72140 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

environmental risk to health or risk to 

safety that may disproportionately affect 

children. 

Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it would not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed rule 

under Commandant Instruction 

M16475.1D, which guides the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that there are no factors 

in this case that would limit the use of 

a categorical exclusion under section 

2.B.2 of the Instruction. Therefore, this 

rule is categorically excluded, under 

figure 2–1, paragraph (32)(e), of the 

Instruction, from further environment 

documentation because it has been 

determined that the promulgation of 

operating regulations or procedures for 

drawbridges are categorically excluded.

List of Subjects in 33 CFR Part 117

Bridges.

Regulations 

For the reasons set out in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE 

OPERATION REGULATIONS 

1. The authority citation for part 117 

continues to read as follows:

Authority: 33 U.S.C. 499; Department of 

Homeland Security Delegation No. 0170.1; 33 

CFR 1.05–1(g); section 117.255 also issued 

under the authority of Pub. L. 102–587, 106 

Stat. 5039.

2. Section 117.755 is amended by 

revising paragraph (a) to read as follows:

§117.755 Shrewsbury River. 

(a) The Route 36 Bridge, mile 1.8, at 

Highlands, New Jersey, shall open on 

signal; except that: 

(1) From 11 p.m. to 7 a.m. the draw 

shall open on signal after at least a 4-

hour advance notice is given. 

(2) From May 15 through October 15, 

7 a.m. to 8 p.m., the draw need open on 

the hour and half hour only. 

(3) From December 1 through March 

31, the draw shall open on signal at all 

times after at least a 4-hour advance 

notice is given. 

(4) The owners of the bridge shall 

provide and keep in good legible 

condition, two clearance gauges, with 

figures not less than eight inches high, 

designed, installed, and maintained 

according to the provisions of § 118.160 

of this chapter.

* * * * *

Dated: November 29, 2004. 

David P. Pekoske, 

Rear Admiral, U.S. Coast Guard, Commander, 

First Coast Guard District.

[FR Doc. 04–27217 Filed 12–10–04; 8:45 am] 

BILLING CODE 4910–15–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 93

[OAR–2003–0049; FRL–7847–2] 

Options for PM2.5 and PM10 Hot-Spot 

Analyses in the Transportation 

Conformity Rule Amendments for the 

New PM2.5 and Existing PM10 National 

Ambient Air Quality Standards

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Supplemental notice of 

proposed rule. 

SUMMARY: This supplemental proposal 

follows EPA’s recent final rule that 

includes most of the transportation 

conformity requirements for the new 8-

hour ozone and fine particulate matter 

(PM2.5) national ambient air quality 

standards. In today’s action, EPA is 

requesting further comment on options 

for consideration of localized emissions 

impacts of individual transportation 

projects in particulate matter (PM2.5 and 

PM10) nonattainment and maintenance 

areas. The Clean Air Act requires 

federally supported highway and transit 

projects to be consistent with (‘‘conform 

to’’) the purpose of a state air quality 

implementation plan. EPA has 

consulted with the Department of 

Transportation (DOT), and DOT concurs 

with this supplemental proposal.

DATES: Written comments on this 

supplemental proposal must be received 

on or before January 12, 2005.

ADDRESSES: Submit your comments, 

identified by Docket ID No. OAR–2003–

0049 by one of the following methods: 

• Federal eRulemaking Portal: http://

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http://

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: 202–566–1741. 

• Mail: Air Docket, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Avenue, NW., 

Washington, DC, 20460, Attention 

Docket ID No. OAR–2003–0049. 

• Hand Delivery: EPA Docket Center, 

room B102, EPA West Building, 1301 

Constitution Avenue NW, Washington 

DC. Such deliveries are only accepted 

during the Docket’s normal hours of 

operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. OAR–2003–0049. EPA’s 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72141

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional instructions on 

submitting comments, go to Unit I.C. of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Air Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air Docket 

is (202) 566–1742.

FOR FURTHER INFORMATION CONTACT:

Rudy Kapichak, State Measures and 

Conformity Group, Transportation and 

Regional Programs Division, U.S. 

Environmental Protection Agency, 2000 

Traverwood Road, Ann Arbor, MI 

48105, e-mail address: 

kapichak.rudolph@epa.gov, telephone 

number: (734) 214–4574, fax number 

734–214–4052; or Laura Berry, State 

Measures and Conformity Group, 

Transportation and Regional Programs 

Division, U.S. Environmental Protection 

Agency, 2000 Traverwood Road, Ann 

Arbor, MI 48105, e-mail address: 

berry.laura@epa.gov, telephone number: 

(734) 214–4858, fax number 734–214–

4052.

SUPPLEMENTARY INFORMATION: The 

contents of this preamble are listed in 

the following outline:

I. General Information 

II. Background 

III. PM2.5 Hot-Spot Analyses 

IV. PM10 Hot-Spot Analyses 

V. Minor Change for Compliance With PM2.5

SIP Control Measures 

VI. Statutory and Executive Order Reviews

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially regulated by the 

conformity rule are those that adopt, 

approve, or fund transportation plans, 

programs, or projects under title 23 

U.S.C. or title 49 U.S.C. Regulated 

categories and entities affected by 

today’s action include:

Category Examples of regulated entities 

Local government ..................................................................................... Local transportation and air quality agencies, including metropolitan 

planning organizations (MPOs). 

State government ..................................................................................... State transportation and air quality agencies. 

Federal government ................................................................................. Department of Transportation (Federal Highway Administration (FHWA) 

and Federal Transit Administration (FTA)). 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by this supplemental proposal. 

This table lists the types of entities of 

which EPA is aware that potentially 

could be regulated by the conformity 

rule. Other types of entities not listed in 

the table could also be regulated. To 

determine whether your organization is 

regulated by this action, you should 

carefully examine the applicability 

requirements in § 93.102 of the 

transportation conformity rule. If you 

have questions regarding the 

applicability of this action to a 

particular entity, consult the persons 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI 

Do not submit information that you 

consider to be CBI electronically 

through EPA’s electronic public docket 

or by e-mail. Send or deliver 

information identified as ‘‘CBI only’’ to 

the following address: Attention: Joe 

Pedelty, State Measures and Conformity 

Group, Transportation and Regional 

Programs Division, U.S. Environmental 

Protection Agency, 2000 Traverwood 

Road, Ann Arbor, MI 48105, Docket ID 

No. OAR–2003–0049. You may claim 

information that you submit to EPA as 

CBI by marking any part or all of that 

information as CBI (if you submit CBI 

on disk or CD ROM, mark the outside 

of the disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

CBI). Information so marked will not be 

publicly disclosed except in accordance 

with procedures set forth in 40 CFR part 

2. 

In addition to one complete version of 

the comment that includes any 

information claimed as CBI, a copy of 

the comment that does not contain the 

information claimed as CBI must be 

submitted for inclusion in the public 

docket and EPA’s electronic public 

docket. If you submit the copy that does 

not contain CBI on disk or CD ROM, 

mark the outside of the disk or CD ROM 

clearly indicating that it does not 

contain CBI. Information not marked as 

CBI will be included in the public 

docket and EPA’s electronic public 

docket without prior notice. If you have 

any questions about CBI or the 

procedures for claiming CBI, please

72142 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

consult Joe Pedelty. He can be contacted 

at: Joe Pedelty, State Measures and 

Conformity Group, Transportation and 

Regional Programs Division, U.S. 

Environmental Protection Agency, 2000 

Traverwood Road, Ann Arbor, MI 

48105, e-mail address: 

pedelty.joe@epa.gov, telephone number: 

(734) 214–4410, fax number (734) 214–

4052. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Docket Copying Costs 

You may pay a reasonable fee for 

copying docket materials.

C. How and to Whom Do I Submit 

Comments? 

You may submit comments 

electronically, by mail, by facsimile, or 

through hand delivery/courier. To 

ensure proper receipt by EPA, identify 

the appropriate docket identification 

number in the subject line on the first 

page of your comment. Please ensure 

that your comments are submitted 

within the specified comment period. 

Comments received after the close of the 

comment period will be marked ‘‘late.’’

Although EPA is not required to 

consider these late comments, we may 

do so as appropriate, considering time 

and volume constraints. 

1. Electronically 

If you submit an electronic comment 

as prescribed below, EPA recommends 

that you include your name, mailing 

address, and an e-mail address or other 

contact information in the body of your 

comment. You should also include this 

contact information on the outside of 

any disk or CD ROM you submit, and 

in any cover letter accompanying the 

disk or CD ROM. This ensures that you 

can be identified as the submitter of the 

comment and allows EPA to contact you 

in case EPA cannot read your comment 

due to technical difficulties or needs 

further information on the substance of 

your comment. EPA’s policy is that EPA 

will not edit your comment, and any 

identifying or contact information 

provided in the body of a comment will 

be included as part of the comment that 

is placed in the official public docket, 

and made available in EPA’s electronic 

public docket. However, if EPA cannot 

read your comment due to technical 

difficulties and cannot contact you for 

clarification, EPA may not be able to 

further consider your comment. 

i. EPA Dockets. Your use of EPA’s 

electronic public docket to submit 

comments to EPA electronically is 

EPA’s preferred method for receiving 

comments. Go directly to EPA Dockets 

at http://www.epa.gov/edocket, and 

follow the online instructions for 

submitting comments. To access EPA’s 

electronic public docket from the EPA 

Internet Home Page, select ‘‘Information 

Sources,’’ ‘‘Dockets,’’ and ‘‘EPA 

Dockets.’’ Once in the system, select 

‘‘search,’’ and then key in Docket ID No. 

OAR–2003–0049. The system is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity, 

e-mail address, or other contact 

information unless you provide it in the 

body of your comment. 

ii. E-mail. Comments may be sent by 

electronic mail (e-mail) to a-and-rdocket@epa.gov, Attention Air Docket 

ID No. OAR–2003–0049. In contrast to 

EPA’s electronic public docket, EPA’s email system is not an ‘‘anonymous 

access’’ system. If you send an e-mail 

comment directly to the docket without 

going through EPA’s electronic public 

docket, EPA’s e-mail system 

automatically captures your e-mail 

address. E-mail addresses that are 

automatically captured by EPA’s e-mail 

system are included as part of the 

comment that is placed in the official 

public docket, and are thus made 

available in EPA’s electronic public 

docket. 

iii. Disk or CD ROM. You may submit 

comments on a disk or CD ROM that 

you mail to the mailing address 

identified in Section I.C.2. These 

electronic submissions will be accepted 

only in either WordPerfect or ASCII file 

format. Please avoid the use of special 

characters and any form of encryption, 

as this may adversely affect our ability 

to read these submissions. 

2. By Mail 

Send two copies of your comments to: 

Air Docket, Environmental Protection 

Agency, Mailcode: 6102T, 1200 

Pennsylvania Avenue, NW., 

Washington, DC, 20460, Attention 

Docket ID No. OAR–2003–0049. 

3. By Hand Delivery or Courier 

Deliver two copies of your comments 

to: EPA Docket Center, Room B102, EPA 

West Building, 1301 Constitution 

Avenue, NW., Washington, DC., 

Attention Air Docket ID No. OAR–2003–

0049. Such deliveries can only be 

accepted during the Docket’s normal 

hours of operation as identified in 

Section I.B.1. 

4. By Facsimile 

Fax your comments to: (202) 566–

1741, Attention Docket ID. No. OAR–

2003–0049. 

D. How Can I Get Copies of This 

Document? 

1. Docket 

EPA has established an official public 

docket for this action under Docket ID 

No. OAR–2003–0049. The official 

public docket consists of the documents 

specifically referenced in this action, 

any public comments received, and 

other information related to this action. 

Although a part of the official docket, 

the public docket does not include 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. The official public 

docket is the collection of materials that 

is available for public viewing at the Air 

Docket in the EPA Docket Center, (EPA/

DC) EPA West, Room B102, 1301 

Constitution Avenue, NW., Washington, 

DC. The EPA Docket Center Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566–

1742. 

2. Electronic Access 

You may access this Federal Register

document electronically through EPA’s 

Transportation Conformity Web site at 

http://www.epa.gov/otaq/transp/

traqconf.htm. You may also access this 

document electronically under the 

‘‘Federal Register’’ listings at http://

www.epa.gov/fedrgstr/. 

An electronic version of the public 

docket is available through EPA’s 

electronic public docket and comment 

system, EPA Dockets. You may use EPA 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72143

1Section 93.102(b)(1) of the conformity rule 

defines PM2.5 and PM10 as particles with an 

aerodynamic diameter less than or equal to a 

nominal 2.5 and 10 micrometers, respectively.

Dockets at http://www.epa.gov/edocket/

to submit or view public comments, 

access the index listing of the contents 

of the official public docket, and to 

access those documents in the public 

docket that are available electronically. 

Once in the system, select ‘‘search,’’

then key in the appropriate docket 

identification number.

Certain types of information will not 

be placed in the EPA Dockets. 

Information claimed as CBI and other 

information for which disclosure is 

restricted by statute is not included in 

the official public docket and will not 

be available for public viewing in EPA’s 

electronic public docket. EPA’s policy is 

that copyrighted material will not be 

placed in EPA’s electronic public docket 

but will be available only in printed, 

paper form in the official public docket. 

To the extent feasible, publicly available 

docket materials will be made available 

in EPA’s electronic public docket. When 

a document is selected from the index 

list in EPA Dockets, the system will 

identify whether the document is 

available for viewing in EPA’s electronic 

public docket. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in Section I.B.1. above. EPA 

intends to work towards providing 

electronic access in the future to all of 

the publicly available docket materials 

through EPA’s electronic public docket. 

For public commenters, it is 

important to note that EPA’s policy is 

that public comments, whether 

submitted electronically or in paper, 

will be made available for public 

viewing in EPA’s electronic public 

docket as EPA receives them and 

without change, unless the comment 

contains copyrighted material, CBI, or 

other information for which disclosure 

is restricted by statute. When EPA 

identifies a comment containing 

copyrighted material, EPA will provide 

a reference to that material in the 

version of the comment that is placed in 

EPA’s electronic public docket. The 

entire printed comment, including the 

copyrighted material, will be available 

in the public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to EPA’s electronic public 

docket. Public comments that are 

mailed or delivered to the docket will be 

scanned and placed in EPA’s electronic 

public docket. Where practical, physical 

objects will be photographed, and the 

photograph will be placed in EPA’s 

electronic public docket along with a 

brief description written by the docket 

staff. 

For additional information about 

EPA’s electronic public docket visit EPA 

Dockets online or see 67 FR 38102, May 

31, 2002. 

II. Background 

A. What Is Transportation Conformity? 

Transportation conformity is required 

under Clean Air Act section 176(c) (42 

U.S.C. 7506(c)) to ensure that federally 

supported highway and transit project 

activities are consistent with (‘‘conform 

to’’) the purpose of the state air quality 

implementation plan (SIP). Conformity 

currently applies to areas that are 

designated nonattainment, and those 

redesignated to attainment after 1990 

(‘‘maintenance areas’’ with plans 

developed under Clean Air Act section 

175A) for the following transportationrelated criteria pollutants: ozone, 

particulate matter (PM2.5 and PM10),1

carbon monoxide (CO), and nitrogen 

dioxide (NO2). Conformity to the 

purpose of the SIP means that 

transportation activities will not cause 

new air quality violations, worsen 

existing violations, or delay timely 

attainment of the relevant national 

ambient air quality standards (NAAQS 

or ‘‘standards’’). EPA’s transportation 

conformity rule establishes the criteria 

and procedures for determining whether 

transportation activities conform to the 

SIP.

EPA first promulgated the 

transportation conformity rule on 

November 24, 1993 (58 FR 62188), and 

subsequently published a 

comprehensive set of amendments on 

August 15, 1997 (62 FR 43780) that 

clarified and streamlined language from 

the 1993 rule. EPA has made other 

smaller amendments to the rule both 

before and after the 1997 amendments. 

Most recently, on July 1, 2004, EPA 

published a final rule (69 FR 40004) that 

amends the current conformity rule to 

accomplish three objectives. The final 

rule: 

• Provides conformity procedures for 

state and local agencies under the new 

ozone and PM2.5 air quality standards; 

• Incorporates existing EPA and DOT 

federal guidance into the conformity 

rule consistent with a March 2, 1999 

U.S. Court of Appeals decision; and 

• Streamlines and improves the 

conformity rule. 

The July 1, 2004 final conformity rule 

incorporated most of the provisions 

from the November 5, 2003 proposal for 

conformity under the new ozone and 

PM2.5 standards (68 FR 62690). EPA is 

conducting its conformity rulemakings 

for the new standards in the context of 

EPA’s broader strategies for 

implementing the new ozone and PM2.5

standards. 

The final rule also incorporated all of 

the amendments resulting from a 

separate June 30, 2003 proposal (68 FR 

38974). This proposal addressed the 

March 2, 1999 court ruling by the U.S. 

Court of Appeals for the District of 

Columbia Circuit (Environmental 

Defense Fund v. EPA, et al., 167 F. 3d 

641, D.C. Cir. 1999), and incorporated 

existing federal guidance consistent 

with the court decision. 

B. Why Are We Issuing This 

Supplemental Proposal? 

In the November 2003 proposal, EPA 

presented several options concerning 

hot-spot analyses in PM2.5 and PM10

nonattainment and maintenance areas. 

EPA received substantial comment on 

this portion of the November 2003 

proposal. After considering these 

comments, EPA, in consultation with 

the Department of Transportation 

(DOT), has decided to request further 

public comment through this 

supplemental proposal on PM2.5 and 

PM10 hot-spot analyses, including 

additional options for PM2.5 and PM10

hot-spot requirements and those options 

presented in the November 2003 

proposal. EPA is not requesting today 

further comment on any other issues 

raised in the November 2003 proposal 

or the July 1, 2004 final rule. 

EPA will address all comments 

received on PM2.5 and PM10 hot-spot 

analysis requirements both in response 

to the November 2003 proposal as well 

as this supplemental proposal in a final 

rulemaking after the close of the 

comment period. EPA intends to 

complete its rulemaking on PM2.5 and 

PM10 hot-spot requirements before PM2.5

nonattainment designations become 

effective. The existing PM10 hot-spot 

conformity requirements are not 

affected by today’s supplemental 

proposal, and continue to apply in PM10

nonattainment and maintenance areas 

unless and until EPA makes any final 

rule changes in response to this 

supplemental proposal. 

EPA has consulted with DOT, our 

federal partners in implementing the 

transportation conformity regulation, in 

developing this supplemental proposal, 

and DOT concurs with its content. 

72144 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

III. PM2.5 Hot-Spot Analyses 

A. What Are We Proposing?

1. Background 

EPA is proposing several additional 

options for hot-spot analyses for projectlevel conformity determinations in 

PM2.5 nonattainment and maintenance 

areas. Some options were proposed in 

the November 5, 2003 proposal, and 

other options are being newly proposed 

today. Comments can be submitted on 

all PM2.5 hot-spot options during the 

comment period for this supplemental 

proposal. The options below are listed 

in terms of what would be required for 

project-level conformity determinations 

before and after a PM2.5 SIP is submitted 

in a given PM2.5 nonattainment or 

maintenance area. Today’s proposed 

regulatory text combines various PM2.5

and PM10 hot-spot options as illustrative 

examples, since common sections and 

paragraphs of the conformity rule would 

be affected under the supplemental 

proposal. However, EPA believes that 

any combination of the proposed PM2.5

or PM10 hot-spot options could be 

included in the final rule. 

A hot-spot analysis is defined in 

§ 93.101 of the conformity rule for CO 

and PM10 areas as an estimation of 

likely future localized pollutant 

concentrations and a comparison of 

those concentrations to the relevant air 

quality standard. In general, a 

quantitative or qualitative hot-spot 

analysis must show that a given project 

does not cause or contribute to any new 

violations of the air quality standard or 

increase the frequency or severity of 

existing violations. A hot-spot analysis 

assesses impacts on a scale smaller than 

an entire nonattainment or maintenance 

area, including for example, congested 

roadway intersections and highways or 

transit terminals. 

The existing conformity rule requires 

a hot-spot analysis for all Federal 

Highway Administration (FHWA) and 

Federal Transit Administration (FTA) 

funded or approved non-exempt 

transportation projects in CO and PM10

nonattainment and maintenance areas 

(see 40 CFR 93.116 and 93.123). This 

requirement applies for all project-level 

conformity determinations that occur 

both before and after a SIP is submitted 

for the CO or PM10 air quality standard. 

The type of hot-spot analysis—

quantitative or qualitative—varies 

depending on the type of project 

involved. The current conformity rule 

requires quantitative hot-spot analyses 

for projects of most concern in CO and 

PM10 areas. For example, § 93.123(b)(1) 

currently requires quantitative PM10

hot-spot analyses for the following types 

of transportation projects in PM10 areas: 

• Projects which are located at sites at 

which violations have been verified by 

monitoring data; 

• Projects which are located at sites 

which have vehicle and roadway 

emission and dispersion characteristics 

that are essentially identical to those of 

sites with verified violations (including 

sites near one at which a violation has 

been monitored); and 

• New or expanded bus and rail 

terminals and transfer points which 

increase the number of diesel vehicles 

congregating at a single location. 

Section 93.123(b)(4) of the conformity 

rule clarifies that the requirements for 

PM10 hot-spot quantitative analysis will 

not take effect until EPA releases 

modeling guidance and announces in 

the Federal Register that these 

requirements are in effect. Quantitative 

hot-spot analyses use dispersion 

modeling to determine the effects of 

motor vehicle emissions associated with 

a highway or transit project on air 

quality. Qualitative reviews are required 

for all other non-exempt projects in CO 

and PM10 areas. Qualitative reviews are 

more streamlined and consider local 

factors, such as local monitoring data 

near a proposed project rather than 

dispersion modeling. See Section IV. of 

this notice for further information 

regarding EPA’s proposed options for 

retaining or changing the current 

conformity rule’s PM10 hot-spot analysis 

requirements. 

In the November 5, 2003 proposal, 

EPA presented two options for hot-spot 

analyses for project-level conformity 

determinations in PM2.5 nonattainment 

and maintenance areas. Under the first 

option (Option 1), hot-spot analyses 

would not be required for any FHWA/

FTA non-exempt projects in PM2.5

nonattainment and maintenance areas at 

any time. Under the second option 

(Option 2), quantitative PM2.5 hot-spot 

analyses would only be required for 

FHWA/FTA projects at certain types of 

locations if the PM2.5 SIP for an area 

identified such locations. Under Option 

2, PM2.5 hot-spot analyses would not be 

required for any projects prior to the 

submission of a SIP and then only if the 

PM2.5 SIP in a given nonattainment area 

identified susceptible types of project 

locations. See the November 5, 2003 

proposal (68 FR 62712–62713) for 

further information. These options are 

also repeated below along with the 

additional options EPA is proposing 

today. 

2. PM2.5 Hot-Spot Analyses Before SIP 

Submission 

EPA is proposing the following PM2.5

hot-spot options for project-level 

conformity determinations that occur 

prior to the submission of a PM2.5 SIP: 

• Options 1 and 2: Do not apply any 

PM2.5 hot-spot analysis requirements for 

any PM2.5 area before the submission of 

the PM2.5 SIP, as described in the 

November 2003 proposal; 

• Option 3: Apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements with respect to PM2.5 in all 

PM2.5 areas; 

• Option 4: Apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements with respect to PM2.5, 

unless the EPA Regional Administrator 

or state air agency finds that localized 

PM2.5 violations are not a concern for a 

given PM2.5 area; or

• Option 5: Apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements with respect to PM2.5, if 

the EPA Regional Administrator or state 

air agency finds that localized PM2.5

violations are a concern for a given 

PM2.5 area. 

For Options 4 and 5, EPA intends 

localized PM2.5 concentrations to be a 

concern if the Clean Air Act 

requirements for projects are not met, 

that is, if projects create new violations, 

increase the severity or frequency of 

existing violations, or delay timely 

attainment of the PM2.5 standard. Please 

note that Options 3–5 would extend the 

existing PM10 hot-spot requirements 

with respect to the PM2.5 standard, 

subject to the conditions outlined in the 

options. EPA is not proposing to require 

PM10 hot-spot analyses in PM2.5 areas. 

Although EPA has not proposed specific 

language in § 93.123(b) for Options 4 

and 5, EPA has described these options 

sufficiently in this preamble to include 

either or both of them in the final rule, 

if selected. 

EPA requests comments on all of 

these options. Specifically, EPA invites 

commenters to submit any data as well 

as argument regarding the relevant 

statutory authority in support of their 

preferred option(s). EPA requests 

commenters to submit any information 

that exists that would support Options 

1, 2, or 3. In addition, for Options 4 and 

5 above, EPA requests comment today 

on whether state and local agencies will 

have information available to make 

findings prior to PM2.5 SIP submission, 

and what type of information will be 

available during this time period. 

An EPA or state air agency finding 

that PM2.5 localized violations are or are 

not a concern (i.e., a ‘‘hot-spot finding’’) 

prior to PM2.5 SIP submission would be 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72145

based on a case-by-case review of local 

factors for a given PM2.5 area. For 

example, such a review could consider 

the following local factors: PM2.5

monitoring data and proximity to the 

PM2.5 standard, future modeling 

projections and likelihood of new or 

worsening localized PM2.5 violations at 

transportation-related project locations, 

the prevalence of heavy-duty diesel 

vehicles at certain types of locations 

(e.g., highly congested intersections or 

large transit stations where significant 

traffic and engine idling occurs), sitespecific terrain, meteorology, etc. As 

noted in the November 2003 proposal, 

since secondary particles take several 

hours to form in the atmosphere giving 

emissions time to disperse beyond the 

immediate area of concern, hot spot 

findings under options 4 and 5 would 

be based on direct particulate emissions 

that are attributable to an individual 

project. 

If EPA finalizes an option under 

which hot-spot findings would be made, 

such findings would be made only after 

discussions among federal, state, and 

local air quality and transportation 

agencies through the interagency 

consultation process for a given PM2.5

nonattainment area. A hot-spot finding 

would be made through a letter to the 

relevant state and local air quality and 

transportation agencies, MPO(s), FHWA, 

FTA, and EPA (in the case of a state air 

agency finding). 

EPA notes that a hot-spot finding 

under Options 4 and 5 would not be 

completed through EPA’s adequacy 

process for submitted SIPs with motor 

vehicle emissions budgets. Hot-spot 

findings would be done prior to a SIP’s 

submission and would not affect the 

development of future SIPs and budgets 

for use in regional emissions analyses 

for conformity determinations. 

3. PM2.5 Hot-Spot Analyses After SIP 

Submission 

EPA is proposing the following PM2.5

hot-spot options for project-level 

conformity determinations that occur 

after the submission of a PM2.5 SIP: 

• Option A: Do not apply any PM2.5

hot-spot analysis requirements for any 

PM2.5 area (i.e., Option 1 from the 

November 2003 proposal); 

• Option B: Only require quantitative 

PM2.5 hot-spot analyses for projects at 

those types of locations that the PM2.5

SIP for a given area identifies as a 

localized PM2.5 air quality concern (i.e., 

Option 2 from the November 2003 

proposal). No quantitative or qualitative 

analyses would be required for projects 

in other types of locations, or in PM2.5

areas where the SIP does not identify 

types of locations as a localized PM2.5

air quality concern; or

• Option C: Apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements with respect to PM2.5 for 

all projects in PM2.5 areas with one 

minor addition, as described below. 

Under Option B, PM2.5 hot-spot 

analyses would only be required for 

projects at the types of locations 

identified in the PM2.5 SIP; no 

qualitative hot-spot analyses would be 

done for any other projects. Option B 

would not require hot-spot analyses for 

all FHWA/FTA non-exempt projects in 

the PM2.5 nonattainment or maintenance 

areas, as is proposed under Option C 

and currently required for CO and PM10

nonattainment and maintenance areas. 

If EPA finalizes Option B, we would 

provide guidance on how to identify 

locations where transportation-related 

PM2.5 hot-spots may exist. Examples of 

types of possible project locations 

include: 

• Highly congested intersections, 

• Large transit stations where 

significant traffic and engine idling 

occurs, 

• Projects involving long or steep 

grades, or 

• Monitors where the PM2.5 standard 

has been exceeded or violated. 

EPA requests comment on the above 

examples, and requests further 

information regarding other types of 

project locations that should be 

considered in possible future guidance 

on potential PM2.5 hot-spots in a given 

area. Any future guidance would be 

available for use when states prepare 

their PM2.5 SIPs. 

Minor change to quantitative hot-spot 

requirements: For Option C, EPA is 

proposing one minor change to the 

existing rule’s PM10 requirements for 

when quantitative analyses are required 

in PM2.5 areas. As applied to PM2.5 hotspot analyses, the proposal would 

require that quantitative analyses be 

performed in those types of project 

locations that the PM2.5 SIP identifies as 

a PM2.5 hot-spot concern, in addition to 

the three types of projects where 

quantitative analysis would always be 

required, as outlined in Section III.A.1. 

This criterion would only be relevant 

after the PM2.5 SIP is submitted. If EPA 

finalizes this minor change, we propose 

that it would apply to both PM2.5 and 

PM10 hot-spot analyses. This change is 

described in greater detail in Section IV. 

of today’s supplemental proposal 

relating to PM10 and the reader should 

refer to that section for further details. 

Regulatory text for this minor change is 

in § 93.123(b)(1) of today’s action. 

EPA also proposes to make a minor 

change to § 93.123(b)(1)(iii) to clarify 

that quantitative analyses would be 

required for such projects that 

significantly increase the number of 

diesel vehicles, so that quantitative 

analyses are not required for 

insignificant vehicle increases with de 

minimis localized emissions increases. 

The proposed change may also cover the 

cases where the number of vehicles 

increases but emissions do not increase 

because the added vehicles are cleaner 

(e.g., retrofitted diesel vehicles). 

4. Quantitative PM2.5 Hot-Spot Analyses 

and Future EPA Guidance 

For options that would require 

quantitative hot-spot analyses, EPA 

proposes to extend the current rule’s 

§ 93.123(b)(3) and (b)(4) requirements 

with respect to PM2.5. Section 

93.123(b)(3) currently requires that the 

consultation process be used to identify 

the specific cases in a given 

nonattainment or maintenance area 

under which PM10 quantitative hot-spot 

analyses are performed, and addresses 

categorical conformity determinations 

for certain transit projects and FTA 

actions in PM10 areas. A categorical 

conformity determination under the 

existing conformity rule and this 

proposal allows FTA to determine that 

a quantitative hot-spot analysis is not 

needed for a particular project if there 

is modeling that shows that such a 

project will not cause or contribute to 

new or worsening localized violations. 

Today’s action would also propose to 

extend this sub-paragraph for PM2.5 and 

allow DOT to choose to make a 

categorical conformity determination for 

PM2.5 on bus and rail terminals or 

transfer points based on appropriate 

modeling of various terminal sizes, 

configurations, and activity levels. 

Today’s proposal does not substantively 

change § 93.123(b)(3) for FTA actions on 

certain transit projects, and EPA is not 

requesting comment on this existing 

flexibility.

However, the proposal would modify 

§ 93.123(b)(3) to allow FHWA to make a 

categorical conformity determination for 

PM2.5 and PM10 on certain roadways and 

intersections based on appropriate 

modeling of various configurations and 

activity levels. As described above, the 

current rule provides for such FTA 

categorical conformity determinations 

for only certain transit projects in PM10

areas. 

We request comment on allowing 

FHWA to make a categorical 

determination for hot-spot analyses in 

appropriate cases if it believes that 

Clean Air Act requirements are met 

without additional PM2.5 hot-spot 

analyses. EPA also requests information 

on what types of roadway and 

72146 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

intersection projects would be 

appropriately covered by this aspect of 

today’s proposal. If finalized, EPA and 

DOT would consult on the development 

of additional guidance on the 

implementation of such a provision. 

Under the proposal, the modeled 

scenarios used to make the categorical 

determinations would need to be 

derived in consultation with EPA, and 

more refined analyses would be 

necessary for projects which do not 

meet the parameters of the modeled 

scenario. See EPA’s January 11, 1993 

proposal (58 FR 3780) for further 

information on the current rule’s 

requirements. 

Similar to § 93.123(b)(4) of the current 

rule for PM10 areas, EPA also proposes 

to not require any quantitative PM2.5

hot-spot analyses until EPA releases 

quantitative modeling guidance and 

announces in the Federal Register that 

PM2.5 quantitative modeling 

requirements are in effect. If EPA 

finalizes an option that would require 

quantitative and/or qualitative PM2.5

hot-spot analyses, we would provide 

guidance and appropriate models for 

carrying out such analyses in a timely 

manner. EPA would consult with 

conformity stakeholders when 

developing quantitative guidance. 

5. Other Requirements 

General requirements: For options 

that would require a PM2.5 hot-spot 

analysis, EPA is proposing to extend the 

general requirements in § 93.123(c) of 

the current conformity rule to PM2.5

areas. EPA is not proposing any 

substantive changes to these 

requirements in today’s action. Under 

these current requirements, all hot-spot 

analyses include: 

• The total emissions burden of direct 

PM2.5 emissions which may result from 

the implementation of the project 

(including re-entrained road dust and 

construction dust as applicable), 

summed together with future 

background concentrations; 

• The entire transportation project, 

after the identification of major design 

features which will significantly impact 

local concentrations; 

• Consistent assumptions with those 

used in regional emissions analyses for 

inputs that are required for both 

analyses (e.g., temperature, humidity);

• Assumptions for the 

implementation of mitigation or control 

measures only where written 

commitments for such measures have 

been obtained; and 

• No temporary emissions increases 

from construction-related activities 

which occur only during the 

construction phase and last five years or 

less at any individual site. 

See the preamble for the January 1, 

1993 proposal (58 FR 3779–3780) and 

November 24, 1993 final rule (58 FR 

62212–62213) for further information 

regarding the intent and rationale for 

these general hot-spot requirements. 

Finally, as described in the November 

2003 proposal, EPA is proposing to also 

extend the requirements of § 93.125(a) 

of the current conformity rule to PM2.5

areas if a PM2.5 hot-spot requirement is 

finalized. Section 93.125(a) of the 

existing conformity rule currently 

applies to all projects in CO and PM10

nonattainment and maintenance areas. 

As described in the November 2003 

proposal and today’s action, FHWA or 

FTA must obtain from the project 

sponsor and/or operator enforceable 

written commitments to implement any 

required project-level control or 

mitigation measures, prior to making a 

project-level conformity determination 

in a PM2.5 nonattainment or 

maintenance area. These control or 

mitigation measures may be a condition 

of either a National Environmental 

Policy Act (NEPA) approval or a 

conformity determination for a 

transportation plan or TIP or be 

included in the design concept and 

scope of the project that is used in the 

regional emissions analysis required by 

§§ 93.118 or 93.119 of the conformity 

rule, or used in the project-level hotspot analysis required by § 93.116. 

These measures may be applicable 

during construction and/or operation of 

the project. Such measures would 

already be applicable to such projects 

through the mechanisms cited above; 

however, including commitments to 

them in conformity determinations will 

provide an additional enforcement tool. 

Changes to other related existing 

requirements: Today’s proposal also 

includes minor clarifications with 

respect to PM2.5 to various parts of the 

current conformity rule that are 

consistent with existing CO and PM10

hot-spot analysis requirements. For 

example, EPA has proposed to add 

PM2.5 to the current rule’s ‘‘hot-spot 

analysis’’ definition in § 93.101. EPA 

proposes that this and the other minor 

clarifications in today’s proposed 

regulatory text would be finalized under 

any option that would require PM2.5 hotspot analyses. 

B. Why Are We Proposing These 

Options? 

1. General 

EPA believes it is important to 

consider the full range of options for 

addressing localized PM2.5

concentrations which may cause or 

contribute to any new violation of the 

PM2.5 standard; increase the frequency 

or severity of any existing violation; or 

delay timely attainment of the standard. 

In developing this supplemental 

proposal, EPA considered several 

factors:

• The Clean Air Act conformity 

requirements for individual 

transportation projects; 

• The current scientific 

understanding of PM2.5 hot-spots and 

public health effects; 

• The feasibility of implementing 

proposed options; and 

• The impact of proposed options on 

state and local resources. 

The following paragraphs outline how 

these factors relate to the proposed 

options. 

First, EPA believes that any option 

that is selected in the final rule must 

ensure that all federally funded and 

approved transportation projects in 

PM2.5 areas are consistent with Clean 

Air Act requirements. Section 

176(c)(1)(B) of the Clean Air Act states 

that federally-supported transportation 

projects must not ‘‘cause or contribute 

to any new violation of any standard in 

any area; increase the frequency or 

severity of any existing violation of any 

standard in any area; or delay timely 

attainment of any standard or any 

required interim emission reductions or 

other milestones in any area.’’ While 

these statutory requirements apply at all 

times for highway and transit project 

conformity determinations, as noted in 

the November 3, 2003 proposal, Section 

176 (c)(3)(B)(ii) only specifically 

requires hot-spot analysis for projects in 

CO nonattainment areas and therefore, 

EPA has discretion to decide if hot-spot 

analyses are necessary to protect air 

quality in particulate matter 

nonattainment and maintenance areas. 

EPA received comments concerning this 

interpretation of the Agency’s statutory 

authority during the comment period 

following the November 3, 2003 

proposal and invites further comments 

on this matter. 

EPA also considered what is currently 

known about the possibility that 

transportation-related PM2.5 hot-spots 

exist in the development of the 

November 2003 proposal and today’s 

supplemental proposal. In the 

November 3, 2003 proposal EPA 

indicated that the Agency was not 

certain that hot-spots will occur, or that 

in the event such hot-spots are 

confirmed, that requiring a qualitative 

hot-spot analysis for every FHWA and 

FTA project in PM2.5 nonattainment and 

maintenance areas would provide an 

environmental benefit due to the 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72147

regional nature of PM2.5 and the 

significant role of secondary formation 

of these fine particles. 

Understanding whether transportation 

projects can result in PM2.5 hot-spots 

and if so, under what circumstances, 

provides a basis for considering whether 

explicit hot-spot reviews must be 

required. The state of scientific research 

continues to evolve on the relationship 

between individual transportation 

projects and PM2.5 air quality. EPA 

noted in the November 2003 proposal 

that most of the research studies that 

had been reviewed at that time 

indicated that concentrations of some 

components of PM2.5 increase near 

heavily traveled roadways. In the 

November 2003 proposal, EPA noted its 

review of a number of key studies that 

represent the range of available research 

on the impact of on-road mobile source 

emissions of particles on air quality near 

roadways. The majority of these studies 

indicate that concentrations of some 

components of PM2.5, such as black 

carbon and ultrafine particles, increase 

near roadways. However, many of these 

studies did not measure PM2.5 directly. 

Several studies concluded that on-road 

sources were one of several contributors 

to the concentrations measured near 

roadways. Please see the November 

2003 proposal for additional 

information on these and other studies 

(68 FR 62713). 

EPA has also considered information 

that has become available since the 

November 2003 proposal and has 

further considered the information that 

was described in the November 2003 

proposal. For example, one new study 

published this year examines changes in 

traffic patterns associated with a single 

transportation project that can result in 

statistically significant differences in 

PM2.5 mass concentrations measured 

along affected roadways (Burr, et al., 

2004). Some commenters also provided 

other information regarding PM2.5 hotspots for EPA’s consideration. The 

information available prior to the 

November 2003 proposal did not 

measure PM2.5 directly and did not 

isolate the effects of new transportation 

projects. However, both this information 

as well as the most recent information 

does indicate a potential for higher 

localized emissions and PM2.5

concentrations near transportation 

projects. EPA is considering the context 

for how this information was developed, 

including how localized emissions 

increases and existing background 

concentrations relate to the potential for 

localized violation of the PM2.5

standard. We invite others to submit 

data or research relevant to the 

existence of transportation-related hotspots during the comment period for 

this supplemental proposal. Please read 

C. of this section for further information. 

EPA also considered what would be 

known about the potential for PM2.5 hotspots in individual PM2.5 nonattainment 

areas, and as a consequence, the 

feasibility of implementing any 

proposed option to meet statutory 

requirements before and after PM2.5 SIP 

submission. We invite state and local 

agencies to comment on the feasibility 

of implementing all of the proposed 

options, including what state or local 

information would be available for 

implementation purposes as 

appropriate. 

In addition, EPA will be considering 

in the final rule the impact of our new 

diesel fuel and engine standards 

(January 18, 2001, 66 FR 5002) for the 

necessity of applying any of the 

proposed options. Such standards are 

expected to significantly impact the 

amount of particulate emissions that 

will be emitted by new diesel vehicles, 

and consequently may impact the 

potential for PM2.5 transportationrelated hot-spots.

2. PM2.5 Hot-Spot Analyses Before SIP 

Submission 

EPA has proposed several options for 

PM2.5 hot-spot analyses prior to SIP 

submission (Options 1–5). As stated 

above, our understanding of 

transportation-related PM2.5 and the 

potential of PM2.5 hot-spots will 

continue to develop, especially during 

the time period when conformity first 

applies for the PM2.5 standard. 

EPA is again proposing Options 1 and 

2 which do not require any explicit 

PM2.5 hot-spot analysis for any project 

before PM2.5 SIP submission in PM2.5

nonattainment and maintenance areas. 

Please see the November 2003 proposal 

(68 FR 62712–62713) for further 

information on these options. 

EPA has also proposed to apply the 

existing rule’s PM10 hot-spot 

requirements to PM2.5 areas before PM2.5

SIP submission (Option 3). EPA believes 

that this option would meet statutory 

requirements since it relies on an 

existing interpretation that has already 

been implemented under the current 

conformity rule. In the November 24, 

1993 conformity rule (58 FR 62188), 

EPA promulgated the existing 

conformity requirements for CO and 

PM10 hot-spot analyses. A hot-spot 

analysis is currently required for all 

non-exempt federal projects in CO and 

PM10 nonattainment and maintenance 

areas, regardless of whether or not a SIP 

has been submitted. Quantitative hotspot analyses under the current rule are 

required for projects that meet specific 

criteria in the conformity rule, rather 

than based on criteria identified in a 

SIP. 

The current conformity rule requires 

hot-spot analyses for all non-exempt 

FHWA/FTA projects at all times in PM10

areas, since we believed that emissions 

produced by individual highway and 

transit projects in these areas could 

potentially result in a new air quality 

violation or worsen an existing 

violation. Option 3 relies on this same 

rationale. 

Applying the current rule’s provisions 

in PM2.5 areas would provide an 

environmentally conservative approach 

to any uncertainty regarding the 

potential or prevalence of PM2.5 hotspots, since some type of hot-spot 

analysis would be completed for every 

non-exempt FHWA/FTA project in 

PM2.5 areas. Although state and local 

agencies have developed boundary 

recommendations for PM2.5

designations, SIPs for individual 

nonattainment areas will not be 

developed for three years after 

designations. As a result, information 

regarding localized PM2.5 air quality 

challenges in individual areas may not 

be available for most areas. EPA will 

consider in the final rule whether 

sufficient information is available to 

confidently confirm or eliminate the 

possibility of PM2.5 hot-spots for 

categories of project types or locations, 

and as a result, if explicit hot-spot 

reviews are necessary before PM2.5 SIP 

submission. 

EPA is also proposing Options 4 and 

5 for the time period prior to PM2.5 SIP 

submission, due to the evolving nature 

of our understanding of PM2.5 air quality 

issues. These options would apply 

current PM10 hot-spot requirements 

with respect to PM2.5 depending on 

whether or not worsening PM2.5

concentrations would result in a new 

violation or increased severity or 

frequency of an existing violation of the 

PM2.5 standard in an area prior to PM2.5

SIP submission. These options would 

rely on the proposed interpretation 

stated in the November 2003 proposal 

(68 FR 62713): Clean Air Act section 

176(c)(1)(B) requirements could be met 

as long as explicit reviews are 

performed at locations identified in the 

PM2.5 SIP as susceptible to PM2.5 hotspots. If hot-spots are found not to be a 

concern (Option 4) for any projects in a 

given area prior to PM2.5 SIP 

submission, then statutory requirements 

could be met in these areas without any 

explicit hot-spot review. Conversely, if 

hot-spots are found to be a concern 

(Option 5) in a given area, then all 

project-level conformity determinations 

in these areas should include explicit 

72148 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

hot-spot reviews to ensure that statutory 

requirements are met. Both of these 

options would allow EPA and states to 

target hot-spot requirements in PM2.5

nonattainment areas where hot-spots 

may or may not be an air quality 

concern.

As described in A.2. of this section, 

EPA is requesting comment on whether 

state and local air agencies will have the 

necessary data and other information to 

make the hot-spot findings described in 

Options 4 and 5 prior to PM2.5 SIP 

submission. The appropriateness and 

feasibility of these options—that is, the 

ability to argue that section 176(c)(1)(B) 

requirements are met under these 

options—depends on whether wellconsidered, informed findings will be 

possible prior to PM2.5 SIP submission. 

3. PM2.5 Hot-Spot Analyses After SIP 

Submission 

EPA has also proposed options for 

PM2.5 hot-spot analyses after SIP 

submission (Options A–C). Option C 

would extend the existing rule’s PM10

hot-spot requirements (with a minor 

addition) to PM2.5 areas after PM2.5 SIP 

submission. Similar to Option 3 for the 

time period before PM2.5 SIPs, EPA 

concludes that Option C would meet 

statutory requirements since it relies on 

existing rationale for the current 

conformity rule. 

EPA also notes that extending the 

current rule’s provisions for PM10 hotspot analyses to PM2.5 areas would 

ensure that potential transportationrelated PM2.5 hot-spots for all areas are 

addressed, especially in cases where it 

is not possible to determine through the 

SIP process what the potential for 

localized PM2.5 violations would be in a 

given nonattainment or maintenance 

area. As noted previously, EPA will 

consider in the final rule the potential 

existence of PM2.5 hot-spots for 

transportation projects, and whether 

explicit hot-spot reviews will be needed 

to meet Clean Air Act requirements. 

Option C would require state and local 

resources be used for all FHWA/FTA 

non-exempt projects in PM2.5 areas, 

although EPA is proposing flexibility to 

require more intensive quantitative hotspot reviews only for a subset of 

projects. 

EPA also proposed Option B to 

require quantitative PM2.5 hot-spot 

analyses only at types of project 

locations identified as a localized air 

quality concern in a given PM2.5 SIP. 

When the SIP identifies such locations, 

a quantitative hot-spot analysis would 

be completed for affected projects. No 

qualitative analyses would be required 

for projects in other types of locations, 

or in PM2.5 areas where the SIP does not 

identify types of locations as a localized 

PM2.5 air quality concern. Under Option 

B, EPA is proposing quantitative hotspot analyses only for projects at 

locations identified in the SIP as a 

localized concern, since EPA believes 

that if a SIP identifies such a project 

location as problematic, then a more 

thorough examination of the localized 

impacts of transportation projects at 

such locations is necessary to ensure 

that the SIP’s purpose and Clean Air Act 

conformity requirements are met. 

As stated in the November 2003 

proposal, Option B is consistent with 

the purpose of conformity, which is to 

ensure that federally funded or 

approved transportation projects are 

consistent with the SIP in a given 

nonattainment or maintenance area. 

Section 176(c)(1)(A) requires 

‘‘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 * * *.’’ Under this option, 

the SIP would define the types of 

locations where transportation projects 

are a localized PM2.5 concern, and 

therefore, when explicit hot-spot 

reviews are necessary to meet statutory 

requirements. 

For Option B, EPA is considering 

whether PM2.5 SIPs can be developed so 

potential transportation-related hot-spot 

locations are defined for each PM2.5

nonattainment and maintenance area. 

This option would be feasible in the 

case where sufficient information exists 

that allows a state to specify susceptible 

locations for PM2.5 hot-spots are or are 

not a concern. However, there may be 

other cases where it is unclear whether 

susceptible locations for hot-spots exist, 

or where there is a potential for 

localized PM2.5 violations but it is 

difficult to specify which project 

locations could create hot-spots. EPA is 

requesting comment on whether such 

cases could occur in future PM2.5 areas, 

and whether other proposed options 

would be more appropriate in such 

cases after a PM2.5 SIP is submitted. 

EPA also requests comment on how 

the proposed options should be 

implemented in cases where the latest 

information available on the potential 

for PM2.5 hot-spots is not reflected in the 

PM2.5 SIP. For example, suppose an 

attainment demonstration for the PM2.5

standard is developed that specifies that 

there are no project locations 

susceptible to PM2.5 hot-spots. However, 

after the attainment demonstration is 

submitted, information becomes 

available outside the SIP process that 

indicates that there may be potential 

transportation-related hot-spot 

locations. One may argue that in such a 

case under Option B PM2.5 SIPs would 

need to be updated in a timely manner 

to reflect new information so that 

project-level conformity determinations 

could be made that meet statutory 

requirements. On the other hand, there 

may be arguments to allow the SIP 

process to evaluate any new information 

prior to its use in the conformity 

process. 

EPA has committed to issue SIP 

guidance under this option if it is 

finalized. Due to the evolving nature of 

our understanding of PM2.5, there may 

be challenges to any guidance document 

that is developed in the near future. 

EPA requests in today’s action further 

comment on whether state and local air 

quality agencies will have the necessary 

local information and resources to 

specify in PM2.5 SIPs which project 

locations are a potential PM2.5 hot-spot 

concern, in order to support Option B 

and provide flexibility in the conformity 

process.

State and local agencies may identify 

types of locations in each PM2.5 SIP that 

may increase or decrease the kinds of 

projects requiring quantitative hot-spot 

analyses, as compared to the current 

conformity rule’s criteria for such PM10

hot-spot analyses. Ultimately, EPA 

anticipates that this option would likely 

result in fewer total projects having 

some type of PM2.5 hot-spot review as 

compared to the current conformity 

rule’s requirements, since not all PM2.5

areas may have future PM2.5 SIPs that 

identify hot-spots as a concern. 

EPA is again proposing options for 

not requiring any explicit PM2.5 hot-spot 

analysis for any project after PM2.5 SIP 

submission (Option A). As stated in B.2. 

of this section, this option could be 

finalized based on the discussion of this 

option in the November 3, 2003 

proposal. 

4. Specific Analysis Requirements 

EPA continues to believe it has 

discretion both to decide if hot-spot 

analyses are necessary and to establish 

the level of any PM2.5 hot-spot analysis 

that would be required for 

transportation projects. For example, the 

options that involve applying the 

existing conformity rule’s PM10

requirements with respect to PM2.5

would require quantitative hot-spot 

analyses only for certain projects. 

Qualitative hot-spot analyses would be 

completed under these options for other 

projects that are not subject to 

quantitative analyses. Applying the 

current conformity rule’s approach for 

requiring dispersion modeling only at 

certain project locations would 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72149

streamline PM2.5 hot-spot reviews and 

utilize state and local resources in an 

efficient and reasonable manner while 

still satisfying Clean Air Act 

requirements. 

EPA’s minor proposal to add a new 

criterion under Option C to 

§ 93.123(b)(1) of the regulatory text for 

when PM quantitative hot-spot analyses 

are required would ensure that Clean 

Air Act and SIP goals are met. That is, 

requiring quantitative hot-spot analyses 

to also be completed for types of project 

locations that the SIP identifies will 

support the SIP’s goals for an individual 

area in those cases where a state has the 

information to identify specific types of 

locations. Where a state does not have 

such information, EPA believes that the 

remaining three criteria for when 

quantitative analyses are completed 

sufficiently cover the cases where it is 

most likely to have a hot-spot occur. 

EPA notes that this minor proposal 

would be consistent with a similar 

criterion in § 93.123(a)(1)(i) of the 

existing rule’s requirements for 

quantitative CO hot-spot analyses. This 

criterion requires quantitative CO hotspot analyses ‘‘[f]or projects in or 

affecting locations, areas, or categories 

of sites which are identified in the 

applicable implementation plan as sites 

of violation or possible violation; 

* * *.’’

5. Other Requirements 

Finally, EPA is proposing to apply the 

current conformity rule’s other 

provisions for conducting hot-spot 

analyses with respect to PM2.5 for any 

option that requires a PM2.5 hot-spot 

analysis. As described in A.5. of this 

section, these minor proposed changes 

would not substantively change these 

provisions of the current conformity 

rule (e.g., §§ 93.123(c) and 93.125(a)). 

These proposed changes would allow 

EPA to implement any PM2.5 hot-spot 

requirement in the final rule, if 

necessary. 

C. Request for PM2.5 Hot-Spot 

Information 

EPA again invites commenters to 

submit studies or data regarding PM2.5

hot-spots during the comment period for 

this supplemental proposal. All 

comments and information submitted 

for the November 2003 proposal and 

today’s action will be considered when 

EPA develops the final rule that 

addresses PM2.5 hot-spot requirements. 

IV. PM10 Hot-Spot Analyses 

A. What Are We Proposing? 

1. Background 

EPA is proposing several options for 

PM10 hot-spot analyses in today’s action 

for project-level conformity 

determinations in PM10 nonattainment 

and maintenance areas. As described in 

Section III. of today’s action, a highway 

or transit project subject to 

transportation conformity provisions of 

the Clean Air Act must not cause or 

contribute to any new violations of the 

air quality standard, increase the 

frequency or severity of existing 

violations or delay timely attainment of 

any standard or interim emission 

reductions or milestones.

Comments can be submitted on all 

options during the comment period for 

this supplemental proposal. The options 

below are listed in terms of what would 

be required for project-level conformity 

determinations before and after a PM10

SIP is submitted in a given PM10

nonattainment or maintenance area. 

The following paragraphs describe the 

November 5, 2003 proposal’s PM10 hotspot options along with new options 

proposed for comment today. Today’s 

proposed regulatory text combines 

various PM2.5 and PM10 hot-spot options 

as illustrative examples, since common 

sections and paragraphs of the 

conformity rule would be affected under 

the supplemental proposal. However, 

EPA believes that any combination of 

the proposed PM2.5 or PM10 hot-spot 

options could be included in the final 

rule. 

As described in Section III., the 

existing conformity rule requires some 

type of hot-spot analyses for all FHWA/

FTA non-exempt projects in CO and 

PM10 nonattainment and maintenance 

areas (see 40 CFR 93.116 and 93.123). 

These requirements currently apply for 

all project-level conformity 

determinations that occur before and 

after a SIP is submitted for these 

standards. 

2. PM10 Hot-Spot Analyses Prior to SIP 

Submission 

In today’s supplemental proposal, 

EPA is proposing the following PM10

hot-spot options for project-level 

conformity determinations that occur 

prior to the submission of a PM10 SIP: 

• Option 1: Retain the existing 

conformity rule’s PM10 hot-spot analysis 

requirements in all PM10 areas. 

• Option 2: Apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements, unless the EPA Regional 

Administrator or state air agency finds 

that localized PM10 violations are not a 

concern for a given PM10 area; 

• Option 3: Only apply the existing 

conformity rule’s PM10 hot-spot analysis 

requirements, if the EPA Regional 

Administrator or state air agency finds 

that localized PM10 violations are a 

concern for a given PM10 area; or 

• Option 4: Delete the current PM10

hot-spot analysis requirements from the 

conformity rule and impose no hot-spot 

analysis requirements. 

For Options 2 and 3, EPA intends 

localized PM10 violations to be a 

concern if Clean Air Act requirements 

for projects are not met, that is, if 

projects create new or worsen existing 

PM10 violations. Although EPA has not 

proposed specific language in 

§ 93.123(b) for Options 3 and 4, EPA has 

described these options sufficiently in 

this preamble to include either or both 

of them in the final rule, if selected. 

For Options 2 and 3, EPA requests 

comment today on whether state and 

local agencies that do not already have 

established PM10 SIPs have information 

available to make such findings (‘‘hotspot findings’’), and what type of 

information would be available in the 

future for those limited number of PM10

areas without PM10 SIPs. An EPA or 

state hot-spot finding that localized 

PM10 violations are or are not a concern 

prior to PM10 SIP submission would be 

based on a case-by-case review of local 

factors for a given PM10 area. For 

example, such a review could consider 

the following local factors: PM10

monitoring data and proximity to the 

PM10 standard, future modeling 

projections and likelihood of new or 

worsening localized PM10 violations at 

transportation-related project locations, 

the prevalence of heavy-duty diesel 

vehicles at certain types of locations 

(e.g., highly congested intersections or 

large transit stations where significant 

traffic and engine idling occurs), sitespecific terrain, meteorology, etc. 

The proposed rule would require hotspot findings under the proposed 

options to be made only after 

discussions with federal, state, and local 

air quality and transportation agencies 

through the interagency consultation 

process for a given PM10 nonattainment 

area. A hot-spot finding would be made 

through a letter to the relevant state and 

local air quality and transportation 

agencies, MPO(s), FHWA, FTA, and 

EPA (in the case of a state air agency 

finding). A hot-spot finding under the 

proposed options would not be 

completed through EPA’s adequacy 

process for submitted SIPs with motor 

vehicle emissions budgets, as noted in 

Section III.A.2. of today’s supplemental 

proposal.

72150 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

2PM10 qualitative hot-spot guidance has already 

been issued, titled, ‘‘Federal Highway 

Administration Guidance for Qualitative Project 

Level ‘‘Hot Spot’’ Analysis in PM–10 

Nonattainment and Maintenance Areas,’’ September 

2001. This guidance can be downloaded from the 

following website: http://www.epa.gov/otaq/transp/

conform/policy.htm

3. PM10 Hot-Spot Analyses After SIP 

Submission 

EPA is proposing the following PM10

hot-spot options for project-level 

conformity determinations that occur 

after PM10 SIP submission: 

• Option A: Retain the existing 

conformity rule’s PM10 hot-spot analysis 

requirements for FHWA/FTA nonexempt projects in all PM10 areas with 

one minor addition, as described below; 

• Option B: Only require quantitative 

PM10 hot-spot analyses for projects at 

those types of locations that the PM10

SIP for a given area identifies as a 

localized PM10 air quality concern. No 

qualitative analyses would be required 

for projects in other types of locations, 

or in PM10 areas where the SIP does not 

identify types of locations as a localized 

PM10 air quality concern; or 

• Option C: Do not apply any PM10

hot-spot analysis requirements for any 

PM10 area and delete the current PM10

requirements from the conformity rule. 

EPA notes that all of these options 

were represented in the November 2003 

proposal. As described in Section III. for 

PM2.5 PM10 quantitative hot-spot 

analyses under Option B would only be 

required for projects at the types of 

locations identified as a concern in the 

PM10 SIP; no qualitative hot-spot 

analyses would be done for all other 

projects. This option would not require 

some type of hot-spot analyses for all 

projects in the PM10 nonattainment or 

maintenance area, as is currently 

required. If EPA finalizes Option B, we 

would provide guidance on how to 

identify locations where transportationrelated PM10 hot-spots may exist. The 

majority of PM10 areas already have an 

attainment demonstration or a 

maintenance plan; therefore, SIP 

revisions may be necessary under 

Option B to identify types of locations 

where quantitative analyses must be 

performed. 

As described in Section III. of today’s 

notice, examples of types of project 

locations include: 

• Highly congested intersections, 

• Large transit stations where 

significant traffic and engine idling 

occurs, 

• Long or steep grades, or 

• Monitors where the PM10 standard 

has been exceeded or violated. 

EPA requests comment on the above 

examples, and requests further 

information regarding other types of 

project locations where potential PM10

hot-spots could occur in a given area. 

Minor change to quantitative hot-spot 

requirements: For Option A, EPA is 

proposing one minor change to the 

existing conformity rule’s requirements 

for PM10 hot-spot analyses after PM10

SIPs are submitted. The proposal would 

add another criterion for when 

quantitative (rather than qualitative) 

analyses would be performed—in those 

types of project locations that the PM10

SIP identifies as a PM10 hot-spot 

concern. This criterion would only be 

relevant after the PM10 SIP is submitted. 

If EPA finalizes this minor change, it 

would apply to both PM2.5 and PM10

hot-spot analyses. This change is also 

being proposed in Section III. of today’s 

action for a similar option for PM2.5

analyses. Regulatory text for this minor 

change is in § 93.123(b)(1). 

Section 93.123(b)(1) currently 

requires quantitative PM10 hot-spot 

analyses for the following types of 

transportation projects: 

• Projects which are located at sites at 

which violations have been verified by 

monitoring data; 

• Projects which are located at sites 

which have vehicle and roadway 

emission and dispersion characteristics 

that are essentially identical to those of 

sites with verified violations (including 

sites near one at which a violation has 

been monitored); and 

• New or expanded bus and rail 

terminals and transfer points which 

increase the number of diesel vehicles 

congregating at a single location. 

EPA proposes to make a minor change 

to § 93.123(b)(1)(iii) to clarify that 

quantitative analyses would be required 

for such projects that significantly

increase the number of diesel vehicles, 

so that quantitative analyses are not 

required for insignificant vehicle 

increases with de minimis localized 

emissions increases. The proposed 

change may also cover the cases where 

the number of vehicles increases but 

emissions do not increase because the 

added vehicles are cleaner (e.g., 

retrofitted diesel vehicles). 

EPA notes that today’s action would 

not change § 93.123(b)(2) of the current 

rule for relevant options, which requires 

a qualitative hot-spot analysis of local 

factors for all other projects, rather than 

dispersion modeling. 

Section 93.123(b)(3) currently 

requires that the consultation process be 

used to identify the specific cases in a 

given nonattainment or maintenance 

area under which PM10 quantitative hotspot analyses are performed, and 

addresses categorical conformity 

determinations for certain transit 

projects and FTA actions in PM10 areas. 

A categorical conformity determination 

under the existing conformity rule and 

this proposal allows FTA to determine 

that a quantitative hot-spot analysis is 

not needed for a particular project if 

there is modeling that shows that such 

a project will not cause or contribute to 

new or worsening localized violations. 

Today’s proposal does not substantively 

change § 93.123(b)(3) for FTA actions on 

certain transit projects, and EPA is not 

requesting comment on this existing 

flexibility.

However, today’s proposal would 

modify § 93.123(b)(3) of the current 

conformity rule to allow FHWA to also 

make a categorical PM2.5 or PM10

conformity determination on certain 

roadways and intersections based on 

appropriate modeling of various 

configurations and activity levels. As 

described above, the current rule 

provides for such FTA categorical 

conformity determinations for only 

certain transit projects in PM10 areas. 

We request comment on allowing 

FHWA to make a categorical 

determination without additional PM10

hot-spot analyses if it believes this 

would meet Clean Air Act requirements. 

EPA also requests information on what 

types of roadway and intersection 

projects would be appropriately covered 

by this proposal. If finalized, EPA and 

DOT would consult on the development 

of additional guidance on the 

implementation of such a provision. See 

Section III.A.4. of today’s proposal for 

further information. 

4. Quantitative PM10 Hot-Spot Analyses 

and Future EPA Guidance 

If EPA finalizes an option that would 

require quantitative PM10 hot-spot 

analyses, we would provide guidance 

and appropriate models for carrying out 

such analyses in a timely manner.2

Section 93.123(b)(4) of the current rule 

does not require any quantitative PM10

hot-spot analyses until EPA releases 

quantitative modeling guidance and 

announces in the Federal Register that 

quantitative modeling requirements are 

in effect. EPA would consult with 

conformity stakeholders when 

developing PM10 quantitative guidance.

5. Other Requirements 

For options that require PM10 hot-spot 

analyses, EPA is proposing to continue 

to apply the general requirements for 

such analyses in §§ 93.123(c), 93.125(a), 

and other provisions of the current 

conformity rule for all PM10 hot-spot 

analyses. EPA is not proposing any 

substantive changes to these 

requirements. See Section III. of this 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72151

preamble or the proposed regulatory 

text for further general information 

regarding these requirements. 

B. Why Are We Proposing These 

Options? 

1. General 

EPA considered the following factors 

in developing the PM10 hot-spot options 

in the November 2003 proposal and 

today’s action: 

• The Clean Air Act conformity 

requirements for individual 

transportation projects in PM10 areas; 

• The current scientific 

understanding of PM10 hot-spots and 

public health effects; 

• The feasibility of implementing 

proposed options; and

• The impact of proposed options on 

state and local resources. 

As stated in the November 2003 

proposal, EPA believes it is important to 

re-evaluate the need for hot-spot 

analyses for PM10 nonattainment and 

maintenance areas. EPA is addressing 

hot-spots in PM10 areas, in addition to 

PM2.5 areas in this SNPRM, because of 

the similarity between sources of these 

two pollutants and the similarity of the 

requirements. For example, both types 

of particulate matter result from tailpipe 

emissions, as well as brake and tire 

wear, and in some areas, road dust. 

PM10 includes particles that are 2.5 

microns in diameter and smaller, as 

well as particles that range from 2.5 

microns to 10 microns. In addition, 

because we are soliciting comment on a 

range of options for hot-spot analyses in 

PM2.5 areas, EPA believes it is 

reasonable to seek comment on a similar 

range of options for hot-spot analyses in 

PM10 areas. We are soliciting input to 

guide our decision on the proposed 

options both before and after a PM10 SIP 

is submitted. The following paragraphs 

outline how the above factors relate to 

the proposed options. 

When the conformity rule was 

promulgated in 1993, EPA interpreted 

Clean Air Act section 176(c)(1)(B) to 

require PM10 hot-spot analyses because 

of the requirement to ensure that 

transportation activities do not create 

new violations, worsen existing 

violations or delay timely attainment of 

the air quality standard (January 11, 

1993, 58 FR 3776). Any option that is 

selected in the final rule must be 

consistent with these Clean Air Act 

requirements, which apply at all times 

for highway and transit project 

conformity determinations. 

EPA’s developing understanding of 

potential PM10 hot-spots is one of the 

factors that needs to be considered for 

applying the proposed options. EPA 

believes it is appropriate to focus 

conformity resources where air quality 

issues are significant and need to be in 

place to address Clean Air Act 

requirements. To that end, EPA will 

consider information that was available 

when the original conformity rule was 

developed, as well as new information 

that is submitted through the 

rulemaking process or has otherwise 

become available. For example, in 1993, 

EPA believed that typically sized bus 

terminals or transfer points would not 

create PM10 hot-spots, however, we 

decided that it was practical to require 

a determination to that effect to ensure 

that Clean Air Act requirements were 

met. We also believed at that time that 

direct PM10 emissions would be capable 

of causing violations only in conditions 

of unusually heavy diesel truck/bus 

traffic and limited dispersion, such as 

street canyons (January 11, 1993, 58 FR 

3780). On the other hand, EPA may not 

have fully considered the role of reentrained road dust in contributing to 

potential PM10 hot-spots. EPA will 

consider all past and current 

information on the potential for PM10

hot-spots in the development of the 

final rule. 

In addition, EPA will be considering 

in the final rule the impact of our new 

diesel fuel and engine standards 

(January 18, 2001, 66 FR 5002) for the 

necessity of applying any of the 

proposed options. Such standards are 

expected to significantly impact the 

amount of particulate emissions that 

will be emitted by new diesel vehicles, 

and consequently may impact the 

potential for PM10 transportation-related 

hot-spots. 

Understanding the potential for PM10

hot-spots provides a basis for 

determining when explicit hot-spot 

reviews must be required. As indicated 

in the November 3, 2003 proposal, 

section 176(c)(3)(B)(ii) specifically 

requires hot-spot analyses for projects 

only in CO nonattainment areas. 

EPA also considered the feasibility of 

implementing any proposed option to 

meet statutory requirements before and 

after PM10 SIP submission. We invite 

state and local agencies to comment on 

the feasibility of implementing all of the 

proposed options, including what state 

or local information would be available 

for implementation purposes. 

2. PM10 Hot-Spot Analyses Before SIP 

Submission 

EPA has proposed to apply the 

existing rule’s PM10 hot-spot 

requirements to PM10 areas before PM10

SIP submission (Option 1). EPA believes 

that this option would meet statutory 

requirements since it relies on the 

existing interpretation for the current 

conformity rule. In the November 24, 

1993 conformity rule (58 FR 62188), 

EPA promulgated the existing 

conformity requirements for PM10 hotspot analyses. Section 93.116 of the 

current conformity rule requires an 

explicit PM10 hot-spot review to be 

completed for all non-exempt federal 

projects in PM10 nonattainment and 

maintenance areas, regardless of 

whether or not a SIP has been 

submitted. EPA believed that emissions 

produced by individual highway and 

transit projects in PM10 nonattainment 

and maintenance areas could potentially 

result in a new air quality violation or 

worsen an existing violation. Option 1 

would continue to rely on this same 

rationale. 

EPA is also proposing today Options 

2 and 3 to apply current PM10 hot-spot 

requirements depending on whether or 

not new or worsening localized PM10

violations could occur in a given area 

prior to PM10 SIP submission. These 

options would rely on the proposed 

interpretation stated in the November 

2003 proposal (68 FR 62713): Clean Air 

Act section 176(c)(1)(B) requirements 

could be met as long as explicit reviews 

are performed at locations susceptible to 

PM10 hot-spots. If hot-spots are found 

not to be a potential concern (Option 2) 

in a given area, then EPA believes that 

statutory requirements could be met in 

these areas without an explicit hot-spot 

review. Conversely, if potential hotspots are found to be a concern (Option 

3) in a given area, then all project-level 

conformity determinations in these 

areas should include explicit hot-spot 

reviews to ensure that statutory 

requirements are met. Both of these 

options would allow EPA and states to 

target hot-spot requirements in PM10

nonattainment areas where hot-spots 

may or may not be an air quality 

concern.

Commenters should consider the 

practical impact of all of the options 

that are being proposed for the time 

period prior to PM10 SIP submission. 

Since most PM10 nonattainment and 

maintenance areas already have 

submitted or approved PM10 SIPs, the 

proposed options may impact a small 

number of PM10 areas. EPA requests 

information on the appropriateness of 

the proposed options in any PM10 areas 

without SIPs, including whether there 

are unique circumstances of these areas 

that would be relevant to the potential 

for PM10 hot-spots and necessity of 

project-level conformity analyses. 

As described in A.2. of this section, 

EPA is requesting comment on whether 

state and local air agencies that have not 

yet established PM10 SIPs will have the 

72152 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

necessary information to make the hotspot findings described in Options 2 

and 3. The appropriateness and 

feasibility of these options in meeting 

Clean Air Act requirements depends on 

whether well-considered, informed 

findings will be possible prior to PM10

SIP submission. 

EPA is again proposing Option 4 to 

not require any explicit PM10 hot-spot 

analysis for any project before PM10 SIP 

submission in PM10 nonattainment and 

maintenance areas. See the November 5, 

2003 proposal (68 FR 62713—62714) for 

further information. 

3. PM10 Hot-spot Analyses After SIP 

Submission 

EPA continues to consider the 

November 2003 proposal’s options for 

PM10 hot-spot analyses after SIP 

submission (Options A–C). Option A 

would continue to apply the existing 

rule’s PM10 hot-spot requirements (with 

a minor addition) after PM10 SIP 

submission. Similar to Option 1 for the 

time period before PM10 SIPs, EPA 

concludes that Option A would meet 

statutory requirements since it relies on 

existing rationale for the current 

conformity rule. 

Like similar PM2.5 hot-spot options 

discussed in Section III., EPA notes that 

retaining the current PM10 hot-spot 

requirements would ensure that 

potential transportation-related hotspots for all areas are addressed, 

especially in cases where it is not 

possible to determine through the SIP 

process the potential for localized PM10

violations in a given nonattainment or 

maintenance area. EPA will consider in 

the final rule the potential existence of 

PM10 hot-spots for transportation 

projects, and whether explicit hot-spot 

reviews will be needed to meet Clean 

Air Act requirements. Option A would 

require state and local resources be used 

for all FHWA/FTA non-exempt projects 

in PM10 areas, although the existing 

conformity rule and today’s proposal 

streamlines hot-spot analyses for 

projects that do not require quantitative 

analyses.

EPA also proposed Option B to 

require quantitative PM10 hot-spot 

analyses only at types of project 

locations identified as a localized air 

quality concern in a given PM10 SIP. 

When the SIP identifies such locations, 

a quantitative hot-spot analysis would 

be completed for affected projects. No 

qualitative analyses would be required 

for projects in other types of locations, 

or in PM10 areas where the SIP does not 

identify types of locations as a localized 

PM10 air quality concern. Under Option 

B, EPA is proposing quantitative hotspot analyses only for projects at 

locations identified in the SIP as a 

localized concern, since EPA believes 

that if a SIP identifies such a project 

location, then a more thorough 

examination of the localized impacts of 

projects at such locations is necessary to 

ensure that the SIP’s purpose and Clean 

Air Act conformity requirements are 

met. 

As indicated in the November 2003 

proposal, Option B is consistent with 

the purpose of conformity, which is to 

ensure that federally funded or 

approved transportation projects are 

consistent with the SIP in a given 

nonattainment or maintenance area. See 

Section III.B. for more information 

regarding similar rationale for PM2.5. 

However, it is unclear how Option B 

would be implemented in current PM10

nonattainment and maintenance areas 

since most PM10 areas may not have 

considered the potential for PM10 hotspots during the development of 

existing PM10 SIPs. In such cases, 

should existing SIPs be revised to 

consider potential PM10 hot-spots? 

Should states evaluate the potential for 

PM10 hot-spots outside the SIP process? 

How do the practical circumstances of 

Option B affect the other proposed PM10

options? EPA requests comments on all 

of these questions. 

Like PM2.5 SIPs, EPA is also 

considering whether PM10 SIPs can be 

developed so potential transportationrelated hot-spot locations are defined for 

each PM10 nonattainment and 

maintenance area. EPA is requesting 

comment on whether such cases could 

occur in PM10 areas, and whether other 

proposed options would be more 

appropriate in such cases after a PM10

SIP is submitted. EPA also requests 

comment on how the proposed options 

should be implemented in cases where 

the latest information available on the 

potential for PM10 hot-spots is not 

reflected in the PM10 SIP. See Section 

III.B.3. of today’s proposal for further 

information. 

EPA has committed to issue SIP 

guidance under this option if it is 

finalized. EPA requests further comment 

on whether state and local air quality 

agencies will have the necessary local 

information and resources to specify in 

PM10 SIPs which project locations are a 

potential PM10 hot-spot concern, in 

order to support Option B and provide 

flexibility in the conformity process. 

State and local agencies may identify 

types of locations in each PM10 SIP that 

may increase or decrease the kinds of 

projects requiring quantitative hot-spot 

analyses, as compared to current 

conformity requirements. EPA 

anticipates that this option would likely 

result in fewer total projects having 

some type of PM10 hot-spot review as 

compared to the current conformity 

rule’s requirements, since not all PM10

areas may have future PM10 SIPs that 

identify hot-spots as a concern. 

Finally, EPA is again proposing 

options for not requiring any explicit 

PM10 hot-spot analysis for any project 

after PM10 SIP submission (Option C), 

for reasons cited above and in the 

November 2003 proposal. 

4. Specific Analysis Requirements and 

Other Requirements 

EPA continues to believe it has 

discretion to define what level of PM10

hot-spot analysis would be required for 

proposed options that involve such 

analyses, as described in Section III. of 

today’s proposal. EPA believes that 

applying the current conformity rule’s 

approach would streamline hot-spot 

reviews and utilize state and local 

resources in an efficient and reasonable 

manner while still satisfying Clean Air 

Act requirements. 

Finally, EPA has proposed to add a 

new criterion for when quantitative 

PM10 hot-spot analyses are completed 

after a PM10 SIP is submitted for Option 

A. As stated in Section III.B., EPA 

believes that if Option A is finalized for 

PM10 hot-spot requirements, 

quantitative analyses should also be 

done if the PM10 SIP identifies certain 

types of locations as a PM10 hot-spot 

concern. Since the primary intent of the 

Clean Air Act is to ensure consistency 

between transportation decisions and 

SIP air quality objectives, it is 

appropriate to require more intensive 

hot-spot reviews in cases where the SIP 

specifically identifies a type of 

transportation project location as having 

the potential to increase local emissions 

and worsen air quality. EPA notes that 

this minor proposal would be consistent 

with a similar criterion in 

§ 93.123(a)(1)(i) of the existing rule’s 

requirements for quantitative CO hotspot analyses. 

EPA is also proposing to retain the 

existing conformity rule’s general 

provisions for conducting PM10 hot-spot 

analyses for those options that would 

apply the existing rule’s requirements. 

Examples would include related 

provisions in §§ 93.101, 93.123, and 

93.125 of the conformity rule. 

C. Request for PM10 Hot-Spot 

Information 

EPA again invites commenters to 

submit studies or data regarding PM10

hot-spots during the comment period for 

this supplemental proposal. All 

information submitted for the November 

2003 proposal and today’s action will be 

considered when EPA develops the final 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72153

rule that addresses PM10 hot-spot 

requirements. 

V. Minor Change for Compliance With 

PM2.5 SIP Control Measures 

Today EPA is proposing a small 

change to the footnote at the bottom of 

Table 2 in § 93.126. Section 93.126 is 

titled, ‘‘Exempt projects’’ and Table 2 

lists these projects under several 

different headings. Projects listed in the 

table are exempt from the requirement 

to determine conformity, and may 

proceed even in the absence of a 

conformity transportation plan and TIP.

Today’s proposed change would add 

‘‘and PM2.5’’ after ‘‘PM10’’ in the footnote 

at the bottom of Table 2. Currently, the 

footnote reads, ‘‘Note: In PM10

nonattainment or maintenance areas, 

such projects are exempt only if they are 

in compliance with control measures in 

the applicable implementation plan.’’

However, PM2.5 areas also need to be 

included in this note to make § 93.126 

consistent with § 93.117. In the July 1, 

2004, final rule, EPA updated § 93.117, 

which discusses compliance with 

control measures in PM areas, to 

include PM2.5 as well as PM10. EPA 

should have updated the footnote in 

§ 93.126 in the July 1, 2004 rule; we are 

proposing to correct this oversight in 

today’s action. With this change, 

projects on the exempt list in § 93.126 

would be exempt in a PM2.5 area only 

if they are in compliance with control 

measures in the applicable SIP. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, (58 FR 

51735; October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to 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 

otherwise 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; 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

It has been determined that this 

supplemental proposal is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 and 

is therefore not subject to review by the 

Office of Management and Budget 

(OMB). 

B. Paperwork Reduction Act 

The information collection 

requirements for this supplemental 

proposal have been submitted for 

approval to OMB under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq.

and as ICR 2130.02. The information 

collection requirements are not 

enforceable until OMB approves them. 

Transportation conformity 

determinations are required under Clean 

Air Act section 176(c) (42 U.S.C. 

7506(c)) to ensure that federally 

supported highway and transit project 

activities are consistent with (‘‘conform 

to’’) the purpose of the SIP. Conformity 

to the purpose of the SIP means that 

transportation activities will not cause 

or contribute to new air quality 

violations, worsen existing violations, or 

delay timely attainment of the relevant 

air quality standards. Transportation 

conformity applies under EPA’s 

conformity regulations at 40 CFR parts 

51.390 and 93 to areas that are 

designated nonattainment and those 

redesignated to attainment after 1990 

(‘‘maintenance areas’’ with SIPs 

developed under Clean Air Act section 

175A) for transportation-source criteria 

pollutants. The Clean Air Act gives EPA 

the statutory authority to establish the 

criteria and procedures for determining 

whether transportation activities 

conform to the SIP. 

Amendments in today’s supplemental 

proposal that are related to conformity 

requirements in existing PM10

nonattainment and maintenance areas 

do not impose any new information 

collection requirements from EPA that 

require approval by OMB under the 

Paperwork Reduction Act of 1980, 44 

U.S.C. 3501 et seq. An agency may not 

conduct or sponsor, and a person is not 

required to respond to a collection of 

information, unless it displays a 

currently valid OMB control number. 

The information collection requirements 

of EPA’s existing transportation 

conformity rule and any revisions in 

today’s action for existing PM10 areas 

are covered under the DOT information 

collection request (ICR) entitled, 

‘‘Metropolitan and Statewide 

Transportation Planning,’’ with the 

OMB control number of 2132–0529. 

EPA provided two opportunities for 

public comment on the incremental 

burden estimates for transportation 

conformity determinations under the 

new 8-hour ozone and PM2.5 standards. 

EPA received comments on both the 

initial burden estimates provided in the 

November 5, 2003 proposal (68 FR 

62720) and on the revised estimates in 

the January 2004 ICR (69 FR 336). EPA 

responded to all of these comments, 

including accounting for some PM2.5

hot-spot burden during the time period 

of the ICR in the final ICR that was 

submitted to OMB for approval for all 

aspects of the conformity rulemaking 

effort for the new air quality standards 

(ICR 2130.02). EPA estimated burden in 

this ICR based on implementing the 

most intensive options proposed. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a federal 

agency. This includes the time needed 

to review instructions; develop, acquire, 

install and utilize technology and 

systems for the purposes of collecting, 

validating, and verifying information, 

processing and maintaining 

information, and disclosing and 

providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information.

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

ICR 2130.02 is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act, as 

amended by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, requires the Agency to conduct a 

regulatory flexibility analysis of any 

significant impact a rule will have on a 

substantial number of small entities. 

Small entities include small businesses, 

small not-for-profit organizations and 

small government jurisdictions. 

For purposes of assessing the impacts 

of today’s final rule on small entities, 

small entity is defined as: (1) A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a 

72154 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This regulation directly affects federal 

agencies and metropolitan planning 

organizations that, by definition, are 

designated under federal transportation 

laws only for metropolitan areas with a 

population of at least 50,000. These 

organizations do not constitute small 

entities within the meaning of the 

Regulatory Flexibility Act. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

federal agencies to assess the effects of 

their regulatory actions on state, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this 

supplemental proposal itself does not 

contain a Federal mandate that may 

result in expenditures of $100 million or 

more for State, local, and tribal 

governments, in the aggregate, or the 

private sector in any one year. The 

primary purpose of this supplemental 

proposal is to determine requirements 

for hot-spot analyses in PM2.5 and PM10

nonattainment and maintenance areas. 

Clean Air Act section 176(c)(5) requires 

the applicability of conformity to such 

areas as a matter of law one year after 

nonattainment designations. Thus, 

although this rule explains how these 

analyses should be conducted, it merely 

implements already established law that 

imposes conformity requirements and 

does not itself impose requirements that 

may result in expenditures of $100 

million or more in any year. Thus, 

today’s supplemental proposal is not 

subject to the requirements of sections 

202 and 205 of the UMRA and EPA has 

not prepared a statement with respect to 

budgetary impacts. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The Clean Air 

Act requires conformity to apply in 

certain nonattainment and maintenance 

areas as a matter of law, and this 

supplemental action merely proposes to 

establish and revise procedures for 

transportation planning entities in 

subject areas to follow in meeting their 

existing statutory obligations. Thus, 

Executive Order 13132 does not apply 

to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175: ‘‘Consultation 

and Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

6, 2000) requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by tribal 

officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and the Indian tribes, or on 

the distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’

Today’s proposed amendments to the 

conformity rule do not significantly or 

uniquely affect the communities of 

Indian tribal governments, as the Clean 

Air Act requires transportation 

conformity to apply in any area that is 

designated nonattainment or 

maintenance by EPA. This 

supplemental proposal would 

incorporate into the conformity rule 

provisions addressing newly designated 

PM 2.5 nonattainment and maintenance 

areas subject to conformity requirements 

under the Act that would not have 

substantial direct effects on tribal 

governments, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes, 

as specified in Executive Order 13175. 

Accordingly, the requirements of 

Executive Order 13175 are not 

applicable to this supplemental 

proposal. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

and Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 72155

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This supplemental proposal is not 

subject to Executive Order 13045 

because it is not economically 

significant within the meaning of 

Executive Order 12866 and does not 

involve the consideration of relative 

environmental health or safety risks on 

children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This supplemental proposal is not 

subject to Executive Order 13211, 

‘‘Action Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355; May 

22, 2001) because it will not have a 

significant adverse effect on the supply, 

distribution, or use of energy. Further, 

we have determined that this 

supplemental proposal is not likely to 

have any significant adverse effects on 

energy supply. 

I. National Technology Transfer and 

Advancement Act

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This supplemental proposal does not 

involve technical standards. Therefore, 

the use of voluntary consensus 

standards does not apply to this 

supplemental proposal.

List of Subjects in 40 CFR Part 93

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Transportation, Volatile organic 

compounds.

Dated: December 7, 2004. 

Michael O. Leavitt, 

Administrator.

For the reasons set out in the 

preamble, 40 CFR part 93 is proposed to 

be amended as follows:

PART 93—[AMENDED] 

1. The authority citation for part 93 

continues to read as follows:

Authority: 42 U.S.C. 7401–7671q.

§ 93.101 [Amended] 

2. Section 93.101 is amended in the 

first sentence of the definition for ‘‘Hotspot analysis’’ by removing ‘‘CO and 

PM10’’ and adding in its place ‘‘CO, 

PM10, and/or PM2.5’’. 

3. Section 93.105(c)(1)(v) is revised to 

read as follows:

§ 93.105 Consultation.

* * * * *

(c) * * *

(1) * * *

(v) Identifying, as required by 

§ 93.123(b), projects located at sites in 

PM10 and PM2.5 nonattainment areas 

which have vehicle and roadway 

emission and dispersion characteristics 

which are essentially identical to those 

at sites which have violations verified 

by monitoring, and therefore require 

quantitative PM10 and/or PM2.5 hot-spot 

analysis;

* * * * *

4. Section 93.109 is amended as 

follows: 

a. In Table 1 of paragraph (b), revising 

both entries for ‘‘§ 93.116’’; 

b. By redesignating paragraphs (i)(1) 

and (2) as paragraphs (i)(2) and (3) and 

adding new paragraph (i)(1); 

c. In paragraph (k) by removing ‘‘CO 

and PM10’’ and adding in its place ‘‘CO, 

PM10, and PM2.5’’; and 

d. In paragraph (l)(1) by removing 

‘‘(‘‘Localized CO and PM10 violations 

(hot spots)’’)’’ and adding in its place 

‘‘(‘‘Localized CO, PM10, and PM2.5

violations (hot-spots)’’)’’.

§ 93.109 Criteria and procedures for 

determining conformity of transportation 

plans, programs, and projects: General.

* * * * *

(b) * * *

TABLE 1.—CONFORMITY CRITERIA

*****

§ 93.116 ..................... CO, PM10, and PM2.5

hot spots 

*****

§ 93.116 ..................... CO, PM 10, and PM 2.5

hot spots 

*****

* * * * *

(i) * * *

(1) FHWA/FTA projects in PM2.5

nonattainment or maintenance areas 

must satisfy the appropriate hot-spot 

test required by § 93.116(a).

* * * * *

5. In §93.116 the section heading and 

paragraph (a) are revised to read as 

follows:

§ 93.116 Criteria and procedures: 

Localized CO, PM10, and PM2.5 violations 

(hot-spots). 

(a) This paragraph applies at all times. 

The FHWA/FTA project must not cause 

or contribute to any new localized CO, 

PM10, and/or PM2.5 violations or 

increase the frequency or severity of any 

existing CO, PM10, and/or PM2.5

violations in CO, PM10, and PM2.5

nonattainment and maintenance areas. 

This criterion is satisfied if it is 

demonstrated that during the time frame 

of the transportation plan (or regional 

emissions analysis) no new local 

violations will be created and the 

severity or number of existing violations 

will not be increased as a result of the 

project. The demonstration must be 

performed according to the consultation 

requirements of § 93.105(c)(1)(i) and the 

methodology requirements of § 93.123.

* * * * *

6. Section 93.123 is amended as 

follows: 

a. Revising the section heading; 

b. Revising the first sentence of 

paragraph (a)(1) introductory text; 

c. Amending paragraph (b) by either: 

Under Option A 

i. Revising paragraph (b)(1)(iii); 

ii. Adding new paragraph (b)(1)(iv); 

and 

iii. Revising paragraph (b)(3); or 

Under Option B 

i. Revising paragraph (b)(1) and (2); 

and 

ii. Removing paragraph (b)(3) and 

redesignating paragraph (b)(4) as (b)(3); 

d. Amending paragraph (c)(4) by 

removing ‘‘PM10 or CO’’ in the first 

sentence and adding in its place ‘‘CO, 

PM10, or PM2.5’’; and e. Amending 

paragraph (c)(5) by removing ‘‘CO and 

PM10’’ in the first sentence and adding 

in its place ‘‘CO, PM10, and PM2.5’’.

§ 93.123 Procedures for determining 

localized CO, PM10, and PM2.5

concentrations (hot-spot analysis). 

(a) CO hot-spot analysis. (1) The 

demonstrations required by § 93.116 

(‘‘Localized CO, PM10, and PM2.5

violations’’) must be based on 

quantitative analysis using the 

applicable air quality models, data 

bases, and other requirements specified 

72156 Federal Register / Vol. 69, No. 238 / Monday, December 13, 2004 / Proposed Rules 

in 40 CFR part 51, Appendix W 

(Guideline on Air Quality 

Models).* * *

* * * * *

Option A for paragraph (b):

(b) PM10 and PM2.5 hot-spot analyses.

(1) * * *

(iii) New or expanded bus and rail 

terminals and transfer points which 

significantly increase the number of 

diesel vehicles congregating at a single 

location; 

(iv) Projects in or affecting locations, 

areas, or categories of sites which are 

identified in the PM10 or PM2.5

applicable implementation plan or 

implementation plan submission, as 

appropriate, as sites of violation or 

possible violation.

* * * * *

(3) The identification of the sites 

described in paragraphs (b)(1)(i), (ii), 

(iii), and (iv) of this section, and other 

cases where quantitative methods are 

appropriate, shall be determined 

through the interagency consultation 

process required in § 93.105. DOT, in 

consultation with EPA, 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. DOT, 

in consultation with EPA, may also 

choose to make a categorical conformity 

determination on roadways and 

intersection based on appropriate 

modeling of various configurations and 

activity levels.

* * * * *

Option B for paragraph (b):

(b) PM10 and PM2.5 hot-spot analyses.

(1) The hot-spot demonstration required 

by § 93.116 must be based on 

quantitative analysis methods for 

projects in or affecting locations, areas, 

or categories of sites which are 

identified in the PM10 or PM2.5

applicable implementation plan or 

implementation plan submission, as 

appropriate, as sites of violation or 

possible violation. 

(2) The identification of the sites 

described in paragraph (b)(1) of this 

section shall be determined through the 

interagency consultation process 

required in § 93.105. DOT, in 

consultation with EPA, 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. DOT, 

in consultation with EPA, may also 

choose to make a categorical conformity 

determination on roadways and 

intersection based on appropriate 

modeling of various configurations and 

activity levels.

* * * * *

§ 93.125 [Amended] 

7. Section 93.125(a) is amended by 

removing ‘‘PM10 or CO’’ in the first 

sentence and adding in its place ‘‘CO, 

PM10, or PM2.5’’.

§ 93.126 [Amended] 

8. Section 93.126 is amended in 

footnote 1 by removing ‘‘PM10’’ and 

adding in its place ‘‘PM10 and PM2.5’’.

§ 93.127 [Amended] 

9. Section 93.127 is amended by 

removing ‘‘CO or PM10’’ and adding in 

its place ‘‘CO, PM10, or PM2.5’’.

[FR Doc. 04–27171 Filed 12–10–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 67

[Docket No. FEMA–P–7665] 

Proposed Flood Elevation 

Determinations

AGENCY: Federal Emergency 

Management Agency, Emergency 

Preparedness and Response Directorate, 

Department of Homeland Security.

ACTION: Proposed rule.

SUMMARY: Technical information or 

comments are requested on the 

proposed Base (1% annual-chance) 

Flood Elevations (BFEs) and proposed 

BFE modifications for the communities 

listed below. The BFEs and modified 

BFEs are the basis for the floodplain 

management measures that the 

community is required either to adopt 

or to show evidence of being already in 

effect in order to qualify or remain 

qualified for participation in the 

National Flood Insurance Program 

(NFIP).

DATES: The comment period is ninety 

(90) days following the second 

publication of this proposed rule in a 

newspaper of local circulation in each 

community.

ADDRESSES: The proposed BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below.

FOR FURTHER INFORMATION CONTACT:

Doug Bellomo, P.E., Hazard 

Identification Section, Emergency 

Preparedness and Response Directorate, 

Federal Emergency Management 

Agency, 500 C Street, SW., Washington, 

DC 20472, (202) 646–2903.

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

makes the final determinations listed 

below for the modified BFEs for each 

community listed. These modified 

elevations have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Mitigation Division 

Director of the Emergency Preparedness 

and Response Directorate has resolved 

any appeals resulting from this 

notification. 

These proposed BFEs and modified 

BFEs, together with the floodplain 

management criteria required by 44 CFR 

60.3, are the minimum that are required. 

They should not be construed to mean 

that the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own, or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These proposed elevations are used to 

meet the floodplain management 

requirements of the NFIP and are also 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in these 

buildings. 

National Environmental Policy Act 

This proposed rule is categorically 

excluded from the requirements of 44 

CFR part 10, Environmental 

Consideration. No environmental 

impact assessment has been prepared. 

Regulatory Flexibility Act 

The Mitigation Division Director of 

the Emergency Preparedness and 

Response Directorate certifies that this 

rule is exempt from the requirements of 

the Regulatory Flexibility Act because 

modified base flood elevations are 

required by the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are required to maintain community 

eligibility in the NFIP. No regulatory 

flexibility analysis has been prepared. 

Regulatory Classification 

This proposed rule is not a significant 

regulatory action under the criteria of 

Section 3(f) of Executive Order 12866 of 

September 30, 1993, Regulatory 

Planning and Review, 58 FR 51735.