decreases. EPA believes that in

the prolonged absence of a control

strategy SIP which allocates the

emission reductions required by the

Clean Air Act 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 further progress and

attainment. This will also provide

incentive for the relevant actors within

the State to agree on control strategies

and-emissions budgets for the SIP.

HeinOnline -- 58 Fed. Reg. 62192 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62193

If the control strategy SIP revision is

not submitted, no new transportation

plans or TIPs 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 or TIPs may be

found to conform beginning 120 days

after the incompleteness finding. In both

cases, the conformity status of the

existing transportation plan and TIP

lapses 12 months after the date that the

Clean Air Act requires submission of the

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 Air Act 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 of failure 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 of such a failure,

EPA will also consider whether it is

appropriate to propose and impose

discretionary sanctions under section

110(m).

The conformity status of the

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 one year 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 of this 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 of such a

submittal are inappropriate if the only

reason for these findings is that the State

has not completed legislation or

rulemaking to put all of the 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 Air Act (for

example, the 15 percent rate-of-progress

requirement for moderate and above

ozone nonattainment areas), but

accompanied by commitments to

complete adoption of additional

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'

of the plan and TIP) will not ensue on

the timeframe described there. Rather,

the MPO and DOT may treat the

submittal as if it were complete and still

being evaluated by EPA for substantive

approvability, and continue to make

conformity findings for new plans and

TIPs and for projects using transitional

criteria. However, EPA is concerned that

the MPO not rely-on the budget

indefinitely if the State in fact does not

complete adoption of the measures to

which it committed or other equivalent

measures. Therefore, the rule provides

for the plan and TIP to lapse 12 months

after the date of the EPA incompleteness

finding, or 12 months from today in the

case of an incompleteness finding made

prior to today. This lapse will be

avoided if the State remedies the failure

and the EPA Regional Administrator

recognizes that action by letter.

If the conformity status of the

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 of a 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 if the 1996 reasonable further

progress demonstration has been

submitted or approved. For example,

the conformity status of transportation

plans and TIPs will lapse as described

above if States fail to submit the post-.

1996 reasonable further progress and

attainment demonstration within 120

days of this deadline. Similarly, the

requirements of the 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. The transitional period

requirements do not apply in the case of

such SIP revisions.

C. Emissions Budgets

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) of the Clean Air Act

specifically requires conformity

determinations to show that "emissions

expected from implementation of plans

and programs are consistent with

estimates of emissions 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.

HeinOnline -- 58 Fed. Reg. 62193 1993
62194 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

While other mechanisms exist to

show that Federal actions do not cause

or contribute to a violation of an

ambient standard for a regional

pollutant--such as duplication of the

SIP's dispersion modeling for the

transportation network represented by

the transportation plan or TIP-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 the air

quality analysis in the SIP can be relied

upon to show that the SIP emission

level is acceptable in this regard.

1. What Is a Motor Vehicle Emissions

Budget?

Motor vehicle emissions budgets are

the explicit or implicit identification of

the motor vehicle-related portions of the

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 Air Act 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 as defined in the rule, although

they may not have their emissions

budgets explicitly labeled because the

requirement for a 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 or maintenance highway

and transit mobile source inventory

serves the purpose of a motor vehicle

emissions budget (see "Locating the

Motor Vehicle Emissions. Budget in the

SIP," below). EPA's General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990 (57

FR 13557, April 16, 1992) did indicate

EPA's intent to require the use of SIP

motor vehicle emissions budgets for

conformity demonstrations. In future

SIPs, explicit identification of the

emissions budget is strongly preferred

in order to reduce misinterpretation.

The SIP necessarily defines an

emissions budget for the attainment year

ipn an attainment demonstration, for the

maintenance period in a maintenance

plan, and for certain milestone years.

The SIP may also set budgets for interim

years as necessary 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 is defined, 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 a maintenance 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 of the transportation

plan and TIP will subsequently lapse,

and the existing budget ceases to apply

for the purposes of demonstrating

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 of the 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 emission budget and included in

the SIP. Conformity determinations

must demonstrate consistency with the

motor vehicle emissions budget for each

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 of that pollutant. If the control

strategy SIP demonstrates that motor

vehicle emissions of a precursor are

insignificant and reductions are not

necessary for attainment, the conformity

determination is not required to satisfy

the criteria for regional emissions

analysis of the precursor. In the future,

the SIP must explicitly state that no

regional emissions analysis of a

particular pollutant or precursor 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 as mobile 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 of the 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 not have control

over refueling emissions.

2. Emissions Budget Test

A regional analysis must estimate the

emissions which would result from the

transportation system if the

transportation plan and TIP were

implemented, and compare these

emissions to the motor vehicle

emissions budget identified in the SIP.

If the 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

HeinOnline -- 58 Fed. Reg. 62194 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

though all transportation measures in

the SIP are being properly implemented;

for example, if population and VMT

growth are higher than predicted when

the SIP was developed, motor vehicle

emissionj may exceed the SIP's budget

for such omissions.

Under no circumstances may motor

vehicle emissions predicted in a

conformity determination exceed the

motor vehicle, pollutant-specific

emissions budget. If actual 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 may be increased only if the

State submits a SIP revision which

changes the various emissions budgets.

Such a SIP revision must meet all

applicable Clean Air Act requirements,

including those of section 110(1).

Conformity determinations may not

trade emissions among SIP budgets 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

SIP establishes mechanisms for such

trading. Today's final rule requires

transportation plans and TIPs to

demonstrate consistency with the SIP's

motor vehicle emissions budget by

performing a regional 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 must estimate total projected

emissions for certain future years

(including the attainment year), and

may include the effects of any emission

control programs which are already

adopted by the enforcing jurisdiction

(such as vehicle inspection and

maintenance programs and reformulated

gasoline and diesel fuel). In the

transitional period, the effects of

emission control programs which are

committed to in the submitted SIP may

also be included.

When performing the regional

emissions analysis for the purpose of

the budget test, attention must be paid

to the season and time period for which

the SIP defines the emissions budget,

and the period used by the MPO and

DOT to estimate regional emissions for

a plan, TIP, or project. For example,

reasonable further progress milestones

for ozone areas are defined in the Clean

Air Act based on annual emissions, but

EPA interprets this to mean emissions

when temperatures, congestion levels,

and other conditions are typical of a day

during the ozone season (a typical

summer weekday), multiplied by 365

days, rather than actual annual

emissions across all seasons. Further,

EPA guidance in "Procedures for

Emission Inventory Preparation Volume

IV: Mobile Sources" (EPA 450/4-81-

026d (revised), 1992) specifies a

particular way to select temperature

values for the emissions estimates. Also,

SIPs may calculate emission reductions

from fleet turnover using either July 1 of

the milestone year, or November 15 (by

interpolating between the July 1 and

January 1 outputs of the 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, or the

MPOs must act together to make a

conformity determination for the

nonattainment area. If a metropolitan

planning area includes more than one

air basin or nonattainment area, a

conformity determination must be made

for each air basin or nonattainment area.

The conformity SIP revision must

establish interagency consultation

procedures which address how

conformity determinations will be made

in such circumstances.

3. Locating the Motor Vehicle Emissions

Budget in the SIP

Existing SIPs may not all have an

explicitly labeled motor vehicle

emissions budget. EPA indicated in the

General Preamble to Title I of the Clean

Air Act Amendments of 1990 that the

highway and transit vehicle related

emissions included in the SIP would be

considered to be 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 is the motor vehicle

emissions budget. In general, the SIP will either (1)

demonstrate that once the control

strategies in the 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 prior to the

attainment deadline or will result 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

of emissions from each source category

for the attainment year, maintenance

period, or other milestone year. The

projection of motor vehicle emissions is

the motor vehicle emissions budget.

Where the estimate of emissions from

all sources is less than required to

demonstrate the milestone, attainment,

or maintenance, the SIP may explicitly

quantify the "safety margin" and

include some or all of it in the motor

vehicle emissions budget for purposes

of conformity. Where the existing SIP is

unclear, the State air agency and the

appropriate EPA Regional Office should

be consulted through the interagency

consultation process to define the

emission budget. Unless the SIP

explicitly quantifies the "safety margin"

and explicitly states an intent that some

or all of this additional amount should

be available to the MPO and DOT in the

emissions budget for conformity

purposes, the MPO may not interpret

the budget to be higher than the SIP's

estimate of future highway and transit

emissions.

If the attainment demonstration

includes projections of emissions

beyond the attainment year, these

projections are not considered

emissions budgets for the purposes of

transportation conformity unless the SIP

explicitly states such an intent. Whbre

the attainment SIP does not establish

explicit emissions budgets for years

following the attainment year, emissions

in analysis years later than the

attainment year must be 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 for a given period

of time into the future. Section 175A of

the Clean Air Act requires a

maintenance plan to provide for

maintenance for a period of ten years

from its approval by EPA, but the Act

does not specify any particular

milestones within this period for which

an analysis and demonstration must be

made. At a minimum, the SIP should

establish an emissions level that will

demonstrate maintenance at the end of

the ten-year period. EPA will be

releasing more specific guidance

regarding conformity to budgets in

maintenance plans in the future. For

areas that have been redesignated to

attainment prior to this rule, the MPO

and DOT should work with the EPA

Regional Office through the interagency

1993 / Rules and Regulations 62195.

HeinOnline -- 58 Fed. Reg. 62195 1993
62196 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

consultation process to interpret the

maintenance plan to define an

emissions budget. EPA recommends

amending maintenance plang to

explicitly identify the 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

or will be reclassified as serious areas

under section 188(b) of the Clean Air

Act. Such SIPs which 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 is submitted,

these areas must satisfy the interim

period criteria in order to demonstrate

conformity.

The above discussion on locating the

emissions budget in the SIP assumed a

simple case in which the geographic

boundary of the 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 Act explicitly defines

reasonable further progress

requirements in terms of the emissions

inventory for the entire nonattainment

area, and EPA believes that the best

interpretation is that the Act also means

to have the attainment budget also be

defined for the nonattainment area per

se. While ozone area SIPs may contain

estirhates of current and future

emissions outside the nonattainment

area, these are not budgets for purposes

of conformity (unless the State in its

conformity SIP revision chooses to go beyond the requirements of the rule).

For CO, PM-10, and NO2

nonattainment areas, there are either no

Clean Air Act requirements for

reasonable further progress, or the

requirements are not explicitly defined

in terms of the nonattainment area

inventory as a whole. Moreover, it may

be possible for a SIP to demonstrate

attainment for one of these pollutants

based on an emissions and dispersion

modeling domain that is either less or

more than the nonattainment area. For

example, an entire county may be

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 of the designated

nonattainment area, to capture the effect

of transport 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. If the

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 of the standard or any

milestone in the required timeframe.

The State may choose to revise its SIP

emissions budgets in order to reallocate

emissions among sources or among

pollutants and precursors. For example,

if the SIP is revised to provide for

greater control of stationary source

emissions, the State may choose to

increase the motor vehicle emissions

budget to allow corresponding growth

in motor vehicle emissions (provided

the resulting total emissions are still

adequate to provide for attainment/

maintenance of the 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

for the purposes of transportation

conformity. In cases where a SIP submitted prior

to November 24, 1993 does not have 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

of conformity. 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 of transportation

conformity before It is approved by

EPA. All other SIP revisions adjusting

the highway and transit emissions

budget must be approved by EPA before

they are used for the purposes of

transportation conformity.

EPA would allow early use of a SIP

revision which reallocates part of the

safety margin because some SIPs were

developed before this rule and without

awareness that in the absence of an

explicit budget, the emissions

projections would be used as the

emissions budget for the purposes of

conformity. Areas which submit SIPs

with budgets after the 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 of the region,

provided that the SIP includes a

demonstration that the subregional

emissions budget, when combined with

all other portions of the emissions

inventory, will result in attainment and/

or maintenance of the standard. The

conformity determination must

demonstrate consistency with each

subregional emissions budget in the SIP.

EPA's General Preamble for the

Implementation of Title I of the Clean

Air Act Amendments of 1990 discussed

the possibility of subregional budgets

(57 FR 13558, April 16, 1992).

6. Requirements for a SIP Control

Strategy to Meet the Budgets

A SIP may not select a desired level

of future highway and transit emissions

and rely on the requirement for

conformity findings by the MPO and

DOT to achieve that level of emissions

without specifying control measures

which are expected to result in that

emission level and demonstrating that

each measure is enforceable and has

adequate resources for implementation

(see sections 110(a)(2) (A), (B), and (E)

of the Clean Air Act). An approvable SIP

must indicate how the State expects to

be able tO achieve each budgeted level

(including any subregionally budgeted

level) of emissions by the relevant date.

The MPO will usually have been

involved in estimating "baseline" future

emissions (i.e., emissions in the absence

of any new actions to control them), and

in designing and estimating benefits for

any new controls that are identified in

the SIP.

Any type of transportation action

affects emissions under some

conditions, and therefore the SIP's

demonstration of future emissions will

in a sense rely on the full collection of

those actions that were assumed. EPA

believes that all actions which the SIP

relies on to reduce travel, such as plans

for expanded 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 in the

transportation plan and TIP in effect at

the time of SIP submittal will be

sufficient evidence of adequate

resources.

HeinOnline -- 58 Fed. Reg. 62196 1993
Federal Register / Vol. 58, No: 225 / Wednesday, November 24, 1993 / Rules and Regulations 62197

D. NO2 and PM-1O in the Interim Period

EPA proposed in the NPRM to allow

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 of VMT

reduction might be needed to pass a

build/no-build comparison, and because

the Clean Air Act did not appear to

require it. (The requirement 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 a build/no-build test. EPA

believes that either of these

demonstrations is sufficient to assure

that there is no increase in the

frequency or severity of existing

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 itself causing a new violation or

exacerbating an existing one. EPA is

retaining the option of keeping

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 of definitive 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 to be

used as the baseline. However, Clean

Air At section 172(c)(3) requires a "current" inventory of emissions. Since

this will be 1990 in most cases, the final

rule establishes 1990 as the baseline

year, unless the conformity SIP revision

defines it as the year of the baseline

emissions inventory used in control

strategy SIP development.

E. NO,, Reductions in Ozone Areas in

the Interim Period

The NPRM did not propose to require

demonstration of NO,, 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) of the Clean Air Act that

additional reductions of NO,, would not

contribute to attainment in any area.

F. Transportation Control Measures

(TCMs)

1. Demonstration of Timely

Implementation

Like the proposal, the final rule will

allow the "timely implementation"

criterion to be satisfied even if TCMs are

behind the schedule in the SIP, i.e.,

even if a SIP milestone for TCM

implementation has already passed or

the plan or TIP in question will result

in a future implementation milestone

being missed. EPA received comment

on both sides of this 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

Air Act requires "timely

implementation" of TCMs, conformity

may be demonstrated when TCMs are

delayed only if all obstacles to

implementation have been identified

and are being overcome, and if State and

local agencies with influence over

approvals or funding 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 of a TCM implementation

milestone which is later than the SIP

schedule if the lateness is due to delays

which have already occurred, or due to

the time reasonably required to

complete remaining essential steps

(such as preparation of a NEPA

document, design work, right-of-way

acquisition, Federal permits,

construction, etc.). It is also permissible

to allow time for obtaining state or local

permits if the 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 be missed, 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 of other projects may

be affected. It is not permissible to have

prospective discrepancies with the SIP's

TCM impleinentation schedule due to

lack of programmed funding in the TIP,

lack of commitment to the project by the

sponsoring agency, unreasonably long

periods to complete future work due to

lack of staff or other agency resources,

lack of approval or consent 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 (within the flexibilities of the

Intermodal Surface Transportation

Efficiency Act (ISTEA)) with responding

to damage from natural disasters, civil

unrest, or terrorist acts, TCM

implementation can be determined to be

timely without regard to the above,

provided reasonable efforts are being

made. The burden of proof will be on

the agencies making conformity

determinations to demonstrate that the

amount of time to complete remaining

implementation steps will not exceed

that specified in the SIP without good

cause, and that where possible, steps

will be completed more rapidly than

assumed in the SIP in order to 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 SIP revisions' interagency

consultation procedures must address.

Considerable comment was received

regarding priority for TCMs and

demonstration of timely implementation

of TCMs. In response to comments that

a part of § 51.394 "Priority" could be

interpreted to weaken timely

implementation of TCMs rather than

promote it, EPA has deleted language

HeinOnline -- 58 Fed. Reg. 62197 1993
62196Federad Regisser ) Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

which required fending decisions to

promote the timely'implementation of

transportation measures in the

applicable implementation pen -to the

extent that fnds ae available."

There was also significant comment

regardingthe relationship between TCM

funding and timely implementation.

Some commenters suggested that TCMs

should be funded before obligations

were made for any other TIP prjects, or

that TCM funds should 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 actually have

funds obligated. Timely implementation

could then be demonstrated in the next

TIP through additional promises to fund

the TCMs in the upcoming lIP cycle,

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 of this

issue, EPA has concluded that the

Federal transportation funding process

does not offer practical opportunities to

control the use of appropriated funds

once they are apportioned or allocated.

State DOTs and MPOs need flexibility

in establishing the sequence in which

projects are funded, due to

unpredictable events in the timing of

the project implementation process.

This rules out requiring all TCMs to be

obligated before other projects.

Furthermore, setting aside funds for

TCMs poses special difficulties. A setaside would in effect be a lower limit on

obligations for all other projects. DOT

informs EPA that it is not authoized to

reduce States' obligation limits in this

way. In additiort, when TCMs are

legitimately delayed for reasons beyondany agency's control, the obligation

authority cannot be reserved. If a State

will be unable to use its obligation

authority by the end of the Federal fisc&l

year it must be released so DOT ca

redistribute it to other States that can

use it. Any obligation authority not used

by the end of the fiscal year lapses and

is not available in subsequent years.

Therore, EPA believes it is not

reasonable to impose extra controls on

how MPCM and State DOTs spend

Federal highway and transit funds,

beyond the requirements for maximum

priority for approval and funding and

for timely implementation of TCMs. The

ISTEA requirements for fiscally

constrained trnsportation plans and

TIPs also provide assurance that fhnds

are reasonably available, to implement

TCMs as well as the other projects in the

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 a SIP revision

when a TCM falls behind the schedule

in the SIP. However, plans and TIPs

cannot be found in conformity unless

the "timely implementation" criterion is

satisfied. Therefore, if obstacles to TCM

im plementation are not being overcome

because it is impossible to do so, if State

and local agencies are not giving

maximum priority toTCMs which are

behind schedule, or if the original

sponsor or the cooperative planning

process decides not to implement the

TCM or decides to replace it with

another TCM, a SIP revision which

removes the TCM will be necessary

before plans and TIPs may be found in

conformity. {in order to be approved by

EPA, such a SIP revision must include.

substitute measures that achieve

emissions reductions sufficient to meet

all applicable requirements of the Clean

Air Act, including section 110(l).) The

interagency consultation procedures

established by the 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 the comments EPA received on

this issue. Most commenters did not

favor an automatic requirement for a SIP

revision in the case of every TCM

implementation delay, although many

believed that SP action might be

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 if the

implementation of other TCMs were

delayed. Although the SIP may have

automatic project and/or funding

substitutes in the case of TCM delays,

the final rule does not require this. In

general, the Clean Air Act does not

require individual measures to have

automatic substitutes in case of nonimplementation.

3. Retrospective Analysis of TCMs

Neither the proposal nor the final rule

requires the determination of timely

implementation to be based on

retrospective analyses of TCM

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

of the area's TCMs. in order to satisfy

the criterion regarding use of the latest

planning assumptions.

EPA believes that the transportation

community should be held responsible

through the conformity process for

implementing TCMs which the State

committed to in the SWP. However, EPA

does not believe it is appropriate 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 future conformity

determinations through use of the latest

planning assumptions, and because

conformity is ultimately based on a

comparison with an emissions budget,

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, or the transportation plan and TIP

will not be in conformity. In addition,

serious and above ozone areas are

required to track aggregate VMT and

vehicle emissions under section

182(c)(5)(A) of the Clean 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 the latest planning

assumptions.

4. TCMs in the Absence of a Conforming

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 indicating that

TCMs in the SIP should be able to

proceed even in the absence of a

conforming transportation plan and TIP,

because the commenters considered

them to be consistent with the purpose

of the SIP.

The final rule 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 exist in order to find

projects in conformity. EPA does not

believe that Clean Air Act section

HeinOnline -- 58 Fed. Reg. 62198 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

176(c)(1)'s very general definition of

conformity as meaning conformity to

the purpose of the SIP overrules this

more specific requirement. According to

the final rule, 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

for a conforming transportation plan

and TIP to be in place.

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 of the conformity

requirement for transportation plans

and TIPs is that transportation actions

must be planned and evaluated for

emissions effects in the aggregate and

for the long term. Allowing project-byproject approvals in the absence of a

conforming transportation plan and TIP

is contrary to this philosophy. If TCMs

proceed outside the context of the

transportation plan and TIP, there is no

assurance that the alternatives analysis

has been properly conducted and that

the effect of the 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 a conforming

transportation plan and TIP or to revise

the SIP so that this is possible, it is

important for all constituencies to have

a stake in their development. Allowing

TCMs to proceed without a conforming

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

the project design concept and scope

(including any mitigation or control

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 that before a

project may be found in conformity,

there must be written enforceable

commitments from the project sponsor

and/or operator that necessary projectlevel mitigation or control measures will

be implemented as part of the

construction and operation of the

project. Specifically, the rule refers to

project-level mitigation or control

measures which are identified as

conditions for NEPA 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 as a condition for making

conformity determinations.

Normal project design elements

(dimensions, lane widths, materials,

etc.) are not 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 either to

a specific operating policy, or to an

interactive process to 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 a toll which results in a given

level of average daily traffic on the

facility. Actual other projects that are assumed

in a current project's conformity

analysis to be completed and

operational at a future date-such as

parallel non-SOV service--are not

considered to be mitigation or control

measures for the current project and

would not require written

commitments. The requirement to use

the latest planning assumptions will

ensure that conformity analyses reflect

the current plans 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 or their equivalent will be

implemented.

WIthe regional emissions analysis

supporting a plan or TIP conformity

determination includes project-level

mitigation or control 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 to be "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 of the

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 of the Clean Air Act, which

authorizes EPA to enforce the

provisions of rules 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 of the Clean Air Act, 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 for review of all

indirect sources. Rather, EPA is

enabling Federal agencies to make

positive conformity determinations

under Clean Air Act 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 is requiring them

to live up to such commitments.

Without such a requirement, EPA could

not allow positive conformity

determinations based on mitigation

measures prior to actual construction of

mitigation measures.

If at 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 of its obligation if it shows in

a regional emissions analysis of the

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 for the transportation

plan, TIP, and project would still be

1993 / Rules and Regulations 62199

HeinOnline -- 58 Fed. Reg. 62199 1993
62200Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

valid if the mitigation measure is not

implemented.

If the mitigation measure was not

included in the project design concept

and scope which was modeled for the

purpose of the transportation plan and

TIP conformity determination, the

project sponsor or operator would not

have to perform a regional emissions

analysis in order to be relieved of its

obligation. The MPO and DOT could

confirm that the conformity

determinations for the transportation

plan and TIP are valid without further

emissions analysis. However, a hot-spot

analysis would be necessary in order to

demonstrate that the project-level

conformity determination is valid even

without the mitigation measure.

H. Time Limit on Project-Levetl

Determinatioms

Several commenters expressed

concern that by proposing in the

"Applicability" section that projects

with a completed NEPA document and

a project-level conformity determination

may proceed unless there has been a

significant change in design concept

and scope or a supplemental

enviromnental documem for air quality

reasons, the proposal would have

allowed too many projects to proceed

without an updated conformity analysis.

Upon reflection, EPA believes that it is

appropriate to respect prior

determinations for projects which have

received fial approval, provided there

have been no significant changes in

project design ccept and scope and

major steps have been taken to advance

the project. However, EPA believes that

it is reasonable to require a new

conformity determination if there is no

ongoing activity that would be delayed

during the redetermination process and

if several yem have elapsed since the

original determination, during which

emissions models and planning

assumptions may have changed. EPA wants to balance two conflicting

goals: (1) To maintain a stable and

efficient transportation planning process

by avoiding costly reanalysis and

project redesign, and (2) to protect air

quality by taking into account changes

to the real wold or to our

understanding of it (e.g., changes to the

transportation network, the planned

transportation network, planning

assumptions, or models). By proposing

to allow projects which have final

approval to Proced, and by proposing

to require 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 for reevaluating

NEPA documents and determining if

supplemental NEPA documants we

necessary. However. this process does

not have clear commltatioD procedures

or criteria for determining whm

supplemental analysis is necessary.

Therefore, the final rule allows

implementation to continue for only

those projects which have a completed

NEPA document and project-level

conformity determination, and which

have had one of the following major

steps within the past three years: NEPA

process completion; start ot final design;

acquisition of a significant portion of

right-of-way; or approval of the plans,

specifications and estimates. The rule

would require a new finding of projectlevel conformity if the State seeks DOT

authorization for a new step or phase of

a project which has not had orie of these

major steps within the pest three years.

Thus, in contrast to the proposal,

roject-level conormity determinations ae autometically under certain

circumstances rather than lapsing

through a DOT determination that a

supplemental NEPA document is

necessary. DOT's NEPA regulations

require reevaluation of NEPA

documents for projects which have not

had major action for tlree years; the

conformity process will ensure that the

effects of new planning assumptions

and emissions models are explicitly and

affirmatively considered with the

benefit of interagency consultation.

Under the EPA/DOT interim guidance

issued June 7, 1901 and under the

NPRM, projects which had received a

conformity determination but had been

inactive for more than three years were

allowed to be included in the

"Baseline" (no-build) scemario,. and

were also included in the "Action"

(build) scenario. Consequentl, they did

not influence the outcome of the build/

no-build comparison even if the actual

effect of their completion would be to

increase emissions. For the same

reasons that EPA believes 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 the project is

treated as a newly proposed project.

Accordingly, the rule requires that for

the first instance after today in which

the MP0 and DOT apply a build/nobuild test to the plan and TIP, the

project should appear in the build but

not in the no-build scenario, if the

project remains in the plan or TIP. In*

subsequent plan and TIP conformity

determinations, the project will appear

in both scenarios regardless of how

much longer it remains inactive or

whether it experiences a new period of

inactivity. The, project's effects will

always be accounted for in tie budget

test during the transitional or control

strategy period, as long an the project

has not been removed from the

transportatiou pln.

The requirement to redetermine

project-level conformity is independent

of the requirement to include the project

in the build scenario for one plan and

TIP conformity determination. The

project may be considered to come from

a currently conforming transportation

plan and TIP for the purposes of a

project-level conformity determination

even if the project has not yet been

removed from the no-build scenario

This would not rlieve the MPO of the

responsiiility to include the pcoject's

emissions only in the build scenar in

the next plan and TIP redetermination,

However, the MPOand the project

sponsor should consult on whether it is

desirable to approve the project before

it has been analyzed with its emissions

ircluded in the build scenario only,

since completing the project might

reduce options for the rest of the

transportation system. Once a reactivated project with a

lapsed project-level determination has

been properly analyzed as part of a TIP,

the redetermination of project-level

conformity will. dped upon the

consideration of hot spots. In all cases,

once a project-level determination has

lapsed, a new finding of project-level

conformity must be made. However,

under certain circumstances, a

redetermination of conformity foc a

project with respect to hot spots may be

based on the analysis performed for the

previous conformity determination For

example, if there have been changes

since the previous analysis to the

emissions models, planning

assumptions, or current facts or

assumptions regarding the

transportation network or traffic

volumes, it may still be possible to

demonstrate that the hot-spot criterion

is satisfied by making approximate

calculations and judgments about the

effect of the latest information on the

previous analysis. If the previous

analysis predicts a concentration which

is not close to the ambient air quality

standard and the changes in emissions

models or planning assumptions are not

significant, it may be possib4e to

demonstrate conformity without a

complete reanalysis. Such decisions

about models and methodologies for

hot-spot analyses are the subject of

interagency consultation. . Although EPA wants the effects of

new planning assumptions and

HeinOnline -- 58 Fed. Reg. 62200 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62201

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 to be

made on the basis of previous analyses,

EPA hopes that rigorous reanalyses will

not need to be performed in all cases.

I. Interagency Consultation

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 of meetings,

without establishing minimum

standards. The conformity SIP revision

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 of specific requirements Statesv

may choose to include, such as

consultation on the unified planning

work program; early notification

announcing the initiation of major work

efforts; establishment of oversight

committees involving all significant,

interested parties; forms of

announcement of comment periods;

interagency notice of public hearings;

specific consultation requirements for

plans and TIPs which DOT returns to

the MPO or State DOT for additional

conformity findings; and availability of

the MPO'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 of extensive,

effective consultation procedures that

will resolve problems as early in the

process as possible and that will

facilitate the development of approaches

to maximize air quality and mobility.

Until the conformity SIP revision is

approved by EPA, the consultation

requirements of the final rule may be

satisfied if reasonable opportunity for

interagency consultation is provided.

2. Consequences of Failure to Follow

Consultation Procedures

The preamble to the notice of

proposed rulemaking asked for

comment on what should be the

consequences of failure to follow the

consultation procedures established in

the conformity SIP revision. The final

rule establishes as a criterion for

determining conformity that the MIPO

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 of the SIP

and would also undermine the validity

of the conformity determination. The

final rule's approach is consistent with

the majority of commenters, who

believed that the validity of a

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 Air Agencies in

Conformity Determinations

EPA received many comments

regarding the role of State 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 if consensus 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 if they

cannot be resolved by State agency

heads. The State air agency may delay

an MPO or State DOT's conformity

determination if interagency

consultation has been pursued to the

level of the head or chair of both

agencies, and if the air agency 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. If no

appeal is made during the 14-day

waiting period after the State DOT or

MPO has notified the State air agency

head of the resolution of its comments,

the MPO or State DOT may finalize its

conformity determination. The

Governor may delegate his or her role in

the process, but not to the head or staff

of the State or local air agency, State

DOT, State transportation commissions

or boards, or MPO. The start of the 14-

day clock and the form(s) of escalation

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 SIP revision.

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 no direct 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

CFR part 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 the MPO

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.

HeinOnline -- 58 Fed. Reg. 62201 1993
62202 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 /.Rules and Regulations

1. Frequency of Conformity

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 of the

final rule or EPA approval of certain SIP

revisions. Some commenters expressed

the need for longer or more 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 (if not 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 of the final rule, making

the 18-month trigger redundant for

budget purposes, although still

important for assessing timely

implementation of TCMs.

It should be emphasized that any new

conformity determination following

promulgation of the final rule or

approval of a SIP revision 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 of existing 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 of existing 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 of a 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 of the final rule must be

made according to the requirements of

the final rule, even if the conformity SIP

revision has not yet been approved.

Once the conformity SIP -revision has

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 of the final rule is not in

any way tied to the deadline for

submission of a conformity SIP revision.

2. TIP Amendments

The NPRM proposed that each TIP

amendment requires a conformity

determination, unless the amendment

merely adds or deletes exempt projects.

The final rule requires notification to

other agencies of such 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 if the MPO and DOT make a

finding that the previous analysis is still

valid. That is, if the 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 if a project is

moved between TIP years, but its

completion date is still within the same

year, or changes by more than a year but

not enough to affect a milestone year.

Under DOT's metropolitan

transportation planning regulations,

moving a project from the second or

third year of the TIP does not require a

TIP amendment, and therefore, a

conformity determination would not be

required. When a project in the first year'

of the 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

or other 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 of TCMs should

focus on the changes to the TIP which

impact TCM implementation. A new

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 if by 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 SIP revision 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

or DOT 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 of the SIP revision to EPA,

or EPA approval of the SIP revision.

EPA received significant comment

advocating each of these approaches. In

general, the final rule follows the

NPRM's approach of using EPA

approval of the SIP revision as the

triggering event. Section 176(c) of the

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 -with the motor vehicle

emissions budget in the submitted SIP,

even before it is approved. EPA requires

use of a submitted SIP in this case

because EPA believes a SIP emissions

budget, even if it is not yet approved, is

HeinOnline -- 58 Fed. Reg. 62202 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

the best way to determine "contribution

to annual emissions reductions

consistent with sections 182(b)(1) and

187(a)(7)," in the absence of an

approved SIP, as required by section

176(c)(3)(a)iii) of the Clean Air Act.

Even in this case, EPA does not consider

the submitted control strategy SIP, or

any other SIP which is not yet

approved, to be an "applicable

implementation plan."

Although EPA is in most cases not

adopting the option of triggering

conformity determinations with SIP

submission, EPA believes the final

rule's interim and transitional period

criteria and procedures do address the

concern of many 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 the stability of the

transportation planning process and

considering new information as

expeditiously as possible. Some

commenters supported additional

triggers, such as changes in assumptions

about assumed transit ridership (due to

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 for new 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

order to satisfy the criterion which

requires use of the latest planning

assumptions.

5. Lapsing of Transportation Plan and

TIP Conformity Determinations

The final rule clarifies that if

transportation plan and TIP conformity

determinations are not made within the

three-yeartimeframe for periodic

redetermination or within the grace

period following a trigger, the

conforming status of the transportation

plan and TIP will lapse. In the absence

of a conforming transportation plan and

TIP, no new project-level conformity

determinations may be made. Also,

although non-federal projects do not

require conformity determinations,

recipients of Federal highway and

transit funds may not approve or adopt

regionally significant non-federal

projects in the absence of a conforming

transportation plan and TIP (see section

IV.L. of this 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, and project conformity

determinations; and non-federal projects

-which are not regionally significant or

which do not involve recipients of

Federal funds.

K. Fiscal Constraint

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 (which implement

ISTEA) may be 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, and references 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 of revenue. The financial plan

shall compare the estimated revenue

from existing and proposed funding

sources that can reasonably be expected

to be available for transportation uses,

and the estimated costs of constructing,

maintaining and operating the total

(existing plus planned) transportation

system over the period of the plan. The

estimated revenue by existing revenue

source (local, State, Federal, and

private) available for transportation

projects shall be determined and any

shortfalls identified. Proposed new

revenues and/or revenue sources to

cover shortfalls shall be identified,

including strategies for ensuring their

availability for proposed investments.

Existing and proposed revenues shall

cover all forecasted capital, operating,

and maintenance costs. Cost and

revenue projections shall be based on

data reflecting the existing situation and

historical trends. For nonattainment and

maintenance areas, the financial plan

shall address the specific financial

strategies required to ensure the

implementation of projects and

programs to reach air quality

compliance.

The metropolitan planning

regulations at 23 CFR 450 also require

the TIP to be financially constrained

and include a financial plan that

demonstrates which projects can be

implemented using current sources and

which projects are to be implemented

using proposed new sources (while the

existing transportation is being

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 of new funding

sources, strategies for ensuring their

availability shall be identified. In

developing the financial analysis, the

MPO shall take into account all projects

and strategies funded under title 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

of the TIP must be limited to those for

which funds are available or committed.

"Available" funds means funds

derived from an existing source of funds

dedicated to or historically used for

transportation purposes which the

financial plan (in the 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 for transportation

purposes, only those funds that the

Governor has control of may be

considered "committed" funds. In this

case, approval of the TIP by the

Governor will be considered a

commitment of funds. 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 of intent by the responsible

official or body having control of the

funds will constitute a commitment.

Where the use of State, local or private

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"

shall be taken to mean authorized and/

or appropriated funds the financial plan

shows to be available to the area. Where

the transportation plan or TIP period

extends beyond the current

authorization period for Federal

program funds, "available" funds may

include an extrapolation based on

current/past authorizations of Federal

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

HeinOnline -- 58 Fed. Reg. 62203 1993
62204 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

beyond that currently authorized and

targeted to the area should be treated as

a new source and Xnust be demonstrated

to be a "reasonably available new

source."

For periods beyond years 1 and 2 of

the TIP in nonattainment and

maintenance areas, for TIPs in other

areas, and for the transportation plan,

funding must be "reasonably available,"

but need not be currently available or

committed. Hence, new funding sources

may also be considered. New funding

sources are revenue sources that do not

currently exist or that require some

steps (legal, executive, legislative, etc.)

before a jurisdiction, 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 for ensuring 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 steps that will be taken to

ensure that the funds will be available

within the timeframe shown in the

financial plan. The plan of action 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 of the need for new

revenue sources and the consequences

of not providing them. Past experience

(including historical data) with

obtaining this type of funding, e.g.,

success in obtaining legislative and/or

voter approval for new 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 of support (and/or

opposition) for the 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 of specific

cases where new funding sources

should not generally be considered to be "reasonably available": (1) Past efforts

to enact new revenue sources have

generally not been successful; (2) the

extent of current support by the public,

elected officials, business community,

and/or special interests indicates

passage of a 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 will be secured.

Since the financial plans will be

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) for comment

prior to approval.

L. Non-federal Projects

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 for other

projects) do not require 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 all known

regionally significant non-federal

projects. The final rule retains these two

features but differs from the proposal as

described below.

1. Requirements For Adoption or

Approval of Projects 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 of the Clean Air Act

does not apply all of these 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 of Clean Air Act

Section 176(c)(2)(C). Section*

176(c)(2)(C) says explicitly that "a

transportation project may be adopted

or approved by a metropolitan planning

organization or any recipient of funds

designated under title 23 U.S.C. or the

Urban Mass Transportation Act * * *

only if it comes from a conforming

transportation plan and TIP," or (to

paraphrase) if a 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) of the

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 of title

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, or that 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 of Federal funds

make the proper determinations before

they adopt or approve regionally

significant non-federal projects.

However, failure of a 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

of a plan and TIP) would be a violation

of the SIP and of the 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 of EPA's rule and without

requiring conformity determinations on

such projects. This is because section

176(c)(1) of the Clean Air Act, which

defines conformity, requires conformity

HeinOnline -- 58 Fed. Reg. 62204 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62205

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 of Federal 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 if the 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 of assuming that

the amount of off-network travel is a

function of the 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 of funds. That is, if an 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 of this

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 of regionally 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 Air Act refers to

adoption or approval of projects, the

line separating tentative planning from

actual implementation of non-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 of a 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, if an

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 of public

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 of its 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 a known

project in the emissions modeling

because of the 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 not be simultaneously offset, and

projects could be irreversibly committed

before transportation planning

participants realized the need to offset

their impacts.

The final rule addresses these

situations by (1) making disclosure of

regionally significant non-federal

projects a requirement of the 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 of Federal funds

to determine that their regionally

significant non-federal projects satisfy

the requirements of section 176(c)(2)(C)

of the Clean Air Act 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 of the 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 of the SIP.

The final rule requires the conformity

SIP to establish a mechanism which

ensures that other recipients of Federal

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. If the 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, EPA believes

that the final rule addresses many of

these commenters' practical concerns.

Because the final rule prohibits the

implementation of regionally significant

non-federal projects until their

emissions impacts are accounted for in

the regional emissions analysis, the

integrity of the transportation planning

process is preserved. There is no

opportunity to escape or delay the

conformity implications of a project by

shifting its funding from Federal to nonfederal sources, and a formal

HeinOnline -- 58 Fed. Reg. 62205 1993
62206 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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 be considered at the

same time as the impacts of Federal

projects, and Federal projects (or nonfederal projects by 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 of a

conforming transportation plan and TIP,

project sponsors will not be able to

adopt or approve 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 other transportation projects. The final rule s approach is also

consistent with the comments EPA

received regarding the potential burden

of making conformity determinations for

non-federal projects. The final rule does

not impose any significant additional

substantive burden on MPOs or project

sponsors beyond that of the NPRM,

because the NPRM also required the

impacts of regionally significant nonfederal projects to be accounted for in

the regional emissions analysis of the

plan and TIP. DOT's proposed rule on

metropolitan planning (58 FR 12064,

March 2, 1993) requires the

transportation plan to include regionally

significant non-federal projects, and

requires the TIP to include for

informational purposes all regionally

significant projects to be funded with

non-federal funds.

V. Discussion of Comments

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)

of the Clean Air Act, which requires that

no activity may "cause or contribute to

any new violation of any standard in

any area, or increase the frequency or

severity of any existing violation of any

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 of experiencing violations of

ambient standards.

As described above, EPA will be

issuing in the near future a

supplemental notice of proposed

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 of NAAQS violations

in these areas.

2. Length of the Maintenance 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 of the

maintenance period to twenty years. "

unless the applicable implementation

plan specifies a longer maintenance

period. Because the maintenance plan

required by section 175A of the Clean

Air Act must address twenty years, EPA

believes that conformity determinations

are required for at least that time. If the

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 falling back 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 or TIP into the

statewide transportation plan or STIP

unless the metropolitan plan or TIP has

been found to conform. Because not all

areas of a 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 of conformity

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 of transportation, 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

HeinOnline -- 58 Fed. Reg. 62206 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62207

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 authority for these

activities vested in the MPO under

ISTEA. Although ISTEA emphasizes

intermodal planning, MPOs have only a

coordination responsibility. In general,

MPOs are not comprehensive

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 for dealing

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 in road

or bridge tolls (58 FR 3773). EPA invited

comment on what type of limited

application of conformity to these types

of actions might be appropriate and

received a substantial response from the

public on this issue.

The final rule does not consider

highway and transit operational actions

such as route, schedule, fare, or toll

changes to be a "transportation project"

subject to conformity. However, as

described in the NPRM, any changes of

this sort must be included in the

background modeling assumptions for

subsequent conformity determinations.

The final rule 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 of the latest planning

assumptions.

Although EPA acknowledges that

certain operational actions may be

significant, EPA was unable to identify

a defensible threshold above which

conformity determinations should be

required or triggered, nor a legal

rationale for requiring conformity

review of such activities. EPA believes

that it is not practical or appropriate for

all operational actions to be found to

conform before they are implemented,

or for these 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 local needs. Requiring

conformity for these types of actions

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 are made on

entire projects as defined by NEPA, not

stages of them. NEPA termini must be

included In the regional analysis and

project-level analysis before the project

may be found- to conform. If only some

of the 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 must be addressed

separately for different project phases if

there is significant delay between them,

in order to prevent violations being

caused for a period of years 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) of the 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 funded by DOT.

MPOs do not necessarily adopt or

approve projects, and are not required

by the Clean Air Act to make projectlevel conformity determinations unless

they perform a project-level adoption or

approval role. Project-level conformity

determinations are clearly necessary,

however, in order for DOT to fund a

project. EPA anticipates that if the MPO

does not adopt or approve a project, the

project sponsor (e.g., the State DOT) will

make a project-level conformity

determination of its own, or will at least

perform the required analysis and

recommend an affirmative

determination, in order to 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 as part of the NEPA

process.

8. Projects Which Are Not From 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 of a nonattainment

,or Clean Air Act section 175A

maintenance plan area that is

dominated by a metropolitan area

("donut areas").

The NPRM and the final rule require

the conformity SIP revision to include

in its interagency consultation

procedures a process involving the MPO

and State DOT for cooperative planning

and analysis for determining conformity

of projects in donut areas. Because an

MPO must consider in its regional

analysis of transportation plans and

TIPs all highway and transit projects in

the nonattainment or maintenance area,

the MPO and State DOT may choose to

actually include donut area projects in

the transportation plan and TIP. In such

cases, no further regional analysis of

such projects would be necessary.

If projects in donut areas are not

specifically included in the

transportation plan and TIP, the projectlevel conformity determination would

have to document that such projects

were included in the original regional

emissions-analysis used to demonstrate

conformity of the existing transportation

plan and TIP. Another option is to perform a complete reanalysis in which

the project is hypothetically assumed to

be added to the transportation plan and

TIP, and the combination is tested to see

if it would satisfy all the conformity

criteria for transportation plans andTIPs. If it 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. Of the three options, EPA

HeinOnline -- 58 Fed. Reg. 62207 1993
62208 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

believes that all parties involved will be

better served by pursuing the first or

second option.

In isolated rural nonattainment areas

(and other areas which do not contain

a metropolitan planning area and which

are not part of a nonattainment or

maintenance Metropolitan Statistical

Area or Consolidated Metropolitan

Statistical Area) there is no metropolitan

transportation plan or TIP which

requires a regional emissions analysis.

The final rule provides that projects in

such areas may satisfy the regional

emissions conformity test if the projects

in the nonattainment or maintenance

area which are funded or approved by

FHWA or FTA are grouped together and

analyzed in a regional emissions

analysis, together with all other

regionally significant projects expected

in the nonattainment or maintenance

area. Projects need not be 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 for identifying 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 may be considered to have been

included in a regional emissions

analysis of the transportation plan or

TIP if they are grouped with Federal

projects in the nonattainment or

maintenance area in the statewide plan

and STIP for the purposes of a regional

emissions analysis. Interim period. EPA proposed that

during the interim period, projects not

from a conforming transportation plan

or TIP be 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 in a regional

emissions analysis of the projects

together with those of the conforming

plan and TIP in order to determine

whether the plan and TIP would still

conform to the SIP. This opportunity is

provided for all projects without

limitation in section 176(c}[2)(D) of the

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) of an emissions

budget.

Section 176(c)(3) of the Clean Air Act

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 of section 176(c)(3)

are the exclusive method of determining

conformity during the interim period as

the term is used in this rule and by the

commenters. Section 176(c)(3) provides

that during the interim period,

conformity of projects "will be

demonstrated" if certain tests are met. It

does not say that conformity may only

be demonstrated through those tests.

EPA concludes that while projects

may take advantage of the 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 rule the 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 for the 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 if a

metropolitan planning area includes

multiple nonattainment areas, or if a

nonattainment area includes multiple

MPOs. In general, interagency

relationships and responsibilities will

be established by the conformity SIP

revision. If a metropolitan 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 may not be combined or

reallocated. Build/no-build tests must

be applied separately in each

nonattainment area. Where a

nonattainment area includes multiple

MPOs, the control strategy SIP may

either allocate emissions budgets to

each metropolitan planning area, or the

MPOs must act together to make a

conformity determination for the

nonattainment area.

EPA also expects there to be

agreements among agencies on how to

make conformity determinations for

multistate nonattainment areas.

B. Applicable Implementation Plans

The NPRM defined the "applicable

implementation plan" to which

conformity must be demonstrated as a

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 not yet approved. These

commenters argued that it is most

appropriate to determine conformity

with the SIP submission, which

represents the most recent SIP control

strategies, rather than the approved SIP.

The final rule retains the NPRM's

definition of "applicable

implementation plan." EPA believes

that it does not have the authority to

require conformity to an

implementation plan which has not

been approved by EPA and therefore

does not have the force of Federal law.

(During the transitional period, EPA

requires use of the submitted SIP to

determine contribution to annual

emission reductions, but does not

consider the submitted SIP to be the "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

for conformity purposes, TCMs are the

relevant element of an old approved

SIP. Areas with outdated SIPs have been

required to demonstrate timely

implementation of TCMs in the SIP at

least since the June 1991 EPA/DOT

interim conformity guidance. At that

time, EPA urged areas to revise their

SIPs to remove 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 of that SIP which

areas are concerned would prohibit

conformity determinations must be

revised through the SIP process. EPA

will strive to expedite its action on such

SIP revisions.

C. Conformity SIP Revisions

EPA requested comment in the

preamble to the NPRM regarding the

legal form of the 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 of the State

conformity procedures depends upon

the requirements of local law, so long as

the selected form complies with all

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62208 1993
Federat Register A Vol. 58, No. 225 f Wednesday, November 24, 1993 # Rules and Regulations 6Zi9

Cleam Air Act requirements for

adoptia, submittal to EPA, and

implementation of Sips.

Clen ir ctsection 11O(al(ZXA)

requires that all SIP measures be

enforceable, and section 110(aX2)(E)

requires that States have adequate

authority under local law to implement

the SIP. Read together, these provisions

require that the State have the authority

under State low to compel compliance

with the SIP conformity procedures by

the persons or entities to which they

apply, in whatever form the procedures

may take.

For the most part, EPA beieves 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. or the Federal Transit

Act, and DOT to comply with the

requirements of Slate 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 a matter or

State law, the State has adequate

authority to compel compliance with

the requirements of the State conformity

procedures.

Whatever the form, EPA expects the

State procedures to mirror portions of

the text of EPA's rule 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 to make 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, if a State wishes to

apply more strinpnt conkrmity rules

for the purpose of attaining air quality,

it may do so only if the same

requirements are imposed on nonfederal as well as Federal actions.

Di ffing State conformity rules may not

cause a more significant or unusual

obstacle to Federal 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

simihr actions whether the sponsoring

agency is a Federal or non-federal

entity; non-federal entities include State

and loca4 agencies and private sponsms.

If a 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 of employers with more

than 500 emphlees require conformity

determinations, and the Federal

government is the only employer, of this

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. For a f 01 discussion of the

issue of State authority to impose more

stringent conformity requirements, see

the preamble to the general conformity

final rule ("Determining Conformity of

General Federal Actions to State or

Federal Implementation Plans!).

Some commenters requested

clarification on whetherattainment

areas, which are not subject to the final

rule, are required to submit conformity

SIP revisions within 12 months of the

promulgation of the final rule. The final

rule does not require attainment areas to

submit conformity SP revisions.

However, as indicated in the preamble

section "Discussion of Majer Issues,"

EPA intends to issue a supplementary

notice of proposed rulemaking which

would, propose criteria and procedures

to apply conformity to attainment areas.

EPA intends to requite conformity SIP

revisions for attainment mreas within 12

months following promulgation of a

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 to nonattairment.

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 to require 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

final actiow on comformity

determinations, and to require

additional opportunity for public

comment if the transportation phn or

TIP to be submitted to DOT is

significamty different from the one

made available for publiccomment.

EPA received substantial pubKc

comment on the issue of public

participation. Ahhough some

commenter supported the NPRM's

approach, some commenter betieved

that the conformity nle should

establish minimum pubtic participation

requirements. These cmnmenters

suggested a range of minimum

requirements, including comment

periods, public hearings, and analysis of

significant comments

EPA believes that to faciitate

cooperative air quality¢transpovtakion

planning, the pmlic parkicipation

requirements in the comformity rule

must be consistent with the public

participation procedures in. the

transportation planning process.

Furthermore, EPA believes that DOT's

metropolitan planning regulatioans are

the appropriate mechanism for pubaic

participation requirements because they

address the development of the

transportation plan md TIP themselves,

not just 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, and supports early and

continuing public involvement in

developing transportation plans and

TIPs. The regulations require a

minimum public comment period of 45

days before the pubhc involvement

process is initially adopted or revised.

In serious and above nonattainment

areas, the regulations require a public

comment period of at least 3Q days

before approval of plans, TIPs, and

major amendments. In nonattainment

area transportation management areas

(TMAsl, at least one formal public

meeting must be herd annually on the

development of the transportation plan

and the TIP. The regulations also

require a summary and analysis of

comments and additional opportunities

for comment after significant changes,

as proposed by the conformity NPRM.

Public involvement processes must be

periodically reviewed by the MPO for

effectiveness, and DOT 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

of the NEPA process. EPA and DOT

expect that project-level conformity

determinations will be made as part of

the NEPA process.

Because DOw s metropolitan planning

regulations require MPOs to establish

and publish their public participation

procedures, and the conformity rule

HeinOnline -- 58 Fed. Reg. 62209 1993
62210 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

requires that these procedures be

followed before conformity may be

determined, the conformity rule does

not require public participation

procedures to be part of the applicable

implementation plan.

E. Plan Content

1. Plan Specificity

The NPRM proposed to require

transportation plans adopted after

January 1, 1995 in serious and above

ozone and CO nonattainment areas to

specifically describe the transportation

system in certain horizon years; in

sufficient detail to use a transportation

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 prior to 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

of long-range planning, and agrees that

the long-range transportation plan

should be a flexible planning document

which does not foreclose consideration

of alternatives. 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 a transportation

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 of the

network, and significant alternatives to

the use of single-occupant vehicles. EPA

recognizes that detailed descriptions of

projects in the later years of the

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 of the

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 if they

are not yet in the TIP because they do

not yet need to be started. Where a

specific plan is not required by this rule,

one may be otherwise needed to meet

the requirements of ISTEA. 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 the TIP, any

other projects specifically included in

the transportation plan, and regionally

significant non-federal projects.

2. Timeframe of the 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 Plan and TIP

Conformity With the National

Environmental Policy 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 of the analysis,

either one particular alternative version

of the project or the no-build alternative

for the corridor in which the major

investment is located would be

evaluated as part of the plan and TIP

conformity analysis. This corridor/

subarea analysis of alternatives serves as

input to the draft NEPA document.

No Federal approval action is taken

on the transportation plan or TIP, 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 of funds, including State, local,

and private sources, it is likely that

some of the projects included will never

be proposed for Federal funding. In

view of this, it is not 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 of this rulemaking.

G. Latest Planning 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

Air Act 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 of the 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 be met.

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

HeinOnline -- 58 Fed. Reg. 62210 1993
Federal Register / Vol. 58, No. 225 f Wednesday, November 24.

The final rule does require that

ambient temperatures be consistent with

those used in the SIP, and allows other

factors assumed in the SIP, such as the

fraction of travel in a hot stabilized

engine mode, to be modified in a

conformity determination only under

certain conditions.

H. Latest E~nssions Model

EPA proposed to require a new

version of the motor vehicle emissions

model to be used in any conformity

analysis begun three months after its

release, unless EPA and DOT announce

an extension of the grace period in the

Federal Registe.

EPA received comments stating that

the grace period was both too long and

too short, and requesting clarification on

how the grace period would be

extended. EPA and DOT will consider

extending the grace period if the effects

of the new emissions model are so

significant that previous SIP

demonstrations of what emission levels

are consistent with attainment would be

substantially affecud. In such cases,

States should have an opportunity to

revise their SiPs before UPOs must use

the model's new emission factors. EPA

encourages all agecies to inform EPA

of the impacts of now emissions models

in their areas, and EPA may pause to

seek such input befor determining the

length of the grace period.

EPA is concerned that the proposal

would have considered analyses begun

before a new model is released or during

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 of March 26, 1993,

Including "MOBIE Information Sheet

#2: Estimating Idle Emission Factors

Using MOBILE5," is hereby announced

by EPA to be the latest motor vehicle

emissions model outside California.

There will be a one-year grace period

prior to required use of this model for

CO hot-spot or regional analyses for

conformity determinations, beginning

November 24, 1993. Future r isions

and their grace periods will be

announced in the Federal Register. EPA

also hereby announces that in

California, EMFAC7F is the latest motor

vehicle emissions model, and the threemonth grace period for use of this model

begins November 24, 1993.

L TCMs ,

The NPRM proposed to requie timely

implementation of those TC]U in the

SIP which arel ible for title 23 U.&C.

or Federal Transit Act funding, Some.

commentrs stated that all TCM& should

meet the timely implementation test.

regardless of their source of fundin g

The final rule retains the provisions of

the NPRMJ

Clean Air Act section 176(c)(21(B)

requires TPs to provide for timely

implementation of TCMs. but does not

define TCMs. The statute is therefore

ambiguous with respect to which rCMs

must be implemented, and EPA may

take any reasonable interpreta tm of the

definition of TCMs. Chevron, v. NRDC,

467 U.S. 837 L1984). Since plans and

TIPs can at the most "*provide for" only

those pte*cts which re eligible for

Federal funding, it is reasonable to

define those TC s required to be

implemented by Clean Air Act section

176(c](2)B) to be only those SIP TCMs

that ae eligible for Federal funding.

]. Regional Emissions Analysis

1. Regionally Significant Projects

The NPRM defined "regionally

significant" to mean a facility with an

arterial or higher functional

classification, plus any other facility

that serves regional travel needs (such

as access to and from the area outside

of the region; to major activity centers

in the region; or to transportation

terminals) and would 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 defined by 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 similar to 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 in the definition

of "regionally significant."

In response to comment that

"arterial" is not a DOT functional

classification, the final 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 be modeled an a network

model could involve a significant

change in current modeling practice.

Therefore, the final rule makes the

determination ofregionally significant

projects a topic of interagency

consultation, and allows the definition

of regionally significant to be expanded

through this process. The interagency

consultation process must specifically

address which minor arterials are also

regionally significant.

Some commenters pointed out that

the NPRM's definition of "regionally

significant" relied on highway

terminology, and it Was not clear that

transit projects were also covered by the

definition. Therefore, the final rule also

defines any fixed guideway transit

system or extension that offers an

alternative to regional highway travel to

be regionally significant.

2. Prects Included in the Reginal

-Emissions Analysis

EPA proposed criteria which required

regional emissions analysis of projects

in the transportation plan and TIP and

all other regionally significant projects

expected in the nonattainment or

maintenance area. Some commenters

expressed concern about projects im the

transportation plan and TIP which

cannot normally be modeled with a

transportation network demand model.

The final rule clarifies that emissions

from projects which are not regionally

significant, but which have or affect

vehicle travel, may be estimated in

accordance with reasonable professional

practice. For example, the regional

emissions analysis may assume that

VMT on local streets not represented in

the network model is a certain

percentage of network VMT, without

explicitly considering the new local

streets. In addition to projects that are

not regionally significant, the benefits of

TCfs that cannot be analyzed through

the modeling process may be estimated

in accordance with reasonable

professional practice. EPA proposed that the regional

emissions analysis could not include for

emissions reduction credit any TC s

which have been delayed beyond the

schedule in the SIP, until

implementation has been assured. In

response to public comment, the final

rule clarifies that if a TCM has been

partially Implemented 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

HeinOnline -- 58 Fed. Reg. 62211 1993
62212 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

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 if the program

has been adopted by a State or local

government, if an opt-in to a Federallyenforced program has been approved by

EPA, if EPA has promulgated the

program (if the control program is a

Federal responsibility, such as tailpipe

standards), or if the 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 not implement the program. The build/no-build test may assume

the above programs, but the same

assumptions must be 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 that EPA should

commit to review the attributes which

were not specifically required. EPA

intends to continue to review progress

in transportation modeling, and the

public can also petition for future

rulemaking.

Some commenters expressed concern

that the cumulative effect of nonregionally significant projects is not

accounted for in the regional emissions

analysis. The NPRM and the final rule

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 on non-regionally

significant facilities to be some

percentage of network VMT. The rule

requires documentation of all key

assumptions used in emissions

analyses, so there will be opportunity

for public review of how 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

of the 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 in PM- 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 and programs

themselves are isolated.

K. Hot-spot Criteria and Analysis

EPA proposed to require projects to

demonstrate that they eliminate or

reduce the severity and number of

localized CO violations 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 or reducing

CO violations in the area substantially

affected by the project. If there are no

localized CO violations and would not

be any in the project area, the project

satisfies this criterion.

Some commenters also requested

clarification on the hot-spot criteria.

EPA intends that the hot-spot analysis

compare concentrations with and

without the project based on modeling

of conditions 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

of background concentrations may take

into account the effectiveness of

anticipated control measures in the SIP

if they are already enforceable and

creditable in the SIP.

EPA proposed to allow the hot-spot

criteria to be satisfied without

quantitative hot-spot analysis if a

qualitative demonstration can be made

based on consideration of local 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 of all

intersections that are Level-of-Service

(LOS) D, E, or F or that will change to

LOS D, E, or F because of increased

traffic volumes related to a new project

in the vicinity. EPA's guidance also

requires modeling of the top three

intersections in the area based on

highest traffic volume and the top three

intersections based on the worst LOS.

Therefore, the final rule requires that

projects involving or affecting any such

intersections must be quantitatively

modeled using that EPA guidance. The

final rule would still allow qualitative

analysis for projects 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 sites within 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 shall be

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 of diesel

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 of a violation of the

PM-10 standard. Conformity

determinations on bus purchases (for

replacements or minor expansions of

the existing fleet) would not have to

consider potential PM-10 hot-spot

violations, as discussed in the preamble

to the NPRM, because the incremental

improvement in emissions spread over

the service area of a metropolitan transit

operator is considered to be a de

minimis impact on air quality.

Moreover, FrA has no control over how

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62212 1993
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 of this guidance.

Also, FTA plans to issue guidance

shortly on PM-10 hot-spot analysis for

several common types of transit

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 has been

added to the final rule. EPA continues

to believe that a seemingly new

violation may be considered to be a

relocation and reduction of an existing

violation only if it were in the area

substantially affected by the project and

if the predicted design value for the "new" site would be less than the

design value at the "old" site without

the project-that is, if there would be a

net air quality benefit.

Although no comment was received

on the subject, problems may arise with

respect to projects which dispersion

modeling predicts to have a range of air

quality effects in the "area substantially

affected by the project." A project 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 of changed traffic patterns is

a question EPA will seek to address in

this post-rule guidance. Interested

parties are invited to provide their

views to EPA for consideration.

L. Exempt Projects

EPA proposed a list of projects 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 of comments 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 or historic highway

programs, landscaping and other scenic

beautification, historic preservation,

rehabilitation and operation of historic

transportation buildings, structures or

facilities (including historic railroad

facilities and canals), preservation of

abandoned railway corridors (including

the conversion and use thereof for

pedestrian or bicycle trails), control and

removal of outdoor 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, or terrorist 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 as planning and technical studies,

grants for training and research

programs, planning activities conducted

pursuant to titles 23 and 49 U.S.C., and

Federal-aid systems revisions. These

activities do not contribute to emissions,

and they do not fall under the definition

of construction 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 of buses and purchase of

new buses to replace existing vehicles

or for minor expansions of the 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 of ridesharing 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 of ridesharing and

vanpooling promotion activities at

current levels."

Some commenters asserted that

operating assistance to transit agencies

should not be exempt, EPA believes 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 of revenue at the State and local

level. To the extent that the local

cooperative planning process influences

the level of operating 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 of commenters proposed

exempting other types of projects 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 or project

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 if the effects of these

projects cannot be discerned through

traditional regional travel demand

modeling, other accepted methods of

quantifying their effects are encouraged.

Some commenters requested

clarification of projects 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 of parcels 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

HeinOnline -- 58 Fed. Reg. 62213 1993
62214 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

transportation alternatives, or are

acquired to alleviate particular hardship

to a property owner at his or her

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

or transit location has been selected,

held a public hearing, or provided an

opportunity for a public hearing.

VI. Environmental and Health Benefits

This rule will help ensure that the

implementation plan achieves its goal 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 of this rule

involves the 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 of this rule on MPOs may

vary widely depending on the pollutant

for which an area is in nonattainment,

the classification of the nonattainment

area, the population of the area, and the

technical capabilities already developed

in the area.

A DOT survey in September 1992 of

MPOs in 98 ozone nonattainment areas

indicated that during Phase I of the

interim period, most MPOs are spending

less than $50,000 for a conformity

determination on the transportation

plan and TIP. Of the 68 MPOs

responding, 76% are spending less than

$50,000, 21 % are spending between

$50,001 and $100,000, and 3% are

spending between $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 a transportation plan

or TIP is adopted or amended. 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 of conformity

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 or the motor vehicle

emissions budget. Transportation projects also require

conformity determinations. In ozone

and NO 2 nonattainment areas, the

conformity requirements are satisfied

provided the project is included in a

current, conforming transportation plan

and TIP. If the project is not included

in the transportation 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. If it is assumed that the ozone areas

surveyed by DOT in September 1992 are

representative of all nonattainment

areas, the estimated total annual

conformity costs for the nation'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 be used in the preparation of the

information collection request (see VIII.

B. Reporting and Recordkeeping

Requirements) subsequent to the

publication of this rule.

These estimates do not necessarily

reflect the costs which will result from

this final rule. On one hand, these may

be overestimates of the 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 the other hand, these estimates do

not reflect the more specific

requirements of this rule and may

therefore underestimate the cost of

determinations in the control 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 or indirectly

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 of MPOs to review and

upgrade their analysis capabilities to

reflect the most recent understanding 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 of modeling

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 order to accommodate the varying

technical capabilities of MPOs. In

addition, by designating projects which

are exempt from conformity

determinations or regional analyses,

EPA is allowing project sponsors to

conserve their analysis resources.

Finally, EPA has attempted to minimize

the frequency of conformity

redetermination by requiring periodic

redetermination only every three years

(which is the longest period allowed by

the Clean Air Act), by limiting the

number of triggers for redetermination,

and by allowing grace periods before the

use of new emissions models and

following an area's reclassification.

VIII. Administrative Requirements

A. Administrative Designation

Executive Order 12866

Under Executive Order 12866, (58 FR

51735 (October 4, 1493)) the Agency

HeinOnline -- 58 Fed. Reg. 62214 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

must determine whether the regulatory

action is "significant" and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may: (1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

* or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel regal or policy issues

arising out of legal mandates, the

President's priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

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 will be documented

in the public record.

B. Reporting and Recordkeeping

Requirements

This rule does not contain any

information collection requirements

from EPA which require approval by the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act of 1980, 44 U.S.C. 3501 et seq. DOT

will be preparing an information

collection request subsequent to the

publication of this rule.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980

requires federal agencies to identify

potentially adverse impacts of federal

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 number of small

entities. This regulation will affect

Federal agencies and metropolitan

planning organizations, which by

definition are designated only for

metropolitan areas with a population of

at least 50,000.

Recipients of title 23 U.S.C. or Federal

Transit Act funds must determine that

their highway and transit projects are

included in a conforming transportation

* plan and TIP, or a regional 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 CFR part 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 of the Regulatory Flexibility Act, 5

U.S.C. 601 et seq., I certify that this

regulation does not have a significant

impact on a substantial number of small

entities.

List of Subjects

40 CFR Part 51

Environmental protection,

Administrative practice and procedure,

Air pollution control, Carbon monoxide,

Intergovernmental relations, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides, Volatile

organic compounds.

40 CFR Part 93

Administrative practice and

procedure, Air pollution control, Carbon

monoxide, Intergovernmental relations,

Lead, Ozone.

Dated: November 15, 1993.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the 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 T to read as follows:

Subpart T-Conformity to State or Federal

Implementation Plans of Transportation

Plans, Programs, and Projects Developed,

Funded or Approved Under Title 23 U.S.C.

or the Federal Transit Act

Sec.

51.390 Purpose.

51.392 Definitions.

51.394 Applicability.

51.396 Implementation plan revision.

51.398 Priority.

51.400 Frequency of conformity

determinations.

51.402 Consultation.

51.404 Content of transportation plans.

51.406 Relationship of transportation plan

and TIP conformity with the NEPA

process.

51.408 Fiscal constraints for transportation

plans and TIPs.

51.410 Criteria and procedures for

determining conformity of transportation

plans, programs, and projects: General.

51.412 Criteria and procedures: Latest

planning assumptions.

51.414 Criteria and procedures: Latest

emissions model.

51.416 Criteria and procedures:

Consultation.

51.418 Criteria and procedures: Timely

implementation of TCMs.

51.420 Criteria and procedures: Currently

conforming transportation plan and TIP.

51.422 Criteria and procedures: Projects

from a plan and TIP.

51.424 Criteria and procedures: Localized

CO and PM1o violations (hot spots).

51.426 Criteria and procedures: Compliance -ith PMto control measures.

51.428 Criteria and procedures: Motor

vehicle emissions budget (transportation

plan).

51)430 Criteria and procedures: Motor

vehicle emissions budget (TIP).

51.432 Criteria and procedures: Motor

vehicle emissions budget (project not

from a plan and TIP).

51.434 Criteria and procedures: Localized

CO violations (hot spots) in the interim

period.

51.436 Criteria and procedures: Interim

period reductions in ozone and CO areas (transportation plan).

51.438 Criteria and procedures: Interim

period reductions in ozozre and CO areas

(TIP).

51.440 Criteria and procedures: 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 NO2

areas (transportation plan).

51.444 Criteria and procedures: Interim

period reductions for PMo and NO2

areas (TIP).

51.446 Criteria and procedures: Interim

period reductions for PMio and NO 2 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 of projects by other recipients

of funds designated under title 23 U.S.C. or the Federal Transit Act.

51.452 Procedures for determining regional

transportation-related emissions.

1993 / Rules and Regulations 62215

HeinOnline -- 58 Fed. Reg. 62215 1993
62216Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations

Sec.

51.454 Procedures for determining localized

CO and PM1o concentrations (hot-spot

analysis).

51.456 Using the motor vehicle emissions

budget in the applicable implementation

plan (or implementation plan

submission).

51.458 Enforceability of design concept and

scope and project-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 Title 23 U.S.C. or the

Federal Transit Act

§51.390 Purpose.

The purpose of this subpart is to

implement section 176(c) of the Clean

Air Act (CAA), as amended (42 U.S.C.

7401 et seq.), and the related

requirements of 23 U.S.C. 109(j), with

respect to the conformity of

transportation plans, programs, and

projects which are developed, funded,

or approved by the United States

Department of Transportation (DOT),

and by metropolitan planning

organizations (MPOs) or other recipients

of funds under title 23 U.S.C. or the

Federal Transit Act (49 U.S.C. 1601 et

seq.). This subpart sets forth policy,

criteria, and procedures for

demonstrating and assuring conformity

of such activities to an applicable

implementation plan developed

pursuant to section 110 and Part D of

the CAA.

§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 of priority.

Applicable implementation plan is

defined in section 302(q) of the CAA

and means the portion (or portions) of

the implementation plan, or most recent

revision thereof, which has been

approved under section 110, or

promulgated under section 110(c), or

promulgated or approved pursuant to

regulations promulgated under section

301(d) and which implements the

relevant requirements of the CAA.

CAA means the Clean Air Act, as

amended.

Cause or contribute to a new violation

for a project means:

(1) To cause or contribute to a new violation of a standard in the area

substantially affected by the project or

over a region which would otherwise

not be in violation of the standard

during the future period in question, if

the project were not implemented; or

(2) To contribute to a new violation in

a manner that would increase the

frequency or severity of a new violation

of a standard in such area.

Control strategy implementation plan

revision is the applicable

implementation plan which contains

specific strategies for controlling the

emissions of and reducing ambient

levels of pollutants in order to satisfy

CAA requirements for demonstrations of

reasonable further progress and

attainment (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).

Control strategy period with respect to

particulate matter less than 10 microns

in diameter {PMo), carbon monoxide

(CO), nitrogen dioxide (NO 2), and/or

ozone precursors (volatile organic

compounds and oxides of nitrogen),

means that period of time after EPA

approves control strategy

implementation plan revisions

containing strategies for controlling

PM10, NO2, CO, and/or ozone, as

appropriate. This period ends when a

State submits and EPA approves a

request under section 107(d) of the CAA

for redesignation to an attainment area.

Design concept 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. Design scope means the design

aspects which will affect the proposed

facility's impact on regional emissions,

usually as they relate to vehicle or

person carrying capacity and control,

e.g., number of lanes or tracks to be

constructed or added, length of project,

signalization, access control including

approximate number and location of

interchanges, preferential treatment for

high-occupancy vehicles, etc.

DOT means the United States

Department of Transportation.

EPA means the Environmental

Protection Agency. FHWA means the Federal Highway

Administration of DOT.

FHWA/FTA project, for the purpose of

this subpart, is any highway or transit

project which is proposed to receive

funding assistance and approval

through the Federal-Aid Highway

program or the Federal mass transit

program, or requires Federal Highway

Administration (FHWA) or Federal

Transit Administration (FTA) approval

for some aspect of the project, such as

connection to an interstate highway or

deviation from applicable design

standards on the interstate system.

FTA means the Federal Transit

Administration of DOT.

Forecast period with respect to a

transportation plan is the period

covered by the transportation plan

pursuant to 23 CFR part 450.

Highway project is an undertaking to

implement or modify a highway facility

or highway-related program. Such an

undertaking consists of all required

phases necessary for implementation.

For analytical purposes, it must be

defined sufficiently to:

(1) Connect logical termini and be of

sufficient length to address

environmental matters on a broad scope;

(2) Have independent utility or

significance, i.e., be usable and be a

reasonable expenditure even if no

additional transportation improvements

in the area are made; and

(3) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Horizon year is a year for which the

transportation-plan describes the

envisioned transportation system

according to § 51.404.

Hot-spot analysis is an estimation of

likely future localized CO and PM1o

pollutant concentrations and a

comparison of those concentrations to

the national ambient air quality

standards. Pollutant concentrations to

be estimated should be based on the

total emissions burden which may

result from the implementation of a

single, specific project, summed

together with future background

concentrations (which can be estimated

using the ratio of future to current traffic

multiplied by the ratio of future 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 or maintenance

area, including, for example, congested

roadway intersections and highways or

transit terminals, and uses an air quality

dispersion model to determine the

effects of emissions on air quality.

Incomplete data area means any

ozone nonattainment area which EPA

has classified, in 40 CFR part 81, as an

incomplete data area.

Increase the frequency or severity

means to cause a location or region to

exceed a standard more often or to cause

HeinOnline -- 58 Fed. Reg. 62216 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 1 Rules and Regulations 62217

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 the Intermodal Surface

Transportation Efficiency Act of 1991.

Maintenance area means any

geographic region of the United States

previously designated nonattainment

pursuant to the CAA Amendments of

1990 and subsequently redesignated to

attainment subject to the requirement to

develop a maintenance plan under

section 175A of the CAA, as amended.

Maintenance period with respect to a

pollutant or pollutant precursor means

that period of time beginning when a

State submits and EPA approves a

request under section 107(d) of the 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 20 years.

Metropolitan planning organization

(MPO) is that organization designated as

being responsible, together with the

State, for conducting the continuing,

cooperative, and comprehensive

planning process under 23 U.S.C. 134

and 49 U.S.C. 1607. It is the forum for

cooperative transportation decisionmaking.

Milestone has the meaning given in

section 182igl)( and section 189(c) of

the CAA. A milestone consists of an

emissions level and the date on which

it is required to be achieved.

Motor vehicle emissions budget is that

portion of the total allowable emissions

defined in a revision to the applicable

implementation plan (or in an

implementation plan revision which

was endorsed by the Governor or his or

her designee, subject to a public

hearing, and submitted to EPA, but not

yet approved by EPA) for a certain date

for the puipose of meeting reasonable

further progress milestones or

attainment or maintenance *

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 a motor vehicle emissions

budget for oxides of nitrogen (NO.) for

a reasonable further progress milestone

year if the applicable implementation

plan demonstrates that this NO. budget

will be achieved with measures in the

implementation plan (as an

implementation plan must do for VOC

milestone requirements). The applicable

implementation plan for an ozone

nonattainment area includes a NOx

budget if NOx reductions are being

substituted for reductions in volatile

organic compounds in milestone years

required for reasonable further progress.

National ambient air quality

standards (NAAQS) are those standards

established pursuant to section 109 of

the CAA.

NEPA means the National

Environmental Policy Act of 1969, as

amended (42 U.S.C. 4321 et seq).

NEPA process completion, for the

purposes of this subpart, with respect to

FHWA or FTA, means the point at

which there is a specific action to make

a determination that a project is

categorically excluded, to make a

Finding of No Significant Impact, or to

issue a record of decision on a Final

Environmental Impact Statement under

NEPA.

Nonattainment area means any

geographic region of the United States

which has been designated as

nonattainment under § 107 of the CAA

for any pollutant for which a national

ambient air quality standard exists.

Not classified area means any carbon

monoxide nonattainment area which

EPA has -not classified as either

moderate or serious.

Phase II of the interim period with

respect to a pollutant or pollutant

precursor means that period of time

after the effective date of this rule,

lasting until the earlier of the following: (1) Submission toEPA of the relevant

control strategy implementation plan

revisions which have been endorsed by

the Governor (or his or her designee)

and have been subject to a public

hearing, or

(2) The date that the Clean Air Act

requires relevant control strategy

implementation plans to be submitted to

EPA, provided EPA has notified the

State, MPO, and DOT of the State's

failure to submit any such plans. The

precise end of Phase H of the interim

period is defined in § 51.448.

Project means a highway project or

transit project.

Recipient offunds designated under

title 23 U.S.C. or the Federal Transit 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.

Regionally significant project means a

transportation project (other than an

exempt protect) that is on a facility

which serves regional transportation

needs (such as access to and from the

area outside of the region, major activity

centers in the region, major planned

developments such as new retail malls,

sports complexes, etc., or transportation

terminals as well as most terminals

themselves) and would normally be

included in the modeling of a

metropolitan area's transportation

network, including at a minimum all

principal arterial highways and all fixed

guideway transit facilities that offer an

alternative to regional highway travel.

Rural transport ozone nonattainment area means an ozQne nonattainment

area that does not include, and is not

adjacent to, any part of a Metropolitan

Statistical Area or, where one exists, a

Consolidated Metropolitan Statistical

Area (as defined by the United States

Bureau of the 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 area means any ozone

nonattainment area which EPA has

classified as submarginal in 40 CFR part

81.

Transit is mass transportation by bus,'

rail, or other conveyance which

provides general orspecial service to

the public on a regular and continuing

basis. It does not include school buses

or charter or sightseeing services.

Transit project is an undertaking to

implement or modify a transit facility or

transit-related program; purchase transit

vehicles or equipment; or provide

financial assistance for transit

operations. It does not include actions

that are solely within the jurisdiction of

local transit agencies, such as changes

in routes, schedules, or fares. It may

consist of several phases. For analytical

purposes, it must be defined inclusively

enough to: (1) Connect logical termini and be of

sufficient length to address

environmental matters on a broad scope; (2) Have independent utility or

independent significance, i.e., be a

reasonable expenditure even if no

additional transportation improvements

in the area are made; and

13) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Transitional area means 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 of time which begins after

submission to EPA of the relevant

Federal Register I Vol. 58, No. 225 / Wednesday, November 24., 1993 / Rules and Regulations 62217

HeinOnline -- 58 Fed. Reg. 62217 1993
62218 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

control strategy implementation plan

which has been endorsed by the

Governor (or his or her designee) and

has been subject to a public hearing.

The transitional period lasts until EPA

takes final approval or disapproval

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.

Transportation control measure

(TCM) is any measure that is specifically

identified and committed to in the

applicable implementation plan that is

either one of the types listed in § 108 of

the CAA, or any other measure for the

purpose of reducing emissions or

concentrations of air pollutants from

transportation sources by reducing

vehicle use or changing traffic flow or

congestion conditions. Notwithstanding

the above, vehicle technology-based,

fuel-based, and maintenance-based

measures which control the emissions

from vehicles under fixed traffic

conditions are not TCMs for the

purposes of this subpart.

Transportation improvement program

(TIP) means a staged, multiyear,

intermodal program of transportation

projects covering a metropolitan

planning area which is consistent with

the metropolitan transportation plan,

and developed pursuant to 23 CFR part

450.

Transportation plan means the

official intermodal metropolitan

transportation plan that is developed

through the metropolitan planning

process for the metropolitan planning

area, developed pursuant to 23 CFR part

450.

. Transportation project is a highway project or a transit project.

§51.394 Applicability.

(a) Action applicability. (1) Except as

provided for in paragraph (c) of this

section or § 51.460, conformity

determinations are required for:

(i) The adoption, acceptance, approval

or support of transportation plans

developed pursuant to 23 CFR part 450

or 49 CFR part 613 by an MPO or DOT;

(ii) The adoption, acceptance,

approval or support of TIPs developed

pursuant to 23 CFR part 450 or 49 CFR

part 613 by an MPO or DOT; and

(iii) The approval, funding, or

implementation of FHWA/FTA projects.

(2) Conformity determinations are not

required under this rule for individual

projects which are not FHWA/FTA

projects. However, § 51.450 applies to

such projects if they 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 of this 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 (PM O).

(3) The provisions of this subpart

apply with respect to emissions of the

following precursor pollutants:

(i) Volatile organic compounds and

nitrogen oxides in ozone areas (unless

the Administrator determines under

section 182(n of the CAA that additional

reductions of NOx 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 of the 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 a budget for such emissions

as part of the reasonable further

progress, attainment or maintenance

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 if one of the following

major steps has occurred within the past

three years: NEPA process completion;

start of final design; acquisition of a

significant portion of the right-of-way;

or approval of the plans, specifications

and estimates. All phases of such

projects which were considered in the

conformity determination are also

included, if those 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 will be required if there

is a significant change in project design

concept and scope, if a supplemental

environmental document for air quality

purposes is initiated, or if no major

steps to advance the project have

occurred within the 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

for DOT, 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 of an area's

redesignation from attainment to

nonattainment, if the 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 as Federal

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 Air Act section 176(c) until such

time as the required conformity

implementation plan revision is

approved by EPA. Following EPA

approval of the State conformity

provisions (or a portion thereof) in a

revision to the applicable

implementation plan, the approved (or

approved portion of the) 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, if any, of the

State's conformity provisions that is not

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) To be approvable by EPA, the

implementation plan revision submitted

to EPA and DOT under this section shall

address all requirements of this subpart

in a manner which gives them full legal

effect. In particular, the revision shall

incorporate the provisions of the

following sections of this 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:

HeinOnline -- 58 Fed. Reg. 62218 1993
No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62219

§§ 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 to the implementation of

those transportation portions of an

applicable implementation plan

prepared to attain and maintain the

NAAQS. This priority shall be

consistent with statutory requirements

for allocation of funds among States or

other jurisdictions.

§ 51.400 Frequency of conformity

detenrminaons.

(a) Conformity determinations and

conformity redeterminations for

transportation plans, TIPs, and FHWA/

FTA projects must be made according to

the requirements of this section and the

applicable implementation plan. (b) 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

§ 51.460. 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 of the

following, or the existing conformity

determination will lapse:

(i) November 24, 1993;

(ii) EPA approval of an

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(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) EPA promulgation of an

implementation plan which establishes

or revises a transportation-related

emissions budget or adds, deletes, or

changes ToCs.

(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 § 51.460.

(3) After an MPO adopts a new or

revised transportation plan, conformity

must be redetermined by the MPO and

DOT within six months from the date of

adoption of the plan, unless the new or

revised plan merely adds or deletes

exempt projects listed in § 51.460.

Otherwise, the existing conformity

determination for the TIP will lapse. (4). In any case, conformity

determinations must be made no less

frequently than every three years or the

existing conformity determination will

lapse. id) Projects. FHWA/FTA projects

must be found to conform before they

are adopted, accepted, approved, or

funded. Conformity must be

redetermined for any FHWA/FTA

project if none of the following major

steps has occurred within the past three

years: NEPA process completion; start of

final design; acquisition of a significant

portion of the right-of-way; or approval

of the plans, specifications and

estimates.

§ 51.402 Consultation.

(a) General. The implementation plan

revision required under § 51.396 shall

include procedures for interagency

consultation (Federal, State, and local)

and resolution of conflicts.

(1) The implementation plan revision

shall include procedures to be

undertaken by MPOs, State departments

of transportation, and DOT with State

and local air quality agencies and EPA

before making conformity

determinations, and by State and local

air agencies and EPA with MPOs, State

departments of transportation, and DOT

in developing applicable

implementation plans.

(2) Before the implementation plan

revision is approved by EPA, MPOs and

State departments of transportation

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) Interagency consultation

procedures: General factors. (1) States

shall provide in the implementation

plan well-defined consultation

procedures whereby representatives of

the MPOs, State and local air quality

planning agencies, State and local

transportation agencies, and other

organizations with responsibilities for

developing, submitting, or

implementing provisions of an

implementation plan required by the

CAA must consult with each other and

with local or regional offices of EPA,

FHWA, and FTA on the development of

the implementation plan, the

transportation plan. the TIP, and

associated conformity determinations.

(2) Interagency consultation

procedures shall include at a minimum

the general factors listed below and the

specific processes in paragraph fc) of

this section:

i) The roles and responsibilities

assigned to each agency at each stage in

the implementation plan development

process and the transportation planning

process, including technical meetings;

(ii) The organizational level of regular

consultation;

iii) A process for circulating (or

providing ready access tol draft

documents and supporting materials for

comment before formal adoption or

publication;

(iv) The frequency of, or process for

convening, consultation meetings and

responsibilities for establishing meeting

agendas; (v) A process for responding to the

significant comments of involved

agencies; and

(vi) A process for the development of

a list of the TCMs which are in the

applicable implementation plan. (c) Interagency consultation

procedures: Specific processes.

Interagency consultation procedures

shall also include the following specific

processes: (1) A process involving the MPO,

State and local air quality planning

agencies, State and local transportation

agencies, EPA, and DOT for the

following. (i) Evaluating and choosing a model

(or models) and associated methods and

assumptions to be used in hot-spot

analyses and regional emissions

analyses; (ii) Determining which minor arterials.

and other transportation projects should

be considered "regionally significant"

for the purposes of regional emissions

analysis (in addition to those

functionally classified as principal

arterial or higher or fixed guideway

systems or extensions that offer an

alternative to regional highway travel),

and which projects should be

considered to have a significant change

in design concept and scope from the

transportation plan or TIP;

Federal Registe / Vol. 58,

HeinOnline -- 58 Fed. Reg. 62219 1993
62220 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

(iii) Evaluating whether projects

otherwise exempted from meeting the

requirements of this subpart (see

§§ 51.460 and 51.462) 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 § 51.418(c)(1), whether past

obstacles to implementation of TCMs

which are behind the schedule

established in the applicable

implementation plan have been

identified and are being overcome, and

whether State and local agencies with

influence over approvals or funding for

TCMs are giving maximum priority to

approval or funding for TCMs. This

process shall also consider whether

delays in TCM implementation

necessitate revisions to the applicable

implementation plan to remove TCMs

or substitute TCMs or other emission

reduction measures;

(v) Identifying, as required by

§ 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 of transportation plan

or TIP revisions or amendments which

merely add or delete exempt projects

listed in § 51.460.

(2) A process involving the MPO and

State and local air quality planning

agencies and transportation agencies for

the following:

(i) Evaluating events which will

trigger new conformity determinations

in addition to those triggering events

established in § 51.400; and

(ii) Consulting on emissions analysis

for transportation activities which cross

the borders of MPOs or nonattainment

areas or air basins.

(3) Where the metropolitan planning

area does not include the entire

nonattainment or maintenance area, a

process involving the MPO and the

State department of transportation for

cooperative planning and analysis for

purposes of determining conformity of

all projects outside the metropolitan

area and within the nonattainment or

maintenance area.

(4) A process to ensure that plans for

construction of regionally significant

projects which are not FHWA/FTA

projects (including projects for which

alternative locations, design concept

and scope, or the no-build option are

still being considered), including those

by recipients of funds designated under

title 23 U.S.C. or the Federal Transit

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 § 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) Resolving conflicts. Conflicts

among State agencies or between State

agencies and an MPO shall be escalated

to the Governor if they cannot be

resolved by the heads of the involved

agencies. The State air agency has 14

calendar days to appeal to the Governor

after the State DOT or MPO has notified

the State air agency head of the

resolution of his or her comments. The

implementation plan revision required

by § 51.396 shall define the procedures

for starting of the 14-day clock. If the

State air agency appeals to the

Governor, the final conformity

determination must have the

concurrence of the Governor. If the State

air agency does not appeal to the

Governor within 14 days, the MPO or

State department of transportation may

proceed with the final conformity

determination. The Governor may

delegate his or her role in this process,

but not to the head or staff of the State

or local air agency, State department of

transportation, State transportation

commission or board, or an MPO.

(e) Public consultation procedures.

Affected agencies making conformity

determinations on transportation plans,

programs, and projects shall establish a

proactive public involvement process

which provides opportunity for public

review and comment prior to taking

formal action on a conformity

determination for all transportation

plans and TIPs, consistent with the

requirements of 23 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 for a transportation plan or TIP.

These agencies shall also provide

opportunity for public involvement in

conformity determinations for projects

where otherwise required by law.

§ 51.404 Content of transportation plans.

(a) Transportation plans adopted after

January 1, 1995 in serious, severe, or

extreme ozone nonattainment areas and -in serious carbon monoxide

nonattainment areas. The transportation

plan must specifically describe the

transportation system envisioned for

certain future years which shall be

called horizon years.

(1) The agency or organization

developing the transportation plan may

choose any years to be horizon years,

subject to the following restrictions:

(i) Horizon years may be no more than

10 years apart. 10 The irst* horizon year may be no

more than 10 years from the base year

used to validate the transportation

demand planning model.

(iii) If the attainment year is in the

time span of the transportation plan, the

attainment year must be a horizon year.

(iv) The last horizon year must be the

last year of the transportation plan's

forecast period. (2) For these 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 in terms of the

regionally significant additions or

modifications to the existing

transportation network which the

transportation plan envisions to be

operational in the horizon years.

Additions and modifications to the

highway network shall be sufficiently

identified to indicate intersections with

existing regionally significant facilities,

and to determine their effect on route

options between transportation analysis

zones. Each added or modified highway

segment shall also be sufficiently

identified in terms of its design concept

and design scope to allow modeling of

travel times under various traffic

volumes, consistent with the modeling

methods for area-wide transportation

analysis in use by the MPO. Transit

facilities, equipment, and services

envisioned for the future shall be

identified in terms of design concept,

HeinOnline -- 58 Fed. Reg. 62220 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62221

design scope, and operating policies

sufficiently to allow modeling of their

transit ridership. The description of

additions and modifications to the

transportation network shall also be

sufficiently specific to show that there

is a reasonable relationship between

expected land use and the envisioned

transportation system; and

(il Other future transportation

policies, requirements, services, and

activities, including intermodal

activities, shall be described.

(b) Moderate areas reclassified to

serious. Ozone or CO nonattainment

areas which are reclassified from

moderate to serious must meet the

requirements of paragraph (a) of this

section within two years from the date

of reclassification.

(c) Transportation plans for other

areas. Transportation plans for other

areas must meet the requirements of

paragraph (a) of this section at least to

the extent it has been the previous

practice of the MPO to prepare plans

which meet those requirements.

Otherwise, 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 of this

section supplement other requirements

of applicable law or regulation

governing the format or content of

transportation plans.

§ 51.406 Relationship of transportation

plan and TIP conformity with the NEPA

process.

The degree of specificity required in

the transportation plan and the specific

travel network assumed for air quality

modeling do not preclude the

consideration of alternatives in the

NEPA process or other project

development studies. Should the NEPA

process result in a project with design

concept and scope significantly

different from that in the transportation

plan or TIP, the project must meet the

criteria in §§ 51.410 through 51.446 for

projects not from a TIP before NEPA

process completion.

§ 51.408 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.

§51.410 Criteria and procedures for

determining conformity of transportation plans, programs, and projects: General.

(a) In order to be found to conform,

each transportation plan, program, and

FHWA/FTA project must satisfy the

applicable criteria and procedures in

§§ 51.412 through 51.446 as listed in

Table I in paragraph (b) of this section,

and must comply with all applicable

conformity requirements of

implementation plans and of court

orders for the area which pertain

specifically to 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 a con- No additional criteria.

forming plan and

TIP).

TABLE 1 .- CONFORMITY CRITERIAContinued

Action Criteria

Project (Not from a 951.432.

conforming plan

and TIP).

51.412 The conformity determination must

be based on the latest planning

assumptions.

51.414 The conformity determination must

be based on the latest emission

estimation model available.

51.416 The MPO must make the conformity

determination according to the

consultation procedures of this rule and

the implementation plan revision

required by § 51.396.

51.418 The transportation plan, TIP, or

FHWA/FTA project which is not from a

conforming plan and TIP must provide

for the timely implementation of TCMs

fromthe applicable implementation

plan.

51.420 There must be a currently

conforming transportation plan and

currently conforming 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 or contribute to any new localized

CO or PM io violations or increase the

frequency or severity of any existing 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 plan or 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 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.

51.434 The FHWA/FTA project must

eliminate or reduce the severity and

number of localized CO violations in the

area substantially affected by the project

(in CO nonattainment areas).

51.436 The transportation plan must

contribute to dmissions reductions in

ozone and CO nonattainment areas.

51.438 The TIP must contribute to

emissions reductions in ozone and CO

nonattainment areas.

51.440 The project which is not from a

conforming transportation plan and TIP

must contribute to emissions reductions

in ozone and CO nonattainment areas.

HeinOnline -- 58 Fed. Reg. 62221 1993
6222.2Federal Register t VoL 58. No. 225 / Wedtesday November 24,

51.44z The transperfatien plan must

contribute tagissiow mductions or must not increase emissions in PM1o and

NO2 nouattainment areas. 51.444 The TIP must contribute to emission

reductions or must not increase

emissions in PMw and NO2

nonattainment areas. SL44. The project whh is not froma

conforming transportation plan and TIP

most contribute ta emission reductions or must not tncivas. emissions in PMin

and NO2 nonattainment areas.

§51.412 CdttK& aad preeedum: Latest

planning assumptleaa

(a) The confmomity determination,

with respect Io alt other applicable

criteria in ,f51.414 through 51.446,

must be hased upon the most recent

planning assumptions in force at the

time of the conformity determination.

This criterion applies during all periods.

The conformity determination must

satisfy the requirements of paragraphs

(b) through (1) of this section.

(b) Assumptions must be derived from

the estimates of current and future

population, employment, travel, and

congestion most recently developed by

the MPO or other agency authorized to

make such estimates amd 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 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

transit fares and road and bridge tolls

over time.

(e) The conformity determination

must use the latest existing information

regarding the effectiveness of the TCMs

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 public consultation

required by § 51.402.

§51.414 Criteria and, p e dures Latest

emissions model.

(a) The coniarmity determination

must be based on the latest emission

estimation mode available. This

criterion appiies dering all peuiods. It is

satisfied if the most current version of

the motor vehicle emissions model

specified by EPA for usm in the

* preparation or revision of

implementation plans in that State or

area is used for the conformity analysis.

Where EMFAC is the motor vehicle

emissions modM used' k preparing or

revising the applicable implementation

plan, new versions must beapproved by

EPA before they me used in the

conformity analysis.

(b) EPA will consult with DOT to

establish a grace period following the

specification of any new model.

JI) The grace period, will be no less

than three months and no more than 24

months after notice of availability is

published in the Federal Regiater.

(2) The length of the grace period will

depend on the degree of-change in the

model and the scqpe of re-planning

likely to be necessary by, MOs in order

to assu conformity. If the grace period

will be longer than, three months, EPA

will announce the appropriate grace

period in the Federal Register.

(c) Conformity analyses for which the

emissions analysis was begun during

the grace period or before the Federal

Register notice of availability of the

latest emission model may continue to

use the previous version of the model

for transportation plans and TIPs. The

previous model may also be used for

projects if the analysis was begun

during the grace peiod or before the

Federal Register notice of availability,

provided no more than three years have

passed sincethe draft environmental

document was issued.

§ 51A16 Criteria and 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 the MPO in compliance

with 23 CFR part 450. This criterion

applies during all periods. Until the

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 if the conformity determination

is made consistent with the.

implementation plan's consultation

requirements.

§51.418 Criteria and procedures: Timely

Implementation of TCMs.

(a) The transportation plan, TIP, or

FHWA/FTA project which is not from a

conforming plan and TIMP must provide

for the timely implementation of TCMs

from the applicable implemenation

plan. This criterion applies during all

periods.

(b) For transportation plans, this

criterion is satisfied if the following two

conditions are met,

(I The transportation plan,. in

describing the envisioned future

transportation system, provides for the

timely completion or implementation of

all TCMs in the applicable

implementation plan which are eligible

for funding under title 23 U.S.C.- or the

Federal Transit Act,, consistent with

schedules included in the applicable

implementation plan.

(2) Nothing in the transportation pla

interferes with the. implementation of

any TCM is theapplicable

implementation plan.

(c) For TIPs, this criterion is satisfied.

if the following conditions are met:

(lIAn examination of the specific

steps and funding sourcets) needed to

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 of the

TCMs have been identified and have

been or are being overcome, and that all

State and local agencies with. influence

over approvals or funding for TCMs are

giving maximum priority to approval or

funding of TCb& over other projects

within their control, including projects

in locations outside the nonattainment

or maintenance area.

(2) If TCMs in the-applicable

implementation plan have previously

been programmed for Federal fundingbut the funds have' not been obligated

and the TCMs are behind the schedule

in the implementation plan,, then theTIP cannot be found to conform if the

funds intended for those TCMs are

reallocated to, projects hn the TIP other

than TCMs, or if there are no ether

TCMs in the TIP, if the funds am

reallocated to projects in the TIP ether

than projects which are eligile ffb

Federal funding under ISTEA's

Congestion Mitigation and Air Quality

Improvement Program.

(3) Nothing in the TIP may interfere

with the implementation of any TCM in

the applicable implementation plan.

(d) For FHWA/FTA projects which

are not from a conforming

transportation plan and TIP, this

criterion is satisfied if the project does

not interfere with the implementation of

any TCM in the applicable

implementation plan.

1993 t Rules and: Regulations

HeinOnline -- 58 Fed. Reg. 62222 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62223

§51.420 Criteria and procedures:

Currently conforming transportation plan

and TIP.

There must be a currently conforming

transportation plan and currently

conforming TIP at the time of project

approval. This criterion applies during

all periods. It is satisfied if the current

transportation plan and TIP have been

found to conform to the applicable

implementation plan by the MPO and

DOT according to the procedures of this

subpart. Only one conforming

transportation plan or TIP may exist in

an area at any time; conformity

determinations of a previous

transportation plan or TIP expire once

the current plan or TIP is found to

conform by DOT. The conformity

determination on a transportation plan

or TIP will also lapse if conformity is

not determined according to the

frequency requirements of § 51.400.

§ 51.422 Criteria and procedures: Projects

from a 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 in Table 1 for a

project not from a conforming

transportation plan and TIP. A project is

considered to be from a conforming

transportation plan if it meets the

requirements of paragraph (b) of this

section and from a conforming program

if it meets the requirements of paragraph

(c) of this section.

(b) A project is considered to be from

a conforming transportation plan if one

of the following conditions applies:

(1) For projects which are required to

be identified in the transportation plan

in order to satisfy § 51.404, the project

is specifically included in the

conforming transportation plan and the

project's design concept and scope have

not changed significantly from those

which were described in the

transportation plan, or in a manner

which would significantly impact use of

the facility; or

(2) For projects which are not

required to be specifically identified in

the transportation plan, the project is

identified in the conforming

transportation plan, or is consistent

with the policies and purpose of the

transportation plan and will not

interfere with other projects specifically

included in the transportation plan.

(c) A project is considered to be from

a conforming program if the following

conditions are met:

(1) The project is included in the

conforming TIP and the design concept

and scope of the project were adequate

at the time of the TIP conformity

determination to determine its

contribution to the TIP's regional

emissions and have not changed

significantly from those which were

described in the TIP, or in a manner

which would significantly impact use of

the facility; and

(2) If the TIP describes a project

design concept and scope which

includes project-level emissions

mitigation or control measures, written

commitments to implement such

measures must be obtained from the

project sponsor and/or operator as

required by § 51.458(a) in order for the

project to be considered from a

conforming program. Any change in

these mitigation or control measures

that would significantly reduce their

effectiveness constitutes a change in the

design concept and scope of the project.

§ 51.424 Criteria and procedures: Localized CO and PM10 violations (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 PM1 o violations in CO and PM~o

nonattainment and maintenance areas.

This criterion applies during all periods.

This criterion is satisfied if it is

demonstrated that no new local

violations will be created and the

severity or number of existing violations

will not be increased as a result of the

project.

(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 of the

type identified by § 51.454(a) or

§ 51.454(d), this criterion may be

satisfied if consideration of local factors

clearly demonstrates that no local

violations presently exist and no new

local violations will be created as a

result of the project. Otherwise, in CO

nonattainment and maintenance areas, a

quantitative demonstration must be

performed according to the

requirements of § 51.454(b).

§ 51.428 Criteria and procedures:

Compliance with PM10 control measures.

The FHWA/FTA project must comply

with PM1o control measures in the

applicable implementation plan. This

criterion applies during all periods. It is

satisfied if control measures (for the

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 for the

project.

§51.428 Criteria and procedures: Motor

vehicle emissions 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 S 51.464. This criterion may

be satisfied if the requirements in

paragraphs (b) and (c) of this section are

met: (b) A regional emissions analysis

shall be performed as follows:

(1) The regional analysis shall

estimate emissions of any of the

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 of NO. would not

contribute to attainment;

(iii) CO;

(iv) PM lo (and its precursors VOC

and/or NO. if the applicable

implementation plan or implementation

plan submission identifies

transportation-related precursor

emissions within the nonattainment

area as a significant contributor to the

PM ,o nonattainment problem or

establishes a budget for such emissions);

or

(v) NO. (in NO 2 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 of the transportation plan;

(3) The emissions analysis

methodology shall meet the

requirements of § 51.452;

(4) For areas with a transportation

plan that meets the content

requirements of § 51.404(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 § 51.404(a), the

HeinOnline -- 58 Fed. Reg. 62223 1993
62224 Federal Reg tr 1' VoL 58, No. 225 t Wedriesday; November 24, 199'J ' Rules and Regirrations UMd |EN l-- I

emissions anelyskis hakliba pedred

for any years in the time span of the

transportation plan provided they are

not more than ten years apart and

provided the analysis is performed for

the last year of the plan's forecast

period. Iftheattainment year is in the

time span of the transportation plan, the

emissions analysis- must also be

performed for the attainment year.

Emissions ir milestone years which are

between, these analysis years may be

determined by interpolation.

(c) The, regiona emissions analysis

shall demonstrat that for each of the

applicable pollutants or pollutant

precursosin paragraph (b)(1) of this

section tfe emissions are less than or

Pqual to the motor vehicle emissions

budget as established in the applicable

inplementation plan or implementation

plan submission as- follows:

(1) If the applicable implementation

plan or implementation plan

submission establishes emissions

budgets for mieistone years, emissions

in each milestone year are less than or

equal to the motor vehicle emissions

budget established for that year (? For nonattainment areas,

emissions in the attainment year are less

then or equal to the-motor vehicle

emissions budget. established' in the,

applicable implementation plan or

implementation plan submission for

that year;

J For nonettainment areas,

emissions in each analysis or horizon

year after the attainment year are less

than or equal'to' the motor vehicle

emissions bndtet established by the

applicable implementatitn plan or

implementation plan submission for the

attainment year. If emissions budgets

are established for years after the

attainment year, emissions in each

analysis year or horizon year must be

less than or equal to rthmotor vehicle

emissions budget for that year, if any, or

the motor vehicle emissions budget for

the most recent budget yearprior to the

analysis year or horizon yeam, and

(4)For maintemnce areas; emissions

in each analysis or horizon year are less

than or equal to the motor vehifle

emissions budget, establshed 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.

151.43a CrdwWand preedwus: Motor

vehicl e 1a1onbud p (TiPh

W The TiP meat b 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 the c ntrol strategy and

maintenance, perieds, except as

provided in § 5t.444. This criterion may

be satisfied; if the requirements i

paragraphs (b) an (ie) of this section are

met:

(b) For areas with a conformmng

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 of the TIP is

consistent with the Federal funding

which muay be reasonably expected for

that year, and required Stoe/local

matching fimds and funds for State/

local fundig-onLy projects are

consistent with the revenue sources

expected over the same. 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 TIP contains all projects which

must be started in the TIP's timeframe

in order to achieve the highway and

transit system envisioned by the

transportation plan in each of its

horizon years; Al di) "tp pejots which are

regionally significant are part of the

specific highway or transit 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) If the requirements in paragraphs

(b)(1) and (b)(2) of this section are not

met, then: (W TMe TEP may be modified' to meet

those requirements; or

(ii) The transportation plan must be

revised so OW the, requirements in

paragraphs (bJI) and (b)(2) of this

secton are met. Once the revised plan

has been found to conform, this

criterion is met for, the TIP'with' no

additional analysis except a.

demonstration that the TIP meets the

requirements of paragraphs ( )(T) and

(b)(2) of this section.

(c) For areas with a transpwation&

plan that does not meet the content

requirements of§ 51.404(a), a regional

emissions, analysis must meet' all of the

following requirements:

(1) The regiond emissions analysis

shall estimate emissions *ern the entire

transportation system, inefuding aft

projects- contained in de proposed T,

the transportadee pban, and aff other

regionally sigifikant highiway and

transit projects expected in the

nonattainment or maintenance area, in,

the timeframe of the transportation plan;

(2) The analysis methodology shall

meet the requirements 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 and4 procedree: Moftr

vehicle emirastonb vdgm (prject ast from

a plan. and TIP).

(a) The project which is not from a,

conforming transportation plan and a

conforming TP mustbe consiitent with

the motor 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 It is 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 other regionally 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 a conforing,

transportation plan that meets 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. This requires a

demonstration that-

(iJ Allocating funds to the project will

not delay the implementation of projects

in the transportation plan or TIP which

are necessary to achieve the highway

and transit system envisioned by the

transportation plan in each of its

horizon years;

(ii)' The project iT not regionally

significant or is part of the 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) If the requirements in paragraph

(b)(1) of this 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 shaf estimate

emissions fiom the transpofttion

system, including, the proposed project

and all other iegionally significant

projects expected in the nonattainment

or maintenance area in the tirneframe of

the transportation plan. The analysi's

HeinOnline -- 58 Fed. Reg. 62224 1993
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) In the

Interim period.

(a) Each FHWA/FTA project must

eliminate or reduce the severity and

number of localized CO violations in the

area substantially affected by the project

(in CO nonattainment areas). This

criterion 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 or reduced

in severity and. number as a result of the

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 of the

type identified by § 51.454(a), this

criterion may be satisfied if

consideration of local 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 In ozone 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 if a regional

emissions analysis is performed as

described in paragraphs (b) through (f)

of this 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 firt

analysis year or earlier, the second

analysis year shall be at least five years

beyond the first analysis year. The last

year of the transportation plan's forecast

period shall also be an analysis year.

(c) Define the 'Baseline' scenario for

each of the 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 or transportation system

management activities; and

13) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first three years

of the previously conforming

transportation plan and/or TIP; or have

completed the NEPA process. (For the

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 of final design;

acquisition of a 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) of this section.)

(d) Define the 'Action' scenario for

each of the 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 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 of all TCMs and

regionally significant projects (including

facilities, services, and activities)

specifically identified in the proposed

transportation plan which will be

operational or in effect in the analysis

year, except that regulatory TCMs may

not be assumed to begin at a future time

unless the regulation is already adopted

by the enforcing jurisdiction or the TCM

is identified in the applicable

implementation plan;

(3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or

sponsoring agency since the last

conformity determination on the

transportation plan;

(4) The incremental effects of any

travel demand management programs

and transportation system management

activities known to the MPO, but not

included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

were adopted and/or funded prior to the

date of the last conformity

determination on the transportation

plan, 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 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

of the 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

HeinOnline -- 58 Fed. Reg. 62225 1993
62226 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

(f) This criterion is met if the regional

VOC and NOXemisslons (for ozone

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 the net effect on emissions of

all projects contained in a new or

revised TIP. This criterion may be

satisfied if a regional emissions analysis

is performed as described in paragraphs

(b) through () of this 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 no more than ten years apart.

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 of the 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 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 or transportation system

management activities; and

(3) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first three years

of the previously conforming TIP; or

have completed the NEPA process. (For

the first conformity determination on

the TIP 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 of final design;

acquisition of a 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) of this section.) (dJ Define the 'Action' scenario as the

future transportation system that will

result from the implementation of the

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 not be

assumed to begin at a future time unless

the regulation is already adopted by the

enforcing jurisdiction or the TCM Is

contained in the applicable

implementation plan; (3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or

sponsoring agency since the last

conformity determination on the TIP;

(4) The incremental effects of any

travel demand management programs

and transportation system management

activities known to the MPO, but not

included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

were adopted and/or funded prior to the

date of the last conformity

determination 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 that have

clear funding sources and commitments

leading toward their implementation

and completion by the analysis year. (e) Estimate the emissioni 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

of the 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 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 can reasonably be expected to be

true in the 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 reductions for ozone and CO areas

(project not from 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 § 51.464. This

criterion is satisfied if a regional

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 of a project currently

in the plan or TIP, the 'Baseline'

scenario must include the project with

its original design concept and scope,

and the 'Action' scenario must include

the project with its new design concept

and scope.

151.442 Criteria and procedures: Interim

period reductions for PM1o and NO2 areas

(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 of all

projects contained in a new or revised

transportation plan. This criterion may

be satisfied if the requirements of either

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62226 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

paragraph (b) or (c) of this section are

met

(b) Demonstrate that implementation

of the plan and all other regionally

significant projects expected in the

nonattainment area will contribute to

reductions in emissions of PM,o in a

PM1t nonattainment area (and of each

transportation-related precursor of PMo

in PMo nonattainment areas if the 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,0

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.

Analysis years shall be no more than ten

years apart. The first analysis year shall

be no later than 1996 (for NO2 areas) or

four years and six months following the

date of designation (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 be at least five years

beyond the first analysis year. The last

year of the 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 of PMo in PM1o

nonattainment areas if the 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 PM1o nonattainment

problem and has so notified the MPO

and DOT) and in NO,, emissions in an

NO 2 nonattainment area. The analysis

must be performed for each of the

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 (if any),

and the first of the 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 PM1t

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 (if any)

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 of PM,0 in a PM10

nonattainment area (and transportationrelated precursorsof PM,o in PM,0

nonattainment areas if the 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 PMto nonattainment

problem and has so notified the MPO

and DOT) and of NO,, 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 of PM,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 a PMo 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 of the

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

§ 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 of designation (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 be at least

five years beyond the first analysis year.

The last year of the 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) of this section are no

greater than baseline emissions of PM,,

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,,o and NO2 areas

(TIP).

(a) A TIP must contribute to emission

reductions or must 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 of all projects

contained in a new or revised TIP. This

criterion may be satisfied if the

requirements of either paragraph (b) or

paragraph (c) of this section are met.

(b) Demonstrate that implementation

of the plan and TIP and all other

regionally significant projects expected

in the nonattainment area will

contribute to reductions in emissions of

PM,10 in a PM,, nonattainment area (and

transportation-related precursors of

PM,0 in PMo nonattainment areas if the

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 PMo

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

§ 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 of PMo in a PMo

nonattainment area (and transportationrelated precursors of PMo in PMo

nonattainment areas if the EPA Regional

Administrator or the director of the

State air agency has made a finding that

such precursor emissions from'within

1993 / Rules and Regulations 62227

HeinOnline -- 58 Fed. Reg. 62227 1993
62228 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

the non attainment 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 PM10 and NO2 areas

(project not 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 if a regional emissions analysis is

performed which meets the

requirements of § 51.442 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 of a project currently in

the transportation plan or TIP, and

§ 51.442(b) is used to demonstrate

satisfaction of this 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 Transition from the Interim period

to the control strategy 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 year from the date

the Clean Air Act requires submission of

such control strategy implementation

plan revision. Otherwise, the conformity

status of the 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 of the

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 of the control strategy

implementation plan revision, new

transportation plans and TIPs shall

demonstrate conformityaccording to

transitional period criteria and

procedures.

(2) If EPA 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)

of this section, if EPA 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 of paragraph

(a)(1) of this 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 have not submitted a

control strategy implementation plan

revision. (1) For areas whose Clean Air

Act deadline for submission of the

control strategy implementation plan

revision is after November 24, 1993, and

EPA has notified the State, MPO, and

DOT of the 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 of the control

strategy implementation plan was before

November 24, 1993 and EPA has made

a finding of failure to submit a control

strategy implementation plan revision,

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

TIPs may be found to conform

beginning March 24, 1994; and

{ii) The conformity status of the

transportation plan and TIP shall lapse

November 25, 1994, and no new projectlevel conformity determinations may be

made.

(c) Areas which have not submitted a

complete control strategy

implementation plan revision. (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 lO(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 120 days after EPA's

incompleteness finding; 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.

(iii) Notwithstanding paragraphs (c)(1)

(i) and (ii) of this section, if EPA 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 of paragraph (a)(1) of this

section shall apply for a period of 12

months following the date of the

incompleteness determination. The

conformity status of the transportation

plan and TIP shall lapse 12 months

following the date of the 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

TIPs may be found to conform

beginning March 24, 1994; and

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62228 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62229

(ii) The conformity status of the

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) of this section, if EPA 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 of paragraph (d)(1) of this

section shall apply for a period of 12

months following the date of the

incompleteness determination. The

conformity status of the transportation

plan and TIP shall lapse 12 months

following the date of the incompleteness

determination unless another control

strategy implementation plan revision is

submitted to EPA and found to be

complete.

(d Areas which submitted a control

strategy implementation plan before

November 24, 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 of new

transportation plans and TIPs may be

demonstrated according to Phase II

interim period criteria and procedures

until February 22, 1994, provided the

conformity of such transportation plans

and TIPs is redetermined according to

transitional period criteria and

procedures as required in paragraph

(d)(1) of this 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

of the 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).

of this section, if EPA 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 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 of paragraph

(d)(1) of this section shall apply for 12

months following November 24, 1993.

The conformity status of the

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. If the 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) of this 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 must be

consulted on how the emissions 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 or the 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 for any State

air agency comments on a conformity.

determination.

(f) Redetermination of conformity of

the existing transportation plan and TIP

according to the transitional period

criteria and procedures. (1) The

redetermination of the conformity of the

existing transportation plan and TIP

according to transitional period criteria

and procedures (as required 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 §§ 51.412 and 51.414 if:

(i) The control strategy

implementation plan revision submitted

to EPA uses the MPO's modeling of the

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) of this

section is not considered 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 of the last

determination which did not rely on

paragraph (0(1) of this section. I (g) Ozone nonattainment areas. (1)

The requirements of paragraph (b)(1) of

this section apply if a serious or above

ozone nonattainment area has not

submitted the implementation plan

revisions which Clean Air Act sections

182(c)(2)(A) and 182(c)(2)(B) require to

be submitted to EPA November 15,

1994, even if the area has submitted the

implementation plan revision which

Clean Air Act section 182(b)(1) requires

to be submitted to EPA November 15,

1993.

(2) The requirements of paragraph

(b)(1) of this 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 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 of paragraph (b)(1) of this

section apply in this case even if the

area has submitted the 15% emission

reduction demonstration required by

Clean Air Act section 182(b)(1).

(3) The requirements of paragraph (a)

of this section apply when the

implementation plan revisions required

by Clean Air Act sections 182(c)(2)(A)

and 182(c)(2)(B) are submitted.

(h) Nonattainment areas which are

not required to demonstrate reasonable

further progress and attainment. If an

area listed in § 51.464 submits a control

strategy implementation plan revision;

the requirements of paragraphs (a) and

(e) of this section apply. Because the

areas listed in § 51.464 are not required

to demonstrate reasonable further

progress and attainment and therefore .

have no Clean Air Act deadline, the

provisions of paragraph (b) of this

section do not apply to these areas at

any time.

(i) Maintenance plans. If a control

strategy implementation plan revision is

not submitted to EPA but a maintenance

plan required by Clean Air Act section

175A is submitted to EPA, the

HeinOnline -- 58 Fed. Reg. 62229 1993
62230 Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

requirements of paragraph (a) or (d) of

this section apply, with the

maintenance plan submission treated as a control strategy implementation plan

revision" for the purposes of those

requirements.

§ 51.450 Requirements for adoption or

approval of projects by recipients of funds

designated under title 23 U.S.C. or the

Federal Transit Act

No recipient of federal 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 of one of the following

paragraphs (a) through (e) of this 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 if the

project is not strictly "included" in the

TIP for the purposes of MPO 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 § 51.432;

(d) During Phase HI of the 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 of both

paragraphs (c) and (d) of this section.

§ 51.452 Procedures for dearmining regional traneportation-relaled emissions.

(a) General requirements. (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 the MPO as

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. The effects of

TCMs and similar projects that are not

regionally significant may also be

estimated in accordance with reasonable

professional practice.

(2) The emissions analysis may not

include for emissions reduction credit

any TCMs which have been delayed

beyond the scheduled date(s) until such

time as implementation has been

assured. If the 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 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 if an opt-in to a Federally

enforced program has been approved by

EPA, if EPA has promulgated the

program (if the control program is a Federal responsibility, such as tailpipe

standards), or if the Clean Air Act

requires the program without need for

individual State action and without any

discretionary authority for EPA to set its

stringency, delay its effective date, or

not implement the program.

(4) Notwithstanding paragraph (a)(3)

of this 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 of a 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 of satisfying the

requirements of §§ 51.436 through

51.440 may account for the programs in

paragraph (a)(4) of this section, but the

same assumptions about these programs

shall be used for both the "Baseline"

and "Action" scenarios.

) Serious, severe, and extreme ozone

nonattainment areas and serious carbon

monoxide areas after January 1, 1995.

Estimates of regional transportationrelated emissions used to support

conformity determinations must be

made according to procedures which

meet the requirements in paragraphs

(b)(1) through (5) of this 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 of the 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 be in

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 of the 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 of assignment 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 be used 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 to pricing.

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 of land

development and use and the future

transportation system for which

HeinOnline -- 58 Fed. Reg. 62230 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62231

emissions are being estimated. Reliance

on a formal land-use model is not

specifically required but is encouraged; (ix) A dependence of trip generation

on the accessibility of destinations via

the transportation system (including

pricing) is strongly encouraged but not

specifically required, unless the

network model is capable of such

determinations and the necessary

information is available;

(x) A dependence of regional

economic and population growth on the

accessibility of destinations via the

transportation system is strongly

encouraged but not specifically

required, unless the network model is

capable of such 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 of vehicle

miles traveled shall be considered the

primary measure of vehicle miles

traveled within the portion of the

nonattainment or maintenance area and

for the functional classes of roadways

included in HPMS, for urban areas

which are sampled on a separate urban

area basis. A factor (or factors) shall be

developed to reconcile and calibrate the

network-based model estimates of

vehicle miles traveled in the base year

of its 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 of the HPMS and the modeled

network description. Departure from

these procedures is permitted with the

concurrence of DOT 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 of travel 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

of travel in a hot stabilized engine

mode, may be modified after

interagency consultation according to

§ 51.402 if the 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) Areas which are not serious,

severe, or extreme ozone nonattainment

areas or serious carbon monoxide areas,

or before January 1, 1995. (1) Procedures

which satisfy some or all of the

requirements of paragraph (a) of this

section shall be used in all areas not

subject to paragraph (a) of this section

in which those procedures have been

the previous practice of the MPO.

(2) Regional emissions may be

estimated by methods which do not

explicitly or comprehensively account

for the influence of land use and

transportation infrastructure on vehicle

miles traveled and traffic speeds and

congestion. Such methods must account

for VMT growth by extrapolating

historical VMT or projecting future

VMT by considering growth in

population and historical growth trends

for vehicle miles travelled per person.

These methods must also consider

future economic activity, transit

alternatives, and transportation system

policies. (d) Projects not from a conforming

plan and TIP in isolated rural

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 of any MPO's

metropolitan transportation plan or TIP

(because the nonattainment or

maintenance area or portion thereof

does not contain a metropolitan

planning area or portion of a

metropolitan planning area and is not

part of a 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 §§ 51.432, 51.440, and

51.446 with one regional emissions

analysis which includes all the

regionally significant projects in the

nonattainment or maintenance 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" shall be taken to mean

those projects in the statewide

transportation plan or statewide TIP

which are in the nonattainment or

maintenance area (or portion 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

(or portion 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)

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) 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 of the proposed

activities.

§51.454 Procedures for determining

localized CO and PM to 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 of the 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 of current

violation or possible current violation;

(2) For those intersections at Level-ofService D, E, or F, or those that will

HeinOnline -- 58 Fed. Reg. 62231 1993
62232 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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 of the 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 of the 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 of the "Guideline"

models is practicable and reasonable

given the potential for violations.

(b) In cases other than those described

in paragraph (a) of this 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 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,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

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

rail terminals or transfer points based on

appropriate modeling of various

terminal sizes, configurations, and

activity levels. The requirements of this

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 for both

analyses.

(f) PMio 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 operator to the

implementation of such 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 shall be considered separately,

using established "Guideline" methods.

Temporary increases are defined as

those which occur only during the

construction phase and last five years or

less at any individual site.

§ 51.456 Using the motor vehicle

emissions budget In the applicable Implementation plan for Implmentation

plan submission).

(a) In interpreting an applicable

implementation plan (or

implementation plan submission) with

respect to its motor vehicle emissions

budget(s), the MI and DOT may not

infer additions to the budget(s) that are

not explicitly intended by the

implementation plan (or submission).

Unless the implementation plan

explicitly quantifies the amount by

which motor vehicle emissions could be

higher while still allowing a

demonstration of compliance with the

milestone, attainment, or maintenance

requirement and explicitly states an

intent that some or all of this additional

amount should be available to the MPO

and DOT in the emission budget for

conformity purposes, the MPO may not

interpret the budget to be higher than

the implementation plan's estimate of

future emissions. This applies in

particular to applicable implementation

plans (or submissions) which

demonstrate that after implementation

of control measures in the

implementation plan:

(1) Emissions from all sources will be

less than the total emissions that would

be consistent with a required

demonstration of an emissions

reduction milestone;

(2) Emissions from all sources will

result in achieving attainment prior to

the attainment deadline and/or ambient

concentrations in the attainment

deadline year will be lower than needed

to demonstrate attainment; or

(3) Emissions will be lower than

needed to provide for continued

maintenance.

(b) If an 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

it is endorsed by the Governor and has

been subject to a public hearing, may be

used for the purposes of transportation

conformity before it is approved by

EPA.

(c A conformity demonstration shall

not trade emissions among budgets

which the applicable implementation

plan (or implementation plan

submission) allocates for different

pollutants or precursors, or among

budgets allocated to motor vehicles and

other sources, without a SIP revision or

a SIP which establishes mechanisms for

such trades.

(d) If the applicable implementation

plan (or implementation plan

submission) estimates future emissions

by geographic subarea of the

nonattainment area, the MPO and DOT

are not required to consider this to

establish subarea budgets, unless the

applicable implementation plan (or

implementation plan submission)

explicitly indicates an intent to create

such subarea budgets for the purposes of

conformity. (e) If a nonattainment area includes

more than one MPO, the SIP may

establish motor vehicle emissions

budgets for each MPO, or else the MPOs

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 of funds

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 of the

project and operation of the resulting

facility or service any project-level

mitigation or control measures which

are identified as conditions for NEPA

process completion with respect to local

PMbo or 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 or TIP 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

HeinOnline -- 58 Fed. Reg. 62232 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regiula ns6233

analysis required by §§ 51.424 and

51.434.

(b) Project sponsors voluntarily

committing to mitigation measures to

facilitate positive confenity

determinations must comply with the

obligations of such commitments.

(c) The Implementation plan revision

required in § 51.396 shall provide that

written commitments to mitigation

measures must be obtained prior to a

positive conformity determination, and

that project sponsors must comply with

such commitments.

(d) During the control strategy and

maintenance periods, iYthe MPO or

project sponsor believes the mitigation

or control measure is no longer

necessary for conformity, the project

sponsor or operator may be relieved of

its obligation to implement the

mitigation or control measure if it can

demonstrate that the 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 and that the

project still satisfies the requirements of

§ 51.424, and therefore that the •

conformity determinations 'for the

transportation plan, TIP, and project are

still valid.

§ 51.460 Exempt projects.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 2 are exempt from the

requirement that a conformity

determination be made. Such projects

may proceed toward implementation

even in the absence of a conforming

transportation plan and TIP. A

particular action of the type listed in

Table 2 is not exempt if the MPO in

consultation with other agencies (see

§ 51.402(c)(1)(iii)), the EPA, and the

FHWA (in the case ofe highway project)

or the FTA (in the case of a transit

project) concur that ft has potentially

adverse emissions impacts for any

reason. States and MPOs must easuve

that exempt projects do not interfere

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 operating assistance other than signalization projects.

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.

Skid teatments.

Safety roadside rest areas.

Adding medians.

Truck chimbifg lanes outside the urbanized area.

Lighting improvements. Widening narrow pavements or reconstucting bridges (no additional travel lanes).

Emergency truck pullovers.

Mass Transit

Operating essistancete tensit agencies.

Purchase of support vehicles.

Rehabilitaien of transit vehicles.'

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

Purchase Of operaing equpmt for vehicles (e.g., radios. fareboxes, lifts, etc.).

Construction or venovation of power,-signal, and communications systems.

Constntlonof small passenger shelters and information kiosks.

Reconstruction or renovation of tansit buildings and structures (e.g.. rail or bus buildings, storage and maintenance facillies, stations, terminals,

and ancily strucfus).

Rehabiltatlo or reconstruction of track structures, track, and track'bed In existing rights-of-way,

Purchase of new buses and al cars to replace existing vehicles or for minor expansions of the fleet,

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

Air Quality

Continuation of ide-sharing and van-pooling promotion activhtes at current levels.

Bicycle and pedestrian facilities.

Other

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

Planning and technical studies.

Grants for training and research pregrams.

Planning activities vooducted pursuant to titles 23 and 49 US.C.

Federal-aid systems ravisionis.

Engineering to assess mcial, economic, and environmental effects of the proposed ,actionor ,alternatives to that action.

Noise attenuation.

Advance land aoquisitions (23 CFR part 712-or 23 CFR part 771).

Acquisition of scenic easements.

Plantings, landscaping, etc.

HeinOnline -- 58 Fed. Reg. 62233 1993
62234 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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 substantial functional, locational or capac- ity changes.

1 PM,, nonattainment or maintenance areas, such projects are exempt only if they are in compliance with control measures in the 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)

or the 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 of 12.7 ppm or less; and

(7) Not classified CO areas.

(b) Default conformity procedures.

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 of the procedures in

§§ 51.428 through 51.432, except as

otherwise provided in paragraph (c) of

this section.

(c) Optional conformity procedures.

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-Conformity to State or Federal

Implementation Plans of Transportation

Plans, Programs, and Projects Developed,

Funded or Approved Under Title 23 U.S.C.

or the Federal Transit Act

Sec.

93.100 Purpose.

93.101 Definitions.

93.102 Applicability.

93.103 Priority.

93.104 Frequency of conformity

determinations.

93.105 Consultation.

93.106 Content of transportation plans.

93.107 Relationship of transportation 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 of TCMs.

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 of design 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.

HeinOnline -- 58 Fed. Reg. 62234 1993
Federal Register / Vol. 58, No. 225 1 Wednesday, November 24, 1993 / Rules and Regulations 62235

Subpart A-Coalnnt to State or

Federal Implementalion Plans of

Transp halls Planrogramsand

Prodecs Developed, Funded or

Approved Under TIte 23 U.&C. or the

Federal Tranmil Act

§93.100 Purpose.

The purpose of this subpart is to

implement section 176(c) of theClean

Air Act 4CAA), as ameaded (42 U.S.C.

7401 et seq.),eand t related

requirements of 23 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 -of Transportation (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 forth policy,

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., other Environmental Protection

Agency (EPA) regulations, or other DOT

regulations, in that order of priority.

Applicable implementation plan is

defined in section 302(q) of the CAA

and means the portion (or portions) of

the implementation plan, or most recent

revision thereof, which has been

approved under section 110, or

promulgated under section 110(c), or

promulgated or approved pursuant to

regulations promulgated under section

301 (d) and which implements the

relevant requirements of the CAA.

CAA means the Clean Air Act, as

amended.

Cause orcontribute to a new violation

for a project means: (1) To cause or contribute to a new

violation of a standard in the area

substantially affected by the project or

over a region which would otherwise

not be in violation of the standard

during the future period in question, if

the project were not implemented, or

(2) To contribute to a new violation in

a manner that would increase the

frequencyor severityof 'a new violation

of a standard in such area.

Control strategy implementation plan

revision is the epplicable

implemenation plan which contains

specific strategies for oontrolling the

emissions of 4nd redncing ambient

levels ofpolltants in oder to satisfy

CAA requirements for demonstrations 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).

Control strategy period with respect to

particulate matter less than 10 microns

in diameter (PM30 ), carbon monoxide

(CO), nitrogen dioxide (NO2), and/"or

ozone precursors (volatileorganic

compounds and oxides of nitrogen),

means that period of tine after EPA

approves control strategy

implementation plan revisions

containing strategies Tor controlling

PM30 , NO2, CO, and/or ozone, as

appropriate. This period ends when a

State submits and EPA approves a

request under section 1071d) of the CAA

for redesignation to an attainment area.

Design concept 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.

Design scope means the design

aspects which will affectthe proposed

facility's impact on regional emissions.

usually as they relate to vehicle or

person carrying capacity and ontrol,

e.g., number of lanes or tracks to be

constructed or added, length of project,

signatization, access control including

approximate number and location of

interchanges, preferential treatment for

high-occupancy vehicles, etc.

DOT means the United States

Department of Transportation.

EPA means the Environmental

Protection Agency.

FHWA means the Federal Highway

Administration of DOT.

FHWAIFTA project, for the purpose of

this subpart, is any highway or transit

project which is proposed to receive

funding assistance and approval

through the Federal-Aid Highway

program or the Federal mass transit

program. or requires Federal Highway

Administration (FHWA) or Federal

Transit Administration fFTA) approval

for some aspect of the project, such as

connection to an interstate highway or

deviation from applicable design

standards on the interstate system.

FTA means the Federal Transit

Administration of DOT.

Forecast period with respect to a

transportation plan is the period

covered by the transportation plan

pursuant to 23 CFR -part 450.

Highway project is an undertaking to

implement or modify a highway facility

or highway-related program. Such an

undertaidng consists of all required

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

in the area are made; and

(3) Not restrict consideration of

alternatives -for other reasonably

foreseeable transportation

improvements.

Horizon year-isa year for which the

transportation plan describes the

envisioned transportation system

according to § 93.206.

Hot-spot analysis is an estimation -of

likely future localized GO and PMm

pollutant concentrations and a

comparison of those concentrations to

the national ambient airquality

standards. Pollutant -oncentrations to

be estimated should be basedon the

total emissions burden which may

result from the implementation of a

single, specific projectsummed

together with future baclgroand

concentrations (which cam be estimated

using the ratio of future to curmnt traffic

multiplied by the xatio 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 or maintenance

area, including, for example, congested

roadway intersections and highways or

transit terminals, and uses an-air quality

dispersion model -to determine the

effects of emissions on airiquality.

Incomplete data area means any

ozone nonattainmentaroa which EPA

has classified, in 40 CFR part 81, as an

incomplete data area. Increase the frequency or severity

means to - ause a location or region to

exceed a standard more often or to cause

a violation at a greater concentration

than previously existed and/or would

otherwise exist during the future period

in question, if the project were not

implemented.

ISTEA means the Intermodal Surface

Transportation Efficiency Act of 1991.

Maintenanoe area means any

geographic region of the United States

previously designated nonattainment

pursuant to the CAA Amendments of

1990 and subsequently redesignated to

attainment subject to the requirement lo

develop a maintenance plan under

section 175A of the CAA, as amended.

Maintenance period with respect to a

pollutant or pollutant precursor means

HeinOnline -- 58 Fed. Reg. 62235 1993
62236 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

that period of time beginning when a

State submits and EPA approves a

request under section 107(d) of the 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 20 years.

Metropolitan planning organization

(MPO) is that organization designated as

being responsible, together with the

State, for conducting the continuing,

cooperative, and comprehensive

planning process under 23 U.S.C. 134

and 49 U.S.C. 1607. It is the forum for

cooperative transportation decisionmaking.

Milestone has the meaning given in

sections 182(g)(1) and 189(c) of the

CAA. A milestone consists of an

emissions level and the date on which

it is required to be achieved.

Motor vehicle emissions budget is that

portion of the total allowable emissions

defined in a revision to the applicable

implementation plan (or in an

implementation plan revision which

was endorsed by the Governor or his or

her designee, subject to a public

hearing, and submitted to EPA, but not

yet approved by EPA) for a certain date

for the purpose of meeting reasonable

further progress milestones or

attainment or maintenance

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 a motor vehicle emissions

budget for oxides of nitrogen (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 for VOC

milestone requirements). The applicable

implementation plan for an ozone

nonattainment area includes a NOx

budget if NOx reductions are being

substituted for reductions in volatile

organic compounds in milestone years

required for reasonable further progress. National ambient air quality

standards (NAAQS) are those standards

established pursuant to section 109 of

the CAA.

NEPA means the National

Environmental Policy Act of 1969, as

amended (42 U.S.C. 4321 et seq.). NEPA process completion, for the

purposes of this subpart, with respect to

FHWA or FTA, means the point at

which there is a specific action to make

a determination that a project is

categorically excluded, to make a

Finding of No Significant Impact, or to

issue a record of decision on a Final

Environmental Impact Statement under

NEPA.

Nonattainment area means any

geographic region of the United States

which has been designated as

nonattainment under section 107 of the

CAA for any pollutant for which a

national ambient air quality standard

exists.

Not classified area means any carbon

monoxide nonattainment area which

EPA has not classified as either

moderate or serious.

Phase II of the interim period with

respect to a pollutant or pollutant

precursor means that period of time

after the effective date of this rule,

lasting until the earlier of the following:

submission to EPA of the relevant

control strategy implementation plan

revisions which have been endorsed by

the Governor (or his or her designee)

and have been subject to a public

hearing, or the date that the Clean Air

Act requires relevant control strategy

implementation plans to be submitted to

EPA, provided EPA has notified the

State, MPO, and DOT of the State's

failure to submit any such plans. The

precise end of Phase II of the interim

period is defined in § 93.128.

Project means a highway project or

transit project. Recipient of funds designated under

title 23 U.S.C. or the Federal Transit 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. Regionally significant project means a

transportation project (other than an

exempt project) that is on a facility

which serves regional transportation

needs (such as access to and from the

area outside of the region, major activity

centers in the region, major planned

developments such as new retail malls,

sports complexes, etc., or transportation

terminals as well as most terminals

themselves) and would normally be

included in the modeling of a

metropolitan area's transportation

network, including at a minimum all

principal arterial highways and all fixed

guideway transit facilities that offer an

alternative to regional highway travel.

Rural transport ozone nonattainment

area means an ozone nonattainment

area that does not include, and is not

adjacent to, any part of a Metropolitan

Statistical Area or, where one exists, a

Consolidated Metropolitan Statistical

Area (as defined by the United States

Bureau of the 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 area means any ozone

nonattainment area which EPA has

classified as submarginal in 40 CFR part

81.

Transit is mass transportation by bus,

rail, or other conveyance which

provides general or special service to

the public on a regular and continuing

basis. It does not include school buses

or charter or'sightseeing services.

Transit project is an undertaking to

implement or modify a transit facility or

transit-related program; purchase transit

vehicles or equipment; or provide

financial assistance for transit

operations. It does not include actions

that are solely within the jurisdiction of

local transit agencies, such as changes

in routes, schedules, or fares. It may

consist of several phases. For analytical

purposes, it must be defined inclusively

enough to:

(1) Connect logical termini and be of

sufficient length to address

environmental matters on a broad scope; (2) Have independent utility or

independent significance, i.e., be a

reasonable expenditure even if no

additional transportation improvements

in the area are made; and

(3) Not restrict consideration of

alternatives for other reasonably

foreseeable transportation

improvements.

Transitional area means 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 of time which begins after

submission to EPA of the relevant

control strategy implementation plan

which has been endorsed by the

Governor (or his or her designee) and

has been subject to a public hearing.

The transitional period lasts until EPA

takes final approval or disapproval

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 § 93.128.

Transportation control measure

(TCM) is any measure that is specifically

identified and committed to in the.

applicable implementation plan that is

either one of the types listed in § 108 of

the CAA, or any other measure for the

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62236 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62237

purpose of reducing emissions or

concentrations of air pollutants from

transportation sources by reducing

vehicle use or changing traffic flow or

congestion conditions. Notwithstanding

the above, vehicle technology-based,

fuel-based, and maintenance-based

measures which control the emissions

from vehicles under fixed traffic

conditions are not TCMs for the

purposes of this subpart.

Transportation improvement program

(TIP) means a staged, multiyear,

intermodal program of transportation

projects covering a metropolitan

planning area which is consistent with

the metropolitan transportation plan,

and developed pursuant to 23 CFR part

450.

Transportation plan means the

official intermodal metropolitan

transportation plan that is developed

through the metropolitan planning

process for the metropolitan planning

area, developed pursuant to 23 CFR part

450.

Transportation project is a highway

project or a transit project.

§ 93.102 Applicability.

(a) Action applicability. (1) Except as

provided for in paragraph (c) of this

section or § 93.134, conformity

determinations are required for:

(i) The adoption; acceptance, approval

or support of transportation plans

developed pursuant to 23 CFR part 450

or 49 CFR part 613 by an MPO or DOT;

(ii) The adoption, acceptance,

approval or support of TIPs developed

pursuant to 23 CFR part 450 or 49 CFR

part 613 by an MPO or DOT; and

(iii) The approval, funding, or

implementation of FHWA/FTA projects.

(2) Conformity determinations are not

required under this rule for individual

projects which are not FHWA/FTA

projects. However, § 93.129 applies to

such projects if they 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 of this 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 of this subpart

apply with respect to emissions of the

following precursor pollutants:

(i) Volatile organic compounds and

nitrogen oxides in ozone areas (unless

the Administrator determines under

section 182(f) of the CAA that additional

reductions of NOx 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 or the

director of the 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 a budget for such emissions

as part of the reasonable further

progress, attainment or maintenance

strategy.

(c) Limitations. (1) Projects subject to

this regulation for which the NEPA

process and a conformity determination

have been completed by FHWA or FTA

may proceed toward implementation

without further conformity

determinations if one of the following

major steps has occurred within the past

three years: NEPA process completion;

start of final design; acquisition of a

significant portion of the right-of-way;

or approval of the plans, specifications

and estimates. All phases of such

projects which were considered in the

conformity determination are also

included, if those 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 will be required if there

is a significant change in project design

concept and scope, if a supplemental

environmental document for air quality

purposes is initiated, or if no major

steps to advance the project have

occurred within the past three years.

§93.103 Priority.

When assisting or approving any

action with air quality-related

consequences, FHWA and FTA shall

give priority to the implementation of

those transportation 'portions of an

applicable implementation plan

prepared to attain and maintain the

NAAQS. This priority shall be

consistent with statutory requirements

for allocation of funds among States or

other jurisdictions.

§93.104 Frequency of conformity

determlnatiohs.

(a) Conformity determinations and

conformity redeterminations for

transportation plans, TIPs, and FHWA/

FTA projects must be made according to

the requirements of this section and the

applicable implementation plan.

(b) 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 of the

following, or the existing confrmity

determination will lapse:

(i) November 24, 1993;

(ii) EPA approval of an

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 of an

implementation plan which establishes

or revises 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 a new or

revised transportation plan, conformity

must be redetermined by the MPO and

DOT within six months from the date of

adoption of the 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.

HeinOnline -- 58 Fed. Reg. 62237 1993
62238 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

(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 if none of the following major

steps has occurred within the past three

years: NEPA process completion; start of

final design; acquisition of a significant

portion of the right-of-way; or approval

of the 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 of conflicts.

(1) The implementation plan revision

will include procedures to be

undertaken by MPOs, State departments

of transportation, and DOT with State

and local air quality agencies and EPA

before making conformity

determinations, and by State and local

air agencies and EPA with MPOs, State

departments of transportation, and DOT

in developing applicable

implementation plans.

(2) Before the implementation plan

revision is approved by EPA, MPOs and

State departments of transportation

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) Interagency consultation

procedures: General factors. (1) States

will provide in the implementation plan

well-defined consultation procedures

whereby representatives of the MPOs,

State and local air quality planning

agencies, State and local transportation

agencies, and other organizations with

responsibilities for developing,

submitting, or implementing provisions

of an implementation plan required by

the CAA must consult with each other

and with local or regional offices of

EPA, FHWA, and FTA on the

development of the implementation

plan, the transportation plan, the TIP,

and associated conformity

determinations.

(2) Interagency consultation

procedures will include at a minimum

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 of regular

consultation;

(iii) A process for circulating (or

providing ready access to) draft

documents and supporting materials for

comment before formal adoption or

publication;

(iv) The frequency of, or process for

convening, consultation meetings and

responsibilities for establishing meeting

agendas;

(v) A process for responding to the

significant comments of involved

agencies; and

(vi) A process for the development of

a list of the TCMs which are in the

applicable implementation plan.

(c) Interagency consultation

procedures: Specific processes.

Interagency consultation procedures

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

anal yses;

(ii Determining which minor arterials

and other transportation projects should

be considered "regionally significant"

for the purposes of regional emissions

analysis (in addition to those

functionally classified as principal

arterial or higher or fixed guideway

systems or extensions that offer an

alternative to regional highway travel),

and which projects should be

considered to have a significant change

in design concept and scope from the

transportation plan or TIP;

(iii)Evaluating whether projects

otherwise exempted from meeting the

requirements of this subpart (see

§§ 93.134 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 of TCMs

which are behind the schedule

established in the applicable

implementation plan have been

identified and are being overcome, and

whether State and local agencies with

influence over approvals or funding for

TCMs are giving maximum priority to

approval or funding for TCMs. This

process shall also consider whether

delays in TCM implementation

necessitate revisions to the applicable

implementation plan to remove TCMs

or substitute TCMs or other emission

reduction measures;

(v) Identifying, as required by

§ 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 of transportation plan

or TIP 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 or nonattainment

areas or air basins.

(3) Where the metropolitan planning

area does not include the entire

nonattainment or maintenance area, a

process involving the MPO and the

State department of transportation for

cooperative planning and analysis for

purposes of determining conformity of

all projects outside the metropolitan

area and within the nonattainment or

maintenance area. (4) A process to ensure that plans for

construction of regionally significant

projects which are not FHWA/FTA

projects (including projects for which

alternative locations, design concept

and scope, or the no-build option are

still being considered), including those

by recipients of funds designated under

title 23 U.S.C. or the Federal Transit

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 for consulting on the

design, schedule, and funding of

research and data collection efforts and

regional transportation model

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62238 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations'62239

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) Resolving conflicts. Conflicts

among State agencies or between State

agencies and an MPO shall be escalated

to the Governor if they cannot be

resolved by the heads of the involved

agencies. The State air agency has 14

calendar days to appeal to the Governor

after the State DOT or MPO has notified

the State air agency head of the

resolution of his or her comments. The

implementation plan revision required

by § 51.396 of this chapter shall define

the procedures for starting of the 14-day

clock. If the State air agency appeals to

the Governor, the final conformity

determination must have the

concurrence of the Governor. If the State

air agency does not appeal to the

Governor within 14 days, the MPO or

State department of transportation may

proceed with the final conformity

determination. The Governor may

delegate his or her role in this process,

but not to the head or staff of the State

or local air agency, State department of

transportation, State transportation

commission or board, or an MPO.

(e) Public consultation procedures. Affected agencies making conformity

determinations on transportation plans,

programs, and projects shall establish a

proactive public involvement process

which provides opportunity for public

review and comment prior to taking

formal action on a conformity

determination for all transportation

plans and TIPs, consistent with the

requirements of 23 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 for a transportation plan or TIP.

These agencies shall also provide

opportunity for public involvement in

conformity determinations for projects

where otherwise required by law.

§ 93.106 Content of transportation plans.

(a) Transportation plans adopted after

January 1, 1995 in serious, severe, or extreme ozone nonattainment areas and

in serious carbon monoxide

nonattainment areas. The transportation

plan must specifically describe the

transportation system envisioned for

certain future years which shall be

called horizon years.

(1) The agency or organization

developing the transportation plan may

choose any years to be horizon years,

subject to the following restrictions:

(i) Horizon years may be no more than

10 years apart.

(ii) The first horizon year may be no

more than 10 years from the base year

used to validate the transportation

demand planning model.

(iii) If the attainment year is in the

time span of the transportation plan, the

attainment year must be a horizon year.

(iv) The last horizon year must be the

last year of 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 of the

regionally significant additions or

modifications to the existing

transportation network which the

transportation plan envisions to be

operational in the horizon years.

Additions and modifications to the

highway network shall be sufficiently identified to indicate intersections with

existing regionally significant facilities,

and to determine their effect on route

options between transportation analysis

zones. Each added or modified highway

segment shall also be sufficiently identified in terms of its design concept

and design scope to allow modeling of

travel times under various traffic

volumes, consistent with the modeling

methods for area-wide transportation

analysis in use by the MPO. Transit

facilities, equipment, and services

envisioned for the future shall be

identified in terms of design concept,

design scope, and operating policies

sufficiently to allow modeling of their

transit ridership. The description of

additions and modifications to the

transportation network shall also be

sufficiently specific to show that there

is a reasonable relationship between

expected land use and the envisioned

transportation system; and

(iii) Other future transportation

policies, requirements, services, and

activities, including intermodal

activities, shall be described.

(b) Moderate areas reclassified to

serious. Ozone or CO nonattainment

areas which are reclassified from

moderate to serious must meet the

requirements of paragraph (a) of this

section within two years from the date

of reclassification.

(c) Transportation plans for other

areas. Transportation plans for other

areas must meet the requirements of

paragraph (a) of this section at least to

the extent it has been the previous

practice of the MPO to prepare plans

which meet those requirements.

Otherwise, 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 of this

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 of specificity required in

the transportation plan and the specific

travel network assumed for air quality

modeling do not preclude the

consideration of alternatives in the

NEPA process or other project

development studies. Should the NEPA

process result in a project with design

concept and scope significantly

different from that in the transportation

plan or TIP, the project must meet the

criteria in §§ 93.109 through 93.127 for

projects not from a TIP before NEPA

process completion.

§93.108 Fiscal constraints for

transportation plans and TIPs.

Transportation plans and TIPs must

be fiscally constrained consistent with

DOT's metropolitan planning

regulations at 23 CFR part 450 in order

to be found in conformity.

§93.109 Criteria and procedures for

determining conformity of transportation plans, programs, and projects: General.

(a) In order to 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) of this section,

and must comply with all applicable

conformity requirements of

implementation plans and of court

orders for the area which pertain

specifically to 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 §§ 93.110

HeinOnline -- 58 Fed. Reg. 62239 1993
No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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 N of 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 latest planning

assumptions.

93.111 The conformity determination must

be based on the latest emission

estimation model available.

93.112 The MPO must make the conformity

determination according to the

consultation procedures of this rule and

the implementation plan revision

required by § 51.396 of this chapter.

93.113 The transportation plan, TIP, or

FHWA/FTA project which is not from a

conforming plan and TIP must provide

for the timely implementation of TCMs

from the applicable implementation

plan.

93.114 There must be a currently

conforming transportation plan and

currently conforming TIP at the time of

project approval.

93.115 The project must come from a

conforming transportation plan and

program.

93.116 The FHWA/FTA project must not

cause or contribute to any new localized

CO or PMjo violations or increase the

frequency or severity of any existing CO

or PM1o violations in CO and PM~o

nonattainment and maintenance areas.

93.117 The FHWA/FTA project must

comply with PM1o control 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 or implementation

plan submission.

93.119 The TIP must be consistent with the

motor vehicle emissions 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 or reduce the severity and

number of localized CO violations in the

area substantially affected by the project

(in CO nonattainment areas).

93.122 The transportation plan must

contribute to emissions reductions in ozone and CO nonattainment 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 and TIP

must contribute to emissions reductions

in ozone and CO nonattainment areas. 93.125 The transportation plan must

contribute to emission reductions or must not increase emissions in PM1o and

NO2 nonattainment areas.

93.126 The TIP must contribute to emission

reductions or must not increase

emissions in PM1 o and NO 2

nonattainment areas. 93.127 The project which is not from a

conforming transportation plan and TIP

must contribute to emission reductions

or must not increase emissions in PMIo

and NO2 nonattainment 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 be based upon the most recent

planning assumptions in force at the

time of the conformity determination.

This criterion applies during all periods.

The conformity determination must

satisfy the requirements of paragraphs

(b) through (fJ of this section.

(b) Assumptions must be derived from

the estimates of current and future

population, employment, travel, and

congestion most recently developed by

the MPO or other agency authorized to

make such estimates and approved by

the MPO. The conformity determination

must also be based on the latest

assumptions about current and future

background concentrations.

(c) The conformity determination for

each transportation plan and TIP must

discuss how transit operating policies

(including fares and service levels) and

assumed transit ridership have changed

since the previous conformity

determination.

(d) The conformity determination

must include reasonable assumptions

about transit service and increases in

transit fares and road and bridge tolls

over time.

(e) The conformity determination

must use the latest existing information

regarding the effectiveness of the TCMs

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 Criteria and 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 if the most current version of

the motor vehicle emissions model

specified by EPA for use in the

preparation or revision of

implementation plans in that State or

area is used for the conformity analysis.

Where EMFAC is the motor vehicle

emissions model used in preparing or

revising the applicable implementation

plan, new versions must be approved by

EPA before they are used in the

conformity analysis.

(b) EPA will consult with DOT to

establish a grace period following the

specification of any-new model.

(1) The grace period will be no less

than three months and no more than 24

months after notice of availability is

published in the Federal Register.

(2) The length of the grace period will

depend on the degree of change in the

model and the scope of re-planning

likely to be necessary by MPOs in order

to assure conformity. If the grace period

will be longer than three months, EPA

will announce the appropriate grace

period in the Federal Register.

(c) Conformity analyses for which the

emissions analysis was begun during

the grace period or before the Federal

Register notice of availability of the

latest emission model may continue to

use the previous version of the model

62240 Federal Register / Vol. 58,

HeinOnline -- 58 Fed. Reg. 62240 1993
Federal Register 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 if the analysis was begun

during the grace period or before the

Federal Register notice of availability,

provided no more than three years have

passed since the draft environmental

document was issued.

§ 93.112 Criteria and 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 of this chapter, and

according to the public involvement

procedures established by the MPO in

compliance with 23 CFR part 450. This

criterion applies during all periods.

Until the implementation plan revision

required by § 51.396 of this chapter 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 has been approved by

EPA, this criterion is satisfied if the

conformity determination is made

consistent with the implementation

vlan's consultation requirements.

§93.113 Criteria and procedures: Timely imolementaton of TCM&.

(a) The transportation plan, TIP, or

FHWA/FTA project which is not from a

conforming plan and TIP must provide

for the timely implementation of TCMs

from the applicable implementation

plan. This criterion applies during all

periods.

(b) For transportation plans, this

criterion is satisfied if the following two

conditions are met:

(1) The transportation plan, in

describing the envisioned future

transportation system, provides for the

timely completion or implementation of

all TCMs in the applicable

implementation plan which are eligible

for funding under title 23 U.S.C. or the

Federal Transit Act, consistent with

schedules included in the applicable

implementation plan.

(2) Nothing in the transportation plan

interferes with the implementation of

any TCM in the applicable

implementation plan.

(c) For TIPs, this criterion is satisfied

if the following conditions are met:

(1) An examination of the specific

steps and funding source(s) needed to

fully implement each TCM indicates

that TCMs which are eligible for

funding under title 23 U.S.C. or the

Federal Transit 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 MPO and

DOT have determined that past

obstacles to implementation of the

TCMs have been identified and have

been or are being overcome, and that all

State and local agencies with influence

over approvals or funding for TCMs are

giving maximum priority to approval or

funding of TCMs over other projects

within their control, including projects

in locations outside the nonattainment

or maintenance area.

(2) If TCMs in the applicable

implementation plan have previously

been programmed for Federal funding

but the funds have not been obligated

and the TCMs are behind the schedule

in the implementation plan, then the

TIP cannot be found to conform if the

funds intended for those TCMs are

reallocated to projects in the TIP other

than TCMs, or if there are no other

TCMs in the TIP, if the funds are

reallocated to projects in the TIP other

than projects which are eligible for

Federal funding under ISTEA's

Congestion Mitigation and Air Quality

Improvement Program.

(3) Nothing in the TIP may interfere

with the implementation of any TCM in

the applicable implementation plan.

(d) For FHWA/FTA projects which

are not from a conforming

transportation plan and TIP, this

criterion is satisfied if the project does

not interfere with the implementation of

any TCM in the applicable

implementation plan.

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

There must be a currently conforming

transportation plan and currently

conforming TIP at the time of project

approval. This criterion applies during

all periods. It is satisfied if the current

transportation plan and TIP have been

found to conform to the applicable

implementation plan by the MPO and

DOT according to the procedures of this

subpart. Only one conforming

transportation plan or TIP may exist in

an area at any time; conformity

determinations of a previous

transportation plan or TIP expire once

the current plan or TIP is found to

conform by DOT. The conformity

determination on a transportation plan

or TIP will also lapse if conformity is

not determined according to the

frequency requirements of § 93.104.

§ 93.115 Criteria and procedures: Projects from a 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 in Table I for a

project not from a conforming

transportation plan and TIP. A project is

considered to be from a conforming

transportation plan if it meets the

requirements of paragraph (b) of this

section and from a conforming program

-if it meets the requirements of paragraph

(c) of this section.

(b) A project is considered to be from

a conforming transportation plan if one

of the following conditions applies:

(1) For projects which are required to

be identified in the transportation plan

in order to satisfy § 93.106, the project

is specifically included in the

conforming transportation plan and the

project's design concept and scope have

not changed significantly from those

which were described in the

transportation plan, or in a manner

which would significantly impact use of

the facility; or

(2) For projects which are not

required to be specifically identified in

the transportation plan, the project is

identified in the conforming

transportation plan, or is consistent

with the policies and purpose of the

transportation plan and will not

interfere with other projects specifically

included in the transportation plan.

(c) A project is considered to be from

a conforming program if the following

econditions are met:

(1) The project is included in the

conforming TIP and the design concept

and scope of the project were adequate

at the time of the TIP conformity

determination to determine its

contribution to the TIP's regional

emissions and have not changed

significantly from those which were

described in the TIP, or in a manner

which would significantly impact use of

the facility; and (2) If the TIP describes a project

design concept and scope which

includes project-level emissions

mitigation or control measures, written

commitments to implement such

measures must be obtained from the

project sponsor and/or operator as

required by § 93.133(a) in order for the

project to be considered from a

conforming program. Any change in

these mitigation or control measures

that would significantly reduce their

effectiveness constitutes a change in the

design concept and scope of the project.

§ 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 or PMo violations or increase the

frequency or severity of any existing CO

HeinOnline -- 58 Fed. Reg. 62241 1993
62242 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

or PM,,, violations in CO and PMKO

nonattainment and maintenance areas.

This criterion applies during all periods.

This criterion is satisfied if it is

demonstrated that no new local

violations will be created and the

severity or number of existing violations

will not be increased as a result of the

project.

(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 of the

type identified by § 93.131(a) or

§ 93.131(d), this criterion may be

satisfied if consideration of local factors

clearly demonstrates that no local

violations presently exist and no new local violations will be created as a

result of the 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 if control measures (for the

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 for the

project.

§93.118 Criteria and procedures: Motor

vehicle emissions 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) of this section are

met:

(b) A regional emissions analysis shall

be performed as follows:

(1) The regional analysis shall

estimate emissions of any of the

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 of NOx would not

contribute to attainment;

(iii) CO;

(iv) PM 0 (and its precursors VOC

and/or NO. if the 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 of the 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 of the

transportation plan provided they are

not more than ten years apart and

provided the analysis is performed for

the last year of the plan's forecast

period. If the attainment year is in the

time span of the 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 of the

applicable pollutants or pollutant

precursors in paragraph (b)(1) of this

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) If the 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 or equal to the motor vehicle

emissions budget established by the

applicable implementation plan or

implementation plan submission for the

attainment year. If emissions budgets

are established for years after the

attainment year, emissions in each

analysis year or horizon year must be

less than or equal to the motor vehicle

emissions budget for that year, if any, 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

vehicle emissions 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 if the requirements in

paragraphs (b) and (c) of this 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 of the TIP is

consistent with the Federal funding

which may be reasonably 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) 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 TIP contains all projects which

must be started in the TIP's timeframe

in order to achieve the highway and

transit system envisioned by the

1993 / Rules and Regulations

HeinOnline -- 58 Fed. Reg. 62242 1993
Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62243

transportation plan in each of its

horizon years;

(ii) All TIP projects which are

regionally significant are part of the

specific highway or transit 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) If the requirements in paragraphs

.(b)(1) and (b)(2) of this section are not

met, then:

(i) The TIP may 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) of this

section are met. Once the revised plan

has been found to conform, this

criterion is met for the TIP with no

additional analysis except a

demonstration that the TIP meets the

requirements of paragraphs (b)(1) and

(b)(2) of this section.

(c) For areas with a transportation

plan that does not meet the content

requirements of S 93.106(a), a regional

emissions analysis must meet all of the

following requirements:

(1) The regional 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 of the transportation plan;

(2) The analysis methodology shall

meet the requirements of S 93.130(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 emissions budget (project not from

a plan andTIP).

(a) The project which is not from a

conforming transportation plan and a

conforming 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. It is 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 other regionally 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 a conforming

transportation plan that meets the

content requirements of S 93.106(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. This requires a

demonstration that:

(i) Allocating funds to the project will

not delay the implementation of projects

in the transportation plan or TIP which

are necessary to achieve the highway

and transit system envisioned by the

transportation plan in each of its

horizon years;

(ii) The project Is not regionally

significant or is part of the 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) If the requirements in paragraph

(b)(1) of this section are not met, a

regional emissions analysis must be

performed as follows:

(i) The analysis methodology shall

meet the 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 shall meet

the requirements of §§ 93.118(b)(1),

93.118(b)(4), and 93.118(c).

(c) For areas with a transportation

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 Criteria ard procedures:

Localized CO violations (hot spots) In the

Interim period.

(a) Each FHWA/FTA project must

eliminate or reduce the severity and

number of localized CO violations in the

area substantially affected by the project

(in CO nonattainment areas). This

criterion 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 or reduced

in severity and number as a result of the

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 of the

type identified by S 93.131(a), this

criterion may be satisfied if

consideration of local 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 In ozone 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 § 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 if a regional

emissions analysis is performed as

described in paragraphs (b) through (f)

of this 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 of the transportation plan's forecast

period shall also be an analysis year.

(c) Define the 'Baseline' scenario for

each of the analysis years to be the

future transportation system that would

result from current programs, composed

of the following (except that projects

listed in §§ 93.134 and 93.135 need not

be explicitly considered):

HeinOnline -- 58 Fed. Reg. 62243 1993
No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

(1) All in-p lace regionally significant

highway and transit facilities, services

and activities;

(2) All ongoing travel demand

management or transportation system

management activities; and

(3) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first three years

of the previously conforming

transportation plan and/or TIP; or have

completed the NEPA process. (For the

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 of final design;

acquisition of a 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) of this section.)

(d) Define the 'Action' scenario for

each of the 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 in the

nonattainment area. It will include the

following (except that projects listed in

§§ 93.134 and 93.135 need not be

explicitly considered):

(1) All facilities, services, and

activities in the 'Baseline' scenario;

(2) Completion of all TCMs and

regionally significant projects (including

facilities, services, and activities)

specifically identified in the proposed

transportation plan which will be

operational or in effect in the analysis

year, except that regulatory TCMs may

not be assumed to begin at a future time

unless the regulation is already adopted

by the enforcing jurisdiction or the TCM

is identified in the applicable

implementation plan;

(3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or

sponsoring agency since the last

conformity determination on the transportation plan;. {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 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 of all expected

regionally significant highway and

transit projects which are not from a

conforming transportation plan and TIP;

and

(6) Completion of all expected

regionally significant non-FHWA/FTA

highway and transit projects that have

clear funding sources and commitments

leading toward their implementation

and completion by the analysis year. 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 in 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

of the analysis years according to the

requirements of § 93.130. Emissions in

milestone years which are between the

analysis years may be determined by

interpolation. (f) This criterion is met if the regional

VOC and NO. emissions (for ozone

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.

§93.123 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 § 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 if a regional emissions analysis

is performed as described in paragraphs

(b) through (1) of this 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 no more than ten years apart.

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 6r earlier, the second

analysis year shall be at least five years

beyond the first analysis year. The last

year of the 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 of the following (except that

projects listed in §§ 93.134 and 93.135

need not be explicitly considered):

(1) All in-place regionally significant

highway and transit facilities, services

and activities;

(2) All ongoing travel demand

management or transportation system

management activities; and - (3) Completion of all regionally

significant projects, regardless of

funding source, which are currently

under construction or are undergoing

right-of-way acquisition (except for

hardship acquisition and protective

buying); come from the first three years

of the previously conforming TIP; or

have completed the NEPA process. (For

the first conformity determination on

the TIP 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 of final design;

acquisition of a 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) of this section.)

(d) Define the 'Action' scenario as the

future transportation system that will

result from the implementation of the

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 §§ 93.134 and 93.135 need not be

explicitly considered):

(1) All facilities, services, and

activities in the 'Baseline' scenario;

(2) Completion of all TCMs and

regionally significant projects (including

facilities, services, and activities)

included in the proposed TIP, 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

62244 Federal Register / Vol. 58,

HeinOnline -- 58 Fed. Reg. 62244 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24,

contained in the applicable

implementation plan;

(3) All travel demand management

programs and transportation system

management activities known to the

MPO, but not included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

have been fully adopted and/or funded

by the enforcing jurisdiction or

sponsoring agency since the last

conformity determination on the TIP;

(4) The incremental effects of any

travel demand management programs

and transportation system management

activities known to the MPO, but not

included in the applicable

implementation plan or utilizing any

Federal funding or approval, which

were adopted and/or funded prior to the

date of the last conformity

determination 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 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

of the 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 can reasonably be expected to be

true in the 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.

§93.124 Criteria and procedures: Interim

period reductions for ozone and CO areas

(project not from 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 if a 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 of a 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 Criteria and procedures: Interim

period reductions for PM o and NO2 areas

(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 of all

projects contained in a new or revised

transportation plan. This criterion may

be satisfied if the requirements of either

paragraph (b) or (c) of this section are

met.

(b) Demonstrate that implementation

of the plan and all other regionally

significant projects expected in the

nonattainment area will contribute to

reductions in emissions of PM,0 in a

PM,0 nonattainment area (and of each

transportation-related precursor of PM,o

in PMo nonattainment areas if the 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 of NO,

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 (for NO 2 areas) or

four years and six months following the

date of designation (for PM,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 or earlier, the second

analysis year shall be at least five years

beyond the first analysis year. The last

year of the 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 § J3.122(c), and the "Action"

scenario, as defined in § 93.122(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

PM1o emissions in a PM,o

nonattainment area (and transportationrelated precursors of PM,o in PMo

nonattainment areas if the 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 PMo nonattainment

problem and has so notified the MPO

and DOT) and in NO,, emissions in an

NO 2 nonattainment area. The analysis

must be performed for each of the

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 (if any),

and the first of the analysis years.

Emissions in milestone years which are

between the analysis years may be

determined by interpolation.

(4) Demonstrate that the regional PMo

emissions and PM,0 precursor

emissions, where applicable, (for PM,o

nonattainment areas) and NO,

emissions (for NO2 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 (if any)

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 of PMo in a PMmo

nonattainment area (and transportationrelated precursors of PM,0 in PM,0

nonattainment areas if the 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 PMio 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 follows:

1993 / Rules and Regulations 62245

HeinOnline -- 58 Fed. Reg. 62245 1993
62246 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

(1) Determine the baseline regional

emissions of PM10 and PMo precursors,

where applicable (for PM, 0

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 of this chapter defines the

baseline emissions for a PMio 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 of the

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 be estimated

for analysis years which are no more

than ten years apart. The first analysis

year shall be no later than 1996 (for NO2

areas) or four years and six months

following the date of designation (for

PM,o 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 of the 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) of this section are no

greater than baseline emissions of PM,o

and PMo precursors, where applicable

(for PM, 0 nonattainment areas) or NO,

(for NO2 nonattainment areas) from

highway and transit sources.

§93.126 Criteria and procedures: Interim period reductions for PMo and NO2 areas

(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 to the net

effect on emissions of all projects

contained in a new or revised TIP. This

criterion may be satisfied if the

requirements of either paragraph (b) or

paragraph (c) of this section are met.

(b) Demonstrate that implementation

of the plan and TIP and all other

regionally significant projects expected

in the nonattainment area will

contribute to reductions in emissions of

PM, 0 in a PM1o nonattainment area (and

transportation-related precursors of

PM1o in PM1o nonattainment areas if the

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 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 of the 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 of PMo in a PMo

nonattainment area (and transportationrelated precursors of PMo in PMo

nonattainment areas if the 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 of NO, 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 reductions for PM,o and NO2 areas

(project not 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 if a regional emissions analysis is

performed which meets the

requirements of § 93.125 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 of a project currently in

the transportation plan or TIP, and

§ 93.125(b) is used to demonstrate

satisfaction of this 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 Transition from the Interim period to the control strategy 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 year from the date

the Clean Air Act requires submission of

such control strategy implementation

plan revision. Otherwise, the conformity

status of the 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 of the

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 of the control strategy

implementation plan revision, new

transportation plans and TIPs shall

demonstrate conformity according to

transitional period criteria and

procedures.

(2) If EPA 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)

of this section. if EPA 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 of paragraph

HeinOnline -- 58 Fed. Reg. 62246 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62247

(a)(1) of this 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 have not submitted a

control strategy implementation plan

revision. (1) For areas whose Clean Air

Act deadline for submission of the

control strategy implementation plan

revision is after November 24, 1993 and

EPA has notified the State, MPO, and

DOT of the 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 of the control

strategy implementation plan was before

November 24, 1993 and EPA has made

a finding of failure to submit a control

strategy implementation plan revision,

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

(ii) The conformity status of the

transportation plan and TIP shall lapse

November 25, 1994, and no new projectlevel conformity determinations may be

made.

(c) Areas which have not submitted a

complete control strategy

implementation plan revision. (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

TIPs may be found to conform

beginning 120 days after EPA's

incompleteness finding; 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.

(iii) Notwithstanding paragraphs (c)(1)

(i) and (ii) of this section, if EPA 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 of paragraph (a)(1) of this

section shall apply for a period of 12

months following the date of the

incompleteness determination. The

conformity status of the transportation

plan and TIP shall lapse 12 months

following the date of the 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

TIPs may be found to conform

beginning March 24, 1994; and

(ii) The conformity status of the

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) of this section, if EPA notes

in its incompleteness finding that the

submittal would have been considered

complete with respect to requiremen ts

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 of paragraph (d)(1) of this

section shall apply for a period of 12

months following the date of the

incompleteness determination. The

conformity status of the transportation

plan and TIP shall lapse 12 months

following the date of the incompleteness

determination unless another control

strategy implementation plan revision is

submitted to EPA and found to be

complete.

(d) Areas which submitted a control

strategy implementation plan before

November 24, 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 of new

transportation plans and TIPs may be

demonstrated according to Phase II

interim period criteria and procedures

until February 22,1994, provided the

conformity of such transportation plans

and TIPs is redetermined according to

transitional period criteria and

procedures as required in paragraph

(d)(1) of this 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

of the 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)

of this section, if EPA 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 for emission

reductions if all committed measures

had been submitted in enforceable form

as required by Clean Air Act

§ 110(a)(2)(A), the provisions of

paragraph (d)(1) of this section shall

apply for 12 months following

November 24, 1993. The conformity

status of the 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. If the 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) of this 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 must be

HeinOnline -- 58 Fed. Reg. 62247 1993
62248 Federal Register / Vol. 58, N6. 225 / Wednesday, November 24, 1993 / Rules and Regulations

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 or the 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

§ 93.105(d), which applies for any State

air agency comments on a conformity

determination.

(f) Redetermination of conformity of

the existing transportation plan and TIP

according to the transitional period

criteria and procedures. (1) The

redetermination of the conformity of the

existing transportation plan and TIP

according to transitional period criteria

and procedures (as required 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 of the

existing transportation plan and TIP for

its projections of motor vehicle

emissions; and

(ii) 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) of this

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

must be determined according to all the

applicable criteria and procedures of

§ 93.109 within three years of the last

determination which did not rely on

paragraph (f(1) of this section.

(g) Ozone nonattainment areas. (1)

The requirements of paragraph (b)(1) of

this section apply if a serious or above

ozone nonattainment area has not

submitted the implementation plan

revisions which Clean Air Act sections

182(c)(2)(A) and 182(c)(2)(B) require to

be submitted to EPA November 15,

1994, even if the area has submitted the

implementation plan revision which

Clean Air Act section 182(b)(1) requires

to be submitted to EPA November 15,

1993.

(2) The requirements of paragraph

(b)(1) of this 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 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 of paragraph (b)(1) of this

section apply in this case even if the

area has submitted the 15% emission

reduction demonstration required by

Clean Air Act section 182(b)(1).

(3) The requirements of paragraph (a)

of this 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 areas which are

not required to demonstrate reasonable

further progress and attainment. If an

area listed in § 93.136 submits a control

strategy implementation plan revision,

the requirements of paragraphs (a) and

(e) of this section apply. Because the

areas listed in § 93.136 are not required

to demonstrate reasonable further

progress and attainment and therefore

have no Clean Air Act deadline, the

provisions of paragraph (b) of this

section do not apply to these areas at

any time.

(i) Maintenance plans. If a control

strategy implementation plan revision is

not submitted to EPA but a maintenance

plan required by Clean Air Act section

175A is submitted to EPA, the

requirements of paragraph (a) or (d) of

this section apply, with the

maintenance plan submission treated as

a "control strategy implementation plan

revision" for the purposes of those

requirements.

§ 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

No recipient of federal 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 § 93.114 and the

requirements of one of the following

paragraphs (a) through (e) of this 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 of MPO 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 of the interim

period, the, project contributes to

emissions reductions or does not

increase emissions consistent with the

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 of both

paragraphs (c) and (d) of this section.

§ 93.130 Procedures for determining

regional transportation-related emissions.

(a) General requirements. (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 the MPO 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. The effects of

TCMs and similar projects that are not

regionally significant may also be

estimated in accordance with reasonable

professional practice.

(2) The emissions analysis may not

include for emissions reduction credit

any TCMs which have been delayed

beyond the scheduled date(s) until such

time as implementation has been

assured. If the 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 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

HeinOnline -- 58 Fed. Reg. 62248 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62249

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 if an opt-in to a Federally

enforced program has been approved by

EPA, if EPA has promulgated the

program (if the control program is a

Federal responsibility, such as tailpipe

standards), or if the Clean Air Act

requires the program without need for

individual State action and without any

discretionary authority for EPA to set its

stringency, delay its effective date, or

not implement the program.

(4) Notwithstanding paragraph (a)(3)

of this 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 not received final EPA

action in the form of a finding of

incompleteness, approval, or

disapproval may be assumed for

emission reduction credit for the

purpose of demonstrating that the

requirements of §§ 93.118 through

93.120 are satisfied.

(5) A regional emissions analysis for

the purpose of satisfying the

requirements of §§ 93.122 through 93.124 may account for the programs in

paragraph (a)(4) of this section, but the

same assumptions about these programs

shall be used for both the "Baseline"

and "Action" scenarios.

(b) Serious, severe, and extreme ozone

nonattainment areas and serious carbon

monoxide areas after January 1, 1995.

Estimates of regional transportationrelated emissions used to support

conformity determinations must be

made according to procedures which

meet the requirements in paragraphs (b)

(1) through (5) of this 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 of the 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 be in.

accordance with acceptable professional

practice, and reasonable for purposes of

emission estimation;

(ii) The network-based model(s) must

be validated against ground counts for a

base year that is not more than 10 years

prior to the date of the 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 of assignment 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 be used 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 to pricing,

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 of land

development and use and the future

transportation system for which

emissions are being estimated. Reliance

on a formal land-use model is not

specifically required but is encouraged; (ix) A dependence of trip generation

on the accessibility of destinations via

the transportation system (including pricing) is strongly encouraged but not

specifically required, unless the

network model is capable of such

determinations and the necessary

information is available;

(x) A dependence of regional

economic and population growth on the

accessibility of destinations via the

transportation system is strongly

encouraged but not specifically

required, unless the network model is

capable of such 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 of vehicle

miles traveled shall be considered the

primary measure of vehicle miles

traveled within the portion of the

nonattainment or maintenance area and

for the functional classes of roadways

included in HPMS, for urban areas

which are sampled on a separate urban

area basis. A factor (or factors) shall be

developed to reconcile and calibrate the

network-based model estimates of

vehicle miles traveled in the base year

of its 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 of the HPMS and the modeled

network description. Departure from

these procedures is permitted with the 'concurrence of DOT 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 of travel 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

of travel in a hot stabilized engine

mode, may be modified after

interagency consultation according to

9 93.105 if the 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) Areas which are not serious,

severe, or extreme ozone nonattainment

areas or serious carbon monoxide areas,

or before January 1, 1995. (1) Procedures

which satisfy some or all of the

requirements of paragraph (a) of this

section shall be used in all areas not

subject to paragraph (a) of this section

in which those procedures have been

the previous practice of the MPO.

(2) Regional emissions may be

estimated by methods which do not

explicitly or comprbhensively account

for the influence of land use and

transportation infrastructure on vehicle

miles traveled and traffic speeds and

congestion. Such methods must account

for VMT growth by extrapolating

historical VMT or projecting future

VMT by considering growth in

population and historical growth trends

for vehicle miles travelled per person.

These methods must also consider

future economic activity, transit

HeinOnline -- 58 Fed. Reg. 62249 1993
62250Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations

alternatives, and transportation system

policies.

(d) Projects not from a conforming

plan and TIP in isolated rural

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 of any MPO's

metropolitan transportation plan or TIP

(because the nonattainment or

maintenance area or portion thereof

does not contain a metropolitan

planning area or portion of a

metropolitan planning area and is not

part of a 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 (or portion 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 or maintenance area

(or portion thereofn and supports the

most recent conformity determination

made according to the requirements of

§§ 93.120, 93.124, or 93.127 (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) PMo from 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 PM2 o as a contributor to

the nonattainment problem, the regional

PM20 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 for determining

localized CO and PMio 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 § 93.105 and with

the approval of the 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 of current

violation or possible current violation;

(2) For those intersections at Level-ofService D, E, or F, or those that will

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 of the 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 of the 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 of the "Guideline"

models is practicable and reasonable

given the potential for violations.

(b) In cases other than those described

in paragraph (a) of this 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) 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

rail terminals or transfer points based on

appropriate modeling of various

terminal sizes, configurations, and

activity levels. The requirements of this

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 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 operator to the

implementation of such measures, as

required by § 93.133(a).

(g) CO and PM, 0 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 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 Using the motor vehicle

emissions budget In the applicable

Implementation plan (or Implementation

plan submission).

(a) In interpreting an applicable

implementation plan (or

implementation plan submission) with

respect to its motor vehicle emissions

budget(s), the MPO and DOT may not

HeinOnline -- 58 Fed. Reg. 62250 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62251

infer additions to the budget(s) that are

not explicitly intended by the

implementation plan (or submission).

Unless the implementation plan

explicitly quantifies the amount by

which motor vehicle emissions could be

higher while still allowing a

demonstration of compliance with the

milestone, attainment, or maintenance

requirement and explicitly states an

intent that some or all of this additional

amount should be available to the MPO

and DOT in the emission budget for

conformity purposes, the MPO may not

interpret the budget to be higher than

the implementation plan's estimate of

future emissions. This applies in

particular to applicable implementation

plans (or submissions) which

demonstrate that after implementation

of control measures in the

implementation plan:

(1) Emissions from all sources will be

less than the total emissions that would

be consistent with a required

demonstration of an emissions

reduction milestone;

(2) Emissions from all sources will

result in achieving attainment prior to

the attainment deadline and/or ambient

concentrations in the attainment

deadline year will be lower than needed

to demonstrate attainment; or

(3) Emissions will be lower than

needed to provide for continued

maintenance.

(b) If an 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

it is endorsed by the Governor and has

been subject to a public hearing, may be

used for the purposes of transportation

conformity before it is approved by

EPA.

(c) A conformity demonstration shall

not trade emissions among budgets

which the applicable implementation

plan (or implementation 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) If the applicable implementation

plan (or implementation plan

submission) estimates future emissions

by geographic subarea of the

nonattainment area, the MPO and DOT

are not required to consider this to

establish subarea budgets, unless the

applicable implementation plan (or

implementation plan submission)

explicitly indicates an intent to create

such subarea budgets for the purposes of

conformity.

(e) If a nonattainment area includes,

more than one MPO, the SIP may

establish motor vehicle emissions

budgets for each MPO, or else the MPOs

must collectively make a conformity

determination for the entire

nonattainment area.

§ 93.133 Enforceability of design concept and scope and project-level mitigation and

control measures.

(a) Prior to determining that a

transportation project is in conformity,

the MPO. other recipient of funds

designated under title 23 U.S.C. or the

Federal Transit Act, FHWA, or FTA

must obtain from the project sponsor

and/or operator written commitments to

implement in the construction of the

project and operation of the'resulting

facility or service any project-level

mitigation or control measures which

are identified as conditions for NEPA

process completion with respect to local

PM1o or 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 or TIP and included

in the 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 of this chapter shall

provide that written commitments to

mitigation measures must be obtained

prior to a positive conformity

determination, and that project sponsors

must comply with such commitments.

(d) During the control strategy and

maintenance periods, if the MPO or

project sponsor believes the mitigation

or control measure is no longer

necessary for conformity, the project

sponsor or operator may be relieved of

its obligation to implement the

mitigation or control measure if it can

demonstrate that the 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 DOT must

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 for the

transportation plan, TIP, and project are

still valid.

§93.134 Exempt projects.

Notwithstanding the other

requirements of this subpart, highway

and transit projects of the types listed in

Table 2 are exempt from the

requirement that a conformity

determination be made. Such projects

may proceed toward implementation

even in the absence of a conforming

transportation plan and TIP. A

particular action of the type listed in

Table 2 is not exempt if the MPO in

consultation with other agencies (see

§ 93.105(c)(1)(iii)), the EPA, and the

FHWA (in the case of a highway project)

or the FTA (in the case of a transit

project) concur that it has potentially

adverse emissions impacts for any

reason. States and MPOs must ensure

that exempt projects do not interfere

with TCM implementation.

Safety

Railroad/highway crossing.

Hazard elimination program.

Safer non-Federal-aid system roads.

Shoulder improvements.

Increasing sight distance.

Safety improvement program.

Traffic control devices and operating assistance other than signalization projects.

Railroadlhighway crossing warning devices.

Guardrails, median barriers, crash cushions.

HeinOnline -- 58 Fed. Reg. 62251 1993
62252 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 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 urbanized area.

Lighting Improvements. Widening narrow pavements or reconstructing bridges (no additional travel lanes). Emergency truck pullovers.

Mass Transit

Operating assistance to transit agencies. Purchase of support vehicles.

Rehabilitation of transit vehicles

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 of transit buildings and structures (e.g., rail or bus buildings, storage and maintenance facilities, stations, terminals, and ancillary structures). Rehabilitation or reconstruction of track structures, track, and trackbed in existing rights-of-way. Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet'.

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

Air Quality

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

Bicycle and pedestrian facilities.

Other

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

Planning and technical studies.

Grants for training and research programs. Planning activities conducted pursuant to titles 23 and 49 U.S.C.

Federal-aid systems revisions.

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

Noise attenuation.

Advance land acquisitions (23 CFR 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, or terrorist acts, except projects Involving substantial functional, locational or capac- ity changes.

' In PM10 nonattainment or maintenance areas, such projects are exempt only If they are In compliance with control measures In the applicable Implementation plan.

§93.135 Projects exempt from regional

emissions snalyses.

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 PM1o 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

§ 93.105(c)(1)(iii)), the EPA, and the

FHWA (in the case of a highway project)

or the FTA (in the case of a transit

project) concur that it has potential

regional impacts for any reason.

TABLE 3.-PROJECTS EXEMPT FROM

REGIONAL EMISSIONS ANALYSES

D

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.

S93.136 Special provisions for

nonattainment 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 of 12.7 ppm or less; and

(7) Not classified CO areas.

(b) Default conformity procedures.

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 (not from a conforming plan

and TIP) in lieu of the procedures in

§§ 93.118 through 93.120, except as

otherwise provided in paragraph (c) of

this section.

(c) Optional conformity procedures.

The State or MPO may voluntarily

develop an attainment demonstration

HeinOnline -- 58 Fed. Reg. 62252 1993
Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62253

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 through 93.120 apply in lieu of the

attainment dimonstration. Once EPA procedures in §§ 93.122 through 93.124.

has approved this implementation plan [FR Doc. 93-28616 Filed 11-23-93; 8:45 am)

revision, the procedures in §§ 93.118 *wLUNG CODE 65604"

HeinOnline -- 58 Fed. Reg. 62253 1993